1 s-216-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 216 Of 2009. Syndicate Bank. ..Plaintiffs. vs. Senthil Kumar Ganeshan & Anr. ..Defendants. .... Ms. Sandhya Nanavare, i/b. M. Janardhan, for Plaintiffs. None for Defendants. .... CORAM: S.J. KATHAWALLA, J. DATE : 1ST FEBRUARY 2011. P.C. 1. The plaintiffs are Syndicate Bank, a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Senthil Kumar Ganeshan, Defendant No. 1 is the principal borrower of a personal loan taken from the Plaintiffs, who has his place of residence at Flat No. 202, Darshan Hight Co-operative Housing Society, Padma Nagar, Chiko Wadi, Borivli West, Mumbai 400 092 12. Firoz Y. Kapadia, Defendant No. 2, is the guarantor having guaranteed the personal loan facility availed by Defendant No. 1, who has his place of residence at C 404, 22 Kapadia Complex, Amrut Nagar, Jogeshwari (W), Mumbai 400 102. 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 Sunanda Ridhorkar dated January 15, 2011, who is working as an officer of the Plaintiffs. The said evidence is taken on record and marked ‘X’ for identification. Power of attorney dated February 9, 1988 issued by the Plaintiffs in favour of Sunanda Ridhorkar 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 19, 2004 submitted by the Defendant No. 1 for a personal loan of Rs. 1,00,000, the Plaintiffs on September 24, 2004, sanctioned a 2 s-216-09 sum of Rs. 1,00,000 under Demand Loan facility 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 19, 2004 is marked as Exhibit P-2. The original sanction letter issued by the Plaintiffs to Defendant No. 1 is marked as Exhibit P-3. A stamped receipt for the loan amount of Rs. 1,00,000 executed by the Defendant No. 1 dated September 24, 2004 is marked as Exhibit P-4. (ii) The Defendant No. 1 executed a General Agreement on September 24, 2004 in favour of the Plaintiffs for Rs. 1,00,000. The original General Agreement dated September 24, 2004 is marked as Exhibit P-5. (iii) The Defendant No. 2 executed a Guarantee Agreement dated September 24, 2004 in favour of the Plaintiffs guaranteeing the repayment of the loan taken by the Defendant No. 1. The original Guarantee Agreement dated September 24, 2004 is marked as Exhibit P-6. (iv) The Defendant No. 1 undertook to repay the loan by paying 36 equal monthly instalments of Rs. 3,400 effective from October 24, 2004 with interest at 13.5% per annum 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 November 7, 2008 and called upon the Defendants to pay to the Plaintiffs the outstanding amount due under the said credit facilities within 15 days of the 3 s-216-09 receipt of the notice, on failure of which the Plaintiffs would initiate legal action against the Defendants. A copy of the legal notice dated November 7, 2008 is marked as Exhibit P-7. (vi) As per the statement of accounts as on November 14, 2008, the Defendants were bound and liable to pay jointly and severally a sum of Rs. 1,10,966.17 together with interest thereon at 18.5% 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 17% from the date of such default till the date of payment. The statement of accounts as on November 14, 2008 is marked as Exhibit P-8. (vii) The Defendants are liable to pay to the Plaintiffs jointly and severally a sum of Rs. 1,10,966.17 together with interest at 18.5% per annum calculated monthly from the date of filing of the suit till payment or realisation. The particulars of claim is marked as Exhibit P-9. 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-4 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. 1,00,000 on terms and conditions set out in Exhibit P-3 and received by the Defendant No. 1 on September 24, 2004. From Exhibits P-5 and P-6 it is established that the Defendant No. 1 executed a general agreement in favour of the Plaintiffs with respect to the said loan and Defendant No. 2 was the guarantor for the said loan. From Exhibit P-7 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-8 and P-9 it is established that the outstanding amount with respect to the said 4 s-216-09 loan is Rs. 1,10,966.17 and the Plaintiffs are entitled to receive the said amount. 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 the Defendant No. 2 was returned with the remark “Unclaimed”. The writ of summons was therefore served 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 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. 1,10,966.17 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.]