-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Suit No. 2270 of 2000 Bank of India ..Plaintiffs vs. More Travels and ors. ..Defendants Mr.D.A.Das for plaintiff. none for defendants. CORAM: S.J.KATHAWALLA J. CORAM: S.J.KATHAWALLA J. CORAM: S.J.KATHAWALLA J. 12th January, 2009 12th January, 2009 12th January, 2009 P.C. P.C. P.C. 1. This suit is listed under the caption "undefended suits" for "Ex-parte Decree". The affidavit proving service of writ of summons upon defendant nos. 1 to 4 dated 8th June,2001 is already on record. The defendants have neither appeared nor filed their written statement in the matter. 2. The suit is filed by the plaintiffs Bank against the defendants. Defendant no.1 is a partnership firm of which defendant nos. 2 and 3 are the partners. Defendant nos.2 and 3 are sued in their individual capacity and also in the capacity as partners of defendant no.1. Defendant no.4 is the guarantor having guaranteed repayment of the amount payable by -2- defendant nos. 2 and 3 on behalf of defendant no.1 to the plaintiffs. The plaintiffs have filed this suit seeking an order and decree against the defendants to jointly and severally pay to the plaintiffs a sum of Rs.2,52,225.10 as on 29th May, 2000 with further interest thereon from 30th May, 2000 at the rate of 12% p.a. with quarterly rest on Rs.2,52,225.10 as per particulars of claim being Exh.K to the plaint. The plaintiffs are seeking relief only in respect of prayer clause (a) of the plaint. 3. The plaintiffs have tendered the affidavit of evidence of one Vijay Kumar Nardia, Senior Manager (Credit) of the plaintiffs which is taken on record and marked ‘X’ for identification. The plaintiffs have also filed the original documents in support of their claim in the suit. 4. It is stated in the plaint and in the affidavit of evidence that on or about 13th March, 1996 at the request of defendant nos. 2 and 3 the plaintiffs have granted a loan facility to defendant no.1 under the Prime Minister Rojgar Yojana for a sum of Rs.1,89,800/- for purchase of Maruti Omni Van. -3- 5. It is stated in the plaint and in the affidavit of evidence that in order to secure the due repayment of the dues of the plaintiffs, defendant nos. 2 and 3 in their personal capacity and also as partners of defendant no.1 and defendant no. 4 as guarantor executed in favour of and delivered to the plaintiffs following documents all dated 13th March, 1996,. i) An agreement of loan and hypothecation dated 13th March,1996 executed by and between the plaintiffs and defendant no.2; ii) Declaration that the vehicle be driven by defendant nos.1 and 3 only; iii) Instalment letter dated 13th March, 1996 executed by defendants iv) Letter of authority executed by defendant nos.1 to 3 to carry out inspection of the vehicle. v) Undertaking regarding change in address etc. vi) Letter of non borrowing vii) Letter having no relation with any Bank officer. viii) Letter of singular guarantee dated 13th March, 1996 executed by defendant no.4 assuring repayment of the sum of Rs.1,89,800/- together with interest at the rate of 14.55 p.a. with quarterly rest ix) Letter of acknowledgment of debt/security dated 22nd January, 1999 -4- 6. It is stated in the plaint and in the evidence that since no amount was forthcoming from the defendants the plaintiffs on 30th December,1999 through their Advocates addressed a letter of demand to the defendants. The plaintiffs state that there is now due and payable by the defendants to the plaintiffs an amount of Rs.2,52,225.10 as on 29th May, 2000 till payment and/or realisation as per the particulars of claim Exh.K to the plaint. 7. I have perused the averments made in the plaint and the documents tendered alongwith the affidavit of evidence of the plaintiffs. The documents at Exh-P-1 to P-7 shows that the plaintiffs have advanced a loan of Rs.1,89,800/- to defendant nos. 1 to 3 for purchase of Maruti Omni Van. The document at Exh-P-8 shows that defendant no.4 has guaranteed payment to the plaintiffs in respect of the said loan. The document at Exh-P-9 shows that the defendants have acknowledged their debts/securities. The document at Exh-P-10 shows that the plaintiffs have issued a demand notice to the defendants. The document at Exh-P-11 shows that an amount of rs.2,52,225.10 is due and payable by the defendants to the plaintiffs on 29th May 2000. -5- 8. There is no contest by the defendants and what is stated in the affidavit of evidence has gone unchallenged. There is no reason why the case made out by the plaintiffs should not be accepted. By prayer clause (a), the plaintiffs have prayed that the defendants be jointly and severally ordered and decreed to pay to the plaintiffs a sum of Rs.2,52,225.10 along with interest at the rate of 12% p.a. with quarterly rests on Rs.2,52,225.10 from the date of filing of the suit till realisation. 9. The suit is decreed in terms of prayer clause (a), except that the plaintiffs shall be entitled to receive from the defendants simple interest at the rate of 10% on the amount of Rs.2,52,225.10 from the date of filing of the suit till payment and/or realisation, and not at the rate of 12% p.a. with quarterly rests as prayed in prayer clause (a). 10. Suit stands disposed of. Certified copy is expedited. (S.J.KATHAWALLA J.) (S.J.KATHAWALLA J.) (S.J.KATHAWALLA J.)