1 s-475-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 475 Of 2009. Canara Bank. ... Plaintiffs. vs. Sushil Pandey & Anr. ... Defendants. .... Mr. Shrinivas Padiyar for Plaintiffs. None for Defendants. .... CORAM: S.J. KATHAWALLA, J. DATE: 1ST FEBRUARY 2011. P.C. 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 Sushil 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 14, 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 identification. General Power of Attorney dated May 2 s-475-09 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 that:- (i) 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. The Plaintiffs state that Defendant no. 2 is a co-obligant for the loan and agreed to pay the loan amount with interest. (ii) 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 15% 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. (iii) Vide sanction letter dated January 17, 2006 issued by the Plaintiff to the Defendants, the said loan amount of Rs. 80,000 at 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. 3 s-475-09 (iv) 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. The said letter was issued requesting the Plaintiffs to take delivery of the ‘On Demand Promissory Note’ dated January 19, 2006 for Rs. 80,000 duly executed 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 Plaintiffs Rs. 80,000 with interest at 1.25% above/below ongoing PLR with a minimum of 12% per annum compounded monthly/ quarterly/ half yearly for value received. The said ‘Take Delivery Letter’ and the ‘On Demand Promissory Note’ executed by the Defendants are marked as Exhibit P-4. (v) 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 the their regular business. Statement of accounts for the period January 19, 2006 to December 16, 2008 is marked as Exhibit P-5. (vi) After giving effect to the instalments paid by the Defendant no. 1 in respect of the said loan facility, the Defendant nos. 1 and 2 are jointly and severally liable to pay to the Plaintiffs as on date of filing suit a sum of Rs. 63,315 with further interest thereon at 15% per annum compounded annually and overdue interest at 2% per annum as applicable from January 2, 2009 till payment and / or realisation. Particulars of claim is marked as Exhibit P-6. 4 s-475-09 (vii) Thereafter the Plaintiffs sent a Bank notice to the Defendant nos. 1 and 2 and by the said notice, the Plaintiffs called upon the Defendants to pay a total sum of Rs. 22,406 due and payable as on October 20, 2008 with further interest at the rate mentioned. 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 has been annexed to the plaint as Exhibit E. 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 by the Plaintiffs for Rs. 80,000 on terms and conditions mentioned therein. From Exhibit P-4 it is established that the Defendants promised to pay the said loan amount at the terms mentioned therein. From Exhibit P-5 it is established that defendants are liable to pay a sum of Rs. 63,315 out of loan amount of Rs. 80,000. From Exhibit P-6 it is established that the Defendants are liable to pay to the Plaintiffs a sum of Rs. 63,315 along with interest at thereon at 15% per annum compounded annually and overdue interest at 2% per annum as applicable from January 2, 2009 till payment and / or realisation. From Exhibit E to the plaint 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. 5 s-475-09 5. The Plaintiffs attempted to serve the writ of summons on the Defendants. As set out in the affidavit dated June 25, 2009, the packets containing the writ of summons transmitted to the Defendants were returned with the remark “Unclaimed”. 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. 63,315 along with simple interest at 12% per annum from January 2, 2009 till payment and / or realisation. (ii) The 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.]