1 SUIT 716.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 716 Of 2009 Canara Bank Plaintiffs versus Sushil Pandey & another Defendants Mr.Srinivas R. Padiyar for plaintiffs. None for Defendants CORAM: S.J. KATHAWALLA, J. DATE : 1st FEBRUARY 2011 JUDGMENT :- 1. The Plaintiffs are Canara Bank, a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. The Plaintiffs are seeking an ex-parte decree against Sunil Pandey and Sudarshan Pandey, Defendant Nos. 1 and 2 respectively, residing at 201/37, Chandresh Accord, Opp. Silver Park, Mira Road (E), Dist. Thane – 401107 and having their office at Pandey Securities Services Private Limited, Sag – Baug, Opp. Mahalaxmi Hotel, Marol Naka, Andheri (E), Mumbai – 400057 for non payment of Canbudget Loan Facility granted by the Plaintiffs to the Defendants. 2. The Plaintiffs have tendered affidavit of evidence of Pradyumna M. N. dated January 24, 2011, who is an officer of the Plaintiffs at Narayan Building, 1st Floor, Andheri-Kurla Road, Sakinaka, Mumbai - 400072. The said evidence is taken on record and marked ‘X’ for 2 SUIT 716.2009 identification. General Power of Attorney dated May 20, 2002 granted in favour of Pradyumna M. N. to file the affidavit of evidence is marked as Exhibit P-1. 3. The Plaintiffs have stated in the plaint as well as the affidavit of evidence that:- a) The Defendants had applied for personal loan to the Plaintiffs for financial assistance in the nature of Canbudget Loan Facility for the purpose of domestic requirement. Defendant no. 1 is the principal borrower. Defendant no. 2 is a co-obligant for the loan and agreed to pay the loan amount with interest. b) Pursuant to loan application made by the Defendants dated January 16, 2006 to the Plaintiffs, a sum of Rs. 80,000 was sanctioned / granted by the Plaintiffs. The Defendant Nos. 1 and 2 agreed to pay the said loan amount of Rs. 80,000 in 60 equated monthly instalments of Rs. 1,800 each with interest thereon at the rate of 12% per annum compounded on a monthly basis. The loan application dated January 16, 2006 made by the Defendants to the Plaintiffs is marked as Exhibit P-2. c) Vide sanction letter dated January 17, 2006 issued by the Plaintiffs to the Defendants, the said loan amount of Rs. 80,000 with interest thereon at the rate of 12% at Rs. 1,800 monthly instalments each for 60 months was granted to the Defendants with effect from February 2006. The sanction letter dated January 17, 2006 issued by the Plaintiffs to the Defendants is marked as Exhibit P-3. d) A ‘Take Delivery Letter’ dated January 19, 2006 for Rs. 80,000 was executed by the Defendant Nos. 1 and 2 in favour of the Plaintiffs requesting the Plaintiffs to take delivery of the ‘On Demand Promissory Note’ dated January 19, 2006 for Rs. 80,000 duly executed 3 SUIT 716.2009 by the Defendants in the favour of the Plaintiffs. The Defendant Nos. 1 and 2, vide their ‘On Demand Promissory Note’, jointly and severally promised to pay the Pliantiffs Rs. 80,000 with interest at 1.25% above ongoing PLR with a minimum of 12% per annum compounded monthly/ quarterly/ half yearly for value received. The ‘On Demand Promissory Note’ and 'Take Delivery Letter' executed by the Defendants are marked as Exhibits P-4 and P-5 respectively. e) Thereafter the Plaintiffs through their advocate sent a Bank notice to the Defendant Nos. 1 and 2 dated October 10, 2006 and called upon the Defendants to pay to the plaintiffs a total sum of Rs. 25,805 due and payable as on October 20, 2008 with further interest at the rate as mentioned therein. The Plaintiffs have submitted that the Defendants have neither sent any reply to the said notice nor paid amount demanded in the said notice. The said Bank notice dated October 20, 2008 is marked as Exhibit P-6. f) The Plaintiffs maintained a separate account in the name of the Defendants in respect of the loan granted to the Defendants in which all credit and debit entries are made during the course of their regular business. Statement of accounts for the period January 19, 2006 to December 16, 2008 is marked as Exhibit P-7. g) Defendant Nos. 1 and 2 have paid a sum of Rs. 10,537 since the filing of the suit and the Defendants are bound and liable to pay a sum of Rs. 69,463 together with interest thereon at 15% per annum effective from January 2, 2006 compounded annually and overdue interest at 2% per annum over the agreed rate for the overdue period as per the Reserve Bank guidelines and also as per the Plaintiffs’ banking practise as applicable from January 2, 2009 till payment and / or realisation. Particulars of claim is marked as Exhibit P-8. 4 SUIT 716.2009 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 Exhibit P-2 it is established that the Defendants made an application on January 16, 2006 for a Canbudget Loan Facility for domestic purpose to the Plaintiffs. From Exhibit P-3 it is established that the said loan was sanctioned on January 17, 2006 by the Plaintiffs for Rs. 80,000 on terms and conditions mentioned therein. From Exhibits P-4 and P-5 it is established that the Defendants promised to pay the said loan amount on the terms and conditions mentioned therein. From Exhibit 6 it is established that the Defendants were called upon to make payment of the outstanding amounts but failed and neglected to pay the same as and when they became due. From Exhibits P-7 and P-8 it is established that Defendants are liable to pay a sum of Rs. 69,463 under the said loan. 5. The Plaintiffs attempted to serve the writ of summons on the Defendants. As set out in the affidavit dated June 12, 2009, the Defendants were served the writ of summons on April 20, 2009. 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 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:- A) The Defendants are ordered and decreed to pay to the Plaintiffs a total sum of Rs. 69,463 along with simple interest at 12% per annum from January 2, 2009 till payment and / or realisation. B) The Defendants to pay costs to the Plaintiffs for this suit. 5 SUIT 716.2009 C) The suit is accordingly disposed of in favour of the Plaintiffs and against the Defendants. (S.J. KATHAWALLA, J.)