1 s-190-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 190 OF 2009. Punjab and Sind Bank, A Body Corporate Constituted under the provisions of Banking Companies (Acquisition & Transfer of Undertakings), having its Head Office at 21, Rajendra Place, New Delhi and one of its Branch Office at Bhandup Branch, Mumbai ..Plaintiffs. vs. 1. Mr. Vijay Kumar Angrak Jha, Sole Prop. Of M/s Komal Priniters, residing at 14/1, Opp. Jai Bharat High School, Mulund Colony, Mumbai 400 080. 2. Kamalnath Jha and, residing at 303, Prince Rose Garden,Mulund, Mumbai 400 082. 3. Kiran Kumar Jha residing at 21, M, Saraswati Chowk, Mulund Colony, Mumbai 400 082. ..Defendants. .... Mr. Sayed Mehboobalie, i/by S. H. Patel, for Plaintiffs. None for Defendants. .... CORAM : S.J. KATHAWALLA, J. DATE : 4TH FEBRUARY 2011. JUDGMENT : The Plaintiffs are Punjab and Sind 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 the Defendants for non payment of business loan 2 s-190-09 granted by the Plaintiffs to the Defendants. Vijay Kumar Angrak Jha, Defendant No. 1, is the principal borrower of the said loan. Kamalnath Jha and Kiran Kumar Jha, Defendant Nos. 2 and 3, are the guarantors for the loan taken by Defendant No. 1. 2. The Plaintiffs have tendered affidavit of evidence of Jibanand Bhattacharya dated February 1, 2011, who is a Manager of the Plaintiffs. The said evidence is taken on record and marked ‘X’ for identification. Power of Attorney dated August 31, 2009 granted in favour of Jibanand Bhattacharya by the Plaintiffs 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 Defendant No. 1 had approached the Plaintiffs with a request to grant business loan for purchase of machine to the extent of Rs. 75,000 pursuant to which the Plaintiffs sanctioned the said business loan to the Defendant No. 1 to the extent of Rs. 75,000 with interest thereon at 13.50% by sanction letter dated November 10, 2003. The original sanction letter of the Plaintiffs is marked as Exhibit P-2. b. In consideration of the said loan, Defendant No. 1 executed a promissory note in favour of the Plaintiffs on November 20, 2003. The original promissory note dated November 20, 3003 is marked as Exhibit P-3. c. Defendant No. 1 executed the following documents with respect to the above loan (original documents):- 3 s-190-09 (i) Form No. 103 marked as Exhibit P-4. (ii)Form No. 106 marked as Exhibit P-5. (iii)Form No. 122 marked as Exhibit P-6. (iv)Form No. 412 marked as Exhibit P-7. (v)Form No. 291 marked as Exhibit P-8. (vi)Letter of authority dated November 20, 2003 to debit expenses marked as Exhibit P-9. d. Defendant No. 1 also executed in favour of the Plaintiffs an Agreement of Hypothecation on November 20, 2003 hypothecating and creating charge on the machine purchased under the said loan (hereinafter referred to as the said Machinery). The original Agreement of Hypothecation dated November 20, 2003 is marked as Exhibit P-10. e. Defendant Nos. 2 and 3 executed a Deed of Guarantee dated November 20, 2003 guaranteeing the repayment of the amount due under the business loan granted to Defendant No. 1. The Plaintiffs have stated that the said guarantee is a continuing guarantee and was to remain in force and effect till the account of the Defendant No. 1 is adjusted in full. The original Deed of Guarantee dated November 20, 2003 is marked as Exhibit P-11. f. The business loan was repayable by the Defendant No. 1 by monthly instalments of Rs. 2,700. The Defendant No. 1 failed to make payment. Therefore the Plaintiffs by its letter dated August 27, 2005 requested Defendant No. 1 to pay the arrears of instalment but Defendant No. 1 failed and neglected to do so. 4 s-190-09 g. Defendant No. 1 confirmed his liability under the business loan facility by executing Letter of Revival on October 25, 2005 in favour of the Plaintiffs confirming a balance of Rs. 46,482. The said letter is signed by Defendant No. 1 as the principal borrower and Defendant No. 2 and 3 as the guarantors. The original Letter of Revival dated October 25, 2005 is marked as Exhibit P-12. h. The Plaintiffs by its letter dated February 28, 2006 requested Defendant No. 1 to pay the outstanding amount under the said loan. Defendant No. 1 through several letters promised to pay the outstanding amount under the business loan but failed to make repayments. i. The Plaintiffs sent a letter dated December 29, 2006 through its advocate calling upon the Defendants to pay the outstanding amount of Rs. 50,610 as on December 12, 2006 to the Plaintiffs under the said loan. The original letter dated December 29, 2006 is marked as Exhibit P-13. j. The Defendants, through their advocate, replied on January 4, 2007 admitting their liability and offered a onetime settlement by paying Rs. 25,000 within 3 months or alternatively Defendant No. 1 showed his readiness to pay the outstandings by monthly instalment of Rs. 500. The original letter dated January 4, 2007 is marked as Exhibit P-14. k. The Plaintiffs through their advocate called upon the Defendants by letter dated June 9, 2007 to pay the outstanding of Rs. 56,061 as on May 31, 2007 to the Plaintiffs under the business loan. Defendant No. 2 did not accept the 5 s-190-09 said letter. A copy of the letter dated June 9, 2007 is marked as Exhibit P-15. l. Defendant No. 1 confirmed and admitted his liability of Rs. 65,127 as on February 29, 2008 under the business loan by executing the Balance and Security Confirmation letter dated February 28, 2008. The said letter dated February 29, 2008 is marked as Exhibit P-16. m. A sum of Rs. 73,385/- is due and payable by the Defendants to the Plaintiffs under the business loan inclusive of interest up to October 22, 2008 with further interest from October 23, 2008 till payment. The statement of accounts is marked as Exhibit P-17. 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-9 it is established that the Defendant No. 1 made an application for a business loan to the Plaintiffs which was sanctioned by the Plaintiffs for Rs. 75,000 on terms and conditions mentioned in Exhibit P-2 and necessary documents were executed in favour of the Plaintiffs with respect to the same. From Exhibit P-10 it is established that Defendant No. 1 hypothecated the said Machinery purchased in favour of the Plaintiffs in order to secure the amount under the said loan. From Exhibit P-11 it is established that the Defendant Nos. 2 and 3 guaranteed repayment of the said loan. From Exhibit P-12 it is established that Defendant No. 1 admitted his liability to the extent of Rs. 46,482 under the business loan payable to the Plaintiffs. From Exhibits P-13 to P-15 it is established that the Defendants were called upon to make payment of the outstanding amount due under the business loan to which the Defendants replied but failed and 6 s-190-09 neglected to make any payments to the Plaintiffs. It is also established that the Plaintiffs further called upon the Defendants to repay but the Defendants failed to do so. From Exhibit P-16 it is established that the Defendants confirmed an outstanding of Rs. 65,127. Exhibits P-17 to the plaint it is established that the Defendants are liable to pay a sum of Rs. 73,385/- to the Plaintiffs. 5. The Plaintiffs attempted to serve the writ of summons on the Defendants. As set out in the affidavit dated March 23, 2009, the packet containing the writ of summons transmitted to the Defendants No. 1 was returned back with the remark “Intimation Posted”. 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 the above circumstances, in my view, the reliefs sought by the Plaintiffs are required to be granted. In view thereof, I pass the following order:- (i) The Defendants are jointly and severally ordered and decreed to pay to the Plaintiffs a total sum of Rs. 73,385/- along with simple interest at 13.5 % per annum from the date of filing of the Suit till 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.]