1 s-148-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 148 Of 2009. Syndicate Bank. ... Plaintiffs. vs. Tarunkumar Nirobehari & Anr. ... Defendants. .... Ms. Pramila Bhaingade, i/b. M. Janardhan, for Plaintiffs. None for Defendants. .... CORAM: S.J. KATHAWALLA, J. DATE : 27TH JANUARY 2011. P.C.: 1. The Plaintiffs are Syndicate Bank, a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Tarunkumar Nirobheri, Defendant No. 1 is the principal borrower of a personal loan taken from the Plaintiffs, who has his place of residence at 12, Chandralok Apartments, 3rd Floor, Agashi Road, Virar, Dist-Thane 431 242. Vinaykumar V. Sawant, Defendant No. 2 is the guarantor having guaranteed the personal loan facility availed by Defendant No. 1, who has his place of residence at 201/A, Anant Regency, Near Suresh Cable, Rambaug Lane, Kalyan (E), Dist – Thane 421 301. The Plaintiffs are seeking an ex-parte decree against the Defendants for non payment of amount due and payable with respect to personal loan taken from the Plaintiffs. 2. The Plaintiffs have tendered affidavit of evidence of Shri Prakash Chand I. Jajoria dated January 17, 2011, who is working as a Chief Manager of the Plaintiffs. The said evidence is taken on record 2 s-148-09 and marked ‘X’ for identification. Power of attorney dated March 27, 1981 issued by the Plaintiffs in favour of Shri P.C. Jajoria to file the affidavit of evidence is marked as Exhibit P-1. 3. The Plaintiffs have stated in the plaint as well as in the affidavit of evidence that:- (i) In response to an application dated September 16, 2004 submitted by the Defendant No. 1 for a personal loan of Rs. 2,00,000 for the purpose of higher education of his daughter, the Plaintiffs on September 16, 2004 sanctioned a sum of Rs. 2,00,000 under Demand Loan Scheme repayable with interest at 13.5% per annum at monthly rests. Defendant No. 2 stood as guarantor to the said facility. The original application for personal loan dated September 16, 2004 is marked as Exhibit P-2. A stamped receipt for the loan amount of Rs. 2,00,000 executed by the Defendant No. 1 dated September 16, 2004 is marked as Exhibit P-3. (ii) Defendant No. 1 executed a General Agreement on September 16, 2004 in favour of the Plaintiffs for Rs. 2,00,000. The original general agreement dated September 16, 2004 is marked as Exhibit P-4. (iii) Defendant No. 2 executed a Guarantee Agreement dated September 16, 2004 in favour of the Plaintiffs. The original guarantee agreement dated September 16, 2004 is marked as Exhibit P-5. (iv) Defendant No. 1 undertook to repay the loan by paying 60 equal monthly instalments of Rs. 4,683 effective from October 16, 2004 with interest at 13.5% per annum 3 s-148-09 compounded monthly till repayment of entire loan amount with interest. Further, in the event of default in repayment of the amount or not regularizing the account, 2.5% interest over the agreed rate on the amount outstanding with a minimum of 16% from the date of such default till the date of payment and/or realization was agreed to be paid. (v) In spite of repeated requests of the Plaintiffs, the Defendants failed and neglected to pay the amount due and payable to the Plaintiffs. The Plaintiffs through their advocate, issued legal notice dated August 21, 2006 and called upon the Defendants to pay to the Plaintiffs the outstanding amount due under the said credit facilities within 15 days of the receipt of the notice, on failure of which the Plaintiffs would initiate legal action against the Defendants. A copy of the legal notice dated August 31, 2006 is marked as Exhibit P-6. (vi) As per the statement of accounts as on September 21, 2008, the Defendants were bound and liable to pay jointly and severally a sum of Rs. 3,09,129.67 together with interest thereon at 16.5% per annum compounded at monthly rests and in the event of default in repayment of the amount or not regularizing the account, 2% interest over the agreed rate on the amount outstanding with a minimum of 18% from the date of such default till the date of payment. The statement of accounts as on September 21, 2008 is marked as Exhibit P-7. 4 s-148-09 (vii) Defendants are liable to pay to the Plaintiffs jointly and severally a sum of Rs. 3,09,129.67 together with interest at 16.5% per annum calculated monthly from the date of filing suit till payment of realisation. The particulars of claim is marked as Exhibit P-8. 4. I have gone through the averments made in the plaint and also the contents of the affidavit of evidence along with the compilation of documents filed by the Plaintiffs. From Exhibits P-2 to P-5 it is established that the Defendant No. 1 applied to the Plaintiffs for a personal loan under the Demand Loan Scheme which was sanctioned by the Plaintiffs for a sum of Rs. 2,00,000 on terms and conditions as mentioned in Exhibit P-3 and received by the Defendant No. 1 on September 16, 2004. Defendant No. 2 was the guarantor for the said loan. From Exhibit P-6 it is established that the Defendants were called upon to make payment of the sum outstanding with respect to the said loan but the Defendants failed to comply with the same. From Exhibits P-7 and P-8 it is established that the outstanding amount with respect to the said loan is Rs. 3,09,129.67. 5. The Plaintiffs attempted to serve the writ of summons on the Defendants. As set out in the affidavit dated March 17, 2009, the packet containing the writ of summons transmitted to Defendant No. 1 was returned with the remark “Left” and the packet sent to Defendant No. 2 was duly received. The writ of summons was therefore served on Defendant No. 1 by substituted service by publishing the same in the Free Press Journal dated January 18, 2010 in English and also in Navasakhti dated January 18, 2010 in Marathi. The Defendants have not come forward to defend the suit and have not filed their written statement. In view thereof, what is stated by the Plaintiffs has gone unchallenged. There is no reason why what the 5 s-148-09 Plaintiffs have stated in the plaint as well as in the affidavit of claim should not be accepted. 6. In my view, the relief sought by the Plaintiffs is required to be granted. In view thereof, I pass the following order:- (i) The Defendants are ordered and decreed to pay to the plaintiffs a total sum of Rs. 3,09,129.67 along with simple interest at 12% from the date of filing of the suit till the payment and / or realisation. (ii) Defendants to pay costs to the Plaintiffs for this suit. (iii) The suit is accordingly disposed of in favour of the Plaintiffs and against the Defendants. [S.J. KATHAWALLA, J.]