:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SUMMARY SUMMARY SUMMARY SUIT NO. 4 OF SUIT NO. 4 OF SUIT NO. 4 OF 2003 2003 2003 Corporation Bank. ... Plaintiff. V/s. Smt. Meena Deepak Sonde & Anr. ... Defendants. Mr. U.S. Shetty for the Plaintiff. None for the Defendants. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 20TH 20TH 20TH JANUARY 2009. JANUARY 2009. JANUARY 2009. P.C. P.C. P.C. : : : . The Plaintiff has filed the Suit as a Summary Suit. The Suit is filed against the Borrower and the Guarantor. However, the Guarantor - Defendant No.2 could not be served with a writ of summons. The Writ of Summons is issued in the year 2003 and therefore, Mr. Shetty, learned Advocate appearing for the Plaintiff states that the Suit be dismissed against this Defendant. 2. In so far as the Borrower - Defendant No.1 is concerned, on a written contract loan facility was extended to the First Defendant. The facility was to purchase a vehicle and therefore, loan was sanctioned. He executed an agreement for the Term Loan. After availing of a loan, the Defendant paid a sum of Rs.3,15,867.50 and thereafter, committed defaults. The Plaintiff took possession of the vehicle in terms of the deed of :2: hypothecation and sold the same. They realised a sum of Rs.1,95,000/- and the sum is credited to the said loan amount after debiting the charges incurred towards the auction, advertisement, etc. 3. However, there was still a shortfall and therefore, an Advocate Notice dated 1st August 2002 was addressed which was duly received. The Defendant No.1 has paid a sum of Rs.12,704.50 ps. on 8th November 2002. It is thereafter that the vehicle was sold. After the sale proceed were credited, the outstanding balance is Rs.1,04,955. This amount has been claimed together with interest. 4. The First Defendant has been duly served with the Writ of Summons. Affidavit proving service on Defendant No.1 has been duly filed. 5. Since there was a doubt as to the maintainability of the Suit as a Summary Suit in the light of the hypothecation of the vehicle as security towards the loan, the Suit was not pursued in terms of Order XXXVII. Subsequently, it came to the notice of the Court that none was appearing for the Plaintiff - Bank. The Suit could have been dismissed but the Court issued notice to the Bank. More so, as its Advocate had expired. After receipt of the Court’s Notice, the matter was placed before me for ex-parte decree. :3: 6. The Plaintiffs have filed an affidavit of their Senior Manager, working at the concerned Branch, who has confirmed the averments and statements in the plaint. He has confirmed the contents of the documents. He states that they are true and correct. He states that the Statements of Account is based upon the documents and records maintained by the Bank in the course of its banking business. The entries therein are duly proved by him. 7. The original documents are filed alongwith the list. Each of the documents have been referred to in the deposition of the Plaintiffs and their contents are duly proved so also the signatures thereon. 8. The Writ of Summons evidences that the First Defendant has been duly served. No points of defence/written statement have been filed on behalf of the Defendant/Borrower. 9. The First Defendant has failed to avail offthe opportunity to cross examine the Plaintiff’s witness Mr. Dilip Kumar, who is present in Court today. 10. In the aforesaid circumstances and when I am satisfied that the Suit claim is maintainable in this Court so also not barred by limitation, there is no :4: impediment in decreeing the Suit as prayed. 11. Hence, the affidavit in evidence is taken on record and marked ‘X-1’. The affidavit proving service is marked ‘X-2’. The Original documents in a compilation are marked ‘X-3’, collectively. The Suit is decreed as prayed. Advocates costs to be computed as per rules. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)