kbp 1 1161-03.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1161 OF 2003 Canara Bank ..Plaintiff Vs. Jitendra B. Mistry and ors. ..Defendants ......... Ms.Shilpa Kamle i/b.M/s.Shukla and Shukla, for plaintiff. ......... CORAM : A.S.OKA, J.. DATE : 9 th December, 2009. JUDGMENT : 1] Heard learned counsel for the plaintiff. The suit is listed under the caption “undefended suits for ex-parte decree”. The plaintiffs Bank has filed present suit for a recovery of sum of Rs. 6,82,516/- together with interest thereon at the rate of 18% per cent per annum with compounded quarterly rests from the date of filing of suit till the payment or realisation. 3] According to the case of the plaintiff, sometime in the year 2000, the third defendant approached the plaintiff for grant of loan for purchasing a vehicle under the scheme known as “CANMOBILE”. It is stated that under the said scheme the third defendant was required to furnish the name, address and necessary application to the plaintiff bank of his customer who had approached him for purchase of new vehicle. The third defendant was required to submit kbp 2 1161-03.sxw various documents and proforma invoice as set out in paragraph 4 of the plaint. 4] The first defendant approached the third defendant for purchasing a new car of the value of Rs.7,10,310/-. An invoice was issued to show that the first defendant has booked a car with the third defendant and the first defendant made a deposit of Rs.2,10,310/- with the third defendant. An amount of Rs.5 lacs was disbursed by the plaintiff by way of loan. The third defendant issued a receipt in the sum of Rs.5 lacs in favour of the first defendant to show that he had received the payment on behalf of the first defendant from the plaintiff. The second defendant is stated to be the guarantor who guaranteed the repayment of amount by the first defendant. A reliance is placed in the plaint on various documents executed such as deed of hypothecation, deed of guarantee etc. It is stated that the amount was not repaid by the defendants, and therefore, the present suit was required to be filed. 5] The averments made in the plaint have not been controverted by the defendants. The original documents have been filed on record along with an affidavit of one Mr.Prakash, Senior Manager of the plaintiff bank. The averments made in the plaint and the documents establish the case of the plaintiff as regards grant of loan of Rs.5 lacs for purchasing a motor car. The hypothecation agreement produced on record proves the case of hypothecation in favour of the plaintiff. The averments made in the plaint show that the second defendant guaranteed repay the loan amount. The extract of loan account duly certified kbp 3 1161-03.sxw under the Bankers’ Books Evidence Act, 1891 is also produced and proved. 6] After having perused the plaint and the aforesaid documents, I find that the plaintiff has established a case that the first defendant had not repaid the amount due at foot of the loan account. Hence, a case is made out for passing the decree in favour of the plaintiff as against the first and second defendants i.e.the borrower and guarantor respectively. 7] The plaintiff has prayed for interest at the rate of 18% per annum. The plaintiff is entitled to interest at the rate of 12% per annum on the principal amount. Hence, I pass the following order. (a) The suit stands decreed as against the first and second defendants in terms of prayer clauses (a) and (f) with the modification that the further interest at the rate of 12% per annum will be payable by the said defendants to the plaintiff on the amount of Rs.5,31,509/- from the date of institution of the suit till the realisation or payment. ( A.S.OKA, J. )