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IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION) THANE
AT THANE
REGULAR CIVIL SUIT NO. _________ OF 2020
Yes Bank, )
a Body Corporate constituted under the )
Banking Companies (Acquisition and Transfer )
of Undertakings ) Act, 1980 having its Head )
Office at Yes bank Tower, Elphinstone , )
Mumbai- 400 013 and having its Thane (W) )
Branch at Shop Nos. 2 & 5, Mangal Murti )
Co-op. Housing Society Ltd., Ram Maruti Road, )
Naupada, Thane (West), through its Assistant )
Manager Mr. ABC ) …. Plaintiff.
Versus
1. M/s. M. S. Telecom Systems & Services, )
a sole proprietary firm carrying on the business )
at Kapurbawdi, Thane (West) – 400607. )
2. Mr. Anand Maruti Patil, )
of Indian Inhabitant residing at Galaxy Packers, )
Ghatla Village Road, Near Amar Cinema, )
Jani Industrial Estate, Chembur, )
Mumbai – 400071. ) ….. Defendants.
SUIT FOR RECOVERY OF AN
AMOUNT OF RS.4,97,877/-
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THE PLAINTIFF ABOVENAMED STATE AS UNDER :-
1. The Plaintiff is a Body Corporate constituted under the Banking
Companies (Acquisition and Transfer of Undertakings ) Act, 1970
having its Head Office at Yes Bank Tower, Mumbai and its Thane
(West) Branch at the address mentioned in the cause title. The
Plaintiff inter-alia carries on business as Bankers.
2. The Defendant No. 1 is a sole proprietary firm of which the
Defendant No. 2 is a sole proprietor. The Defendants are the
constituents of the Plaintiff having enjoyed the credit facility with
the Plaintiff as more particularly set out hereinbelow.
3. The Plaintiff state that, pursuant to the Application made by the
Defendants, the Plaintiff on or about 11th December, 2015 vide their
sanction letter granted/ sanctioned Term Loan of Rs.8.00 lacs under
Pradhan Mantri Mudra Yojana – Shishu Scheme in the name of the
Defendant No.1 for the purpose of their business on terms and
conditions mentioned in the said sanction letter. The Defendants duly
accepted the terms and conditions of the said sanction letter by
endorsing their signature on the office copy of the said sanction
letter. Hereto annexed and marked Exhibit “A” is a copy of the
said Sanction Letter. The Plaintiff hereby crave leave to refer to and
rely upon the said Loan Application when produced.
4. The Plaintiff state that, in consideration of the Plaintiff sanctioning/
granting the said Term Loan of Rs.8.00 lacs to the Defendants and
to secure the amount due thereunder, the Defendants executed the
Composite Agreement dated 11th December, 2015 in favour of the
Plaintiff whereby the Defendants, apart from other things, agreed
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and undertook to repay the amount of the said Term Loan in 60
equated monthly installments commencing after gestation period of six
months i.e. commencing six months after date of disbursement, apart
from and in addition to the interest, cost charges etc. in the manner
more particularly sent out therein and also hypothecated in favour of
the Plaintiff the goods, equipments, tools, machineries and stocks and
book-debts etc. (hereinafter referred to as “the hypothecated
properties/securities”) as more particularly set out therein. Hereto
annexed and marked Exhibit “B” is a copy of the said Composite
Agreement dated 11th December, 2015.
5. The Plaintiff state that, as per the business requirements and upon
the request made by the Defendants, the Plaintiff made partial
disbursement of an amount of Rs.5.00 Lacs out of the said sanctioned
Term Loan of Rs.8.00 Lacs. That the balance amount of the sanctioned
Term Loan was to be disbursed upon the instruction from the Defendants.
However, the Plaintiff never received any direction from the Defendants
with regards to the disbursement of the balance amount of the sanctioned
Term Loan (i.e. Rs.3.00 Lacs). The Plaintiff further states that, the Plaintiff
partially disbursed the said Term Loan on 22.12.2015 by transferring
the said amount of Rs.5.00 lacs to the Saving/Current Account No.
057111100002582 of the Defendant with the Plaintiff’s branch. The
Plaintiff thus upon the instruction of the Defendants, the Plaintiff has duly
disbursed the partial amount of the said Term Loan. The Defendants
duly availed of the said Loan with the Plaintiff by utilising the said
loan amount so transferred to their account as per their business
requirements.
6. The Plaintiff state that in their ordinary and usual course of Banking
business, the Plaintiff has maintained a separate Account No.
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057130100009664 in the name of the Defendant No.1 in respect of
the said Term Loan. In the said account the Plaintiff has duly
debited the amount used and utilized by the Defendants together with
the accrued interest, costs, charges, expenses etc. The Plaintiff has
also given due credit for the amounts deposited by the Defendants in
the said account.
7. The Plaintiff state that, the Defendants thus duly availed of the said
Loan with the Plaintiff. However, the Defendants became highly
irregular in operating the account in respect of the said Term Loan.
The operation in the said account was very poor and unsatisfactory.
The Defendants also failed and neglected to pay the monthly
installments in respect of the said Term Loan in accordance with the
terms of sanction. The installments for several months have remain
unpaid and overdue by the Defendants. The Defendants also failed to
serve the monthly interest in respect of the said Loan and the
interest for several months remained unpaid and overdue by the
Defendants. The Plaintiff by their various letters time and again
called upon and requested the Defendants to regularize the said loan
account and to pay the overdue installments as well as the overdue
interest. However, the Defendants failed and neglected to comply
with the said requests made by the Plaintiff. For the reasons
mentioned hereinabove, the account in respect of the said Term Loan
became out of order and the same was came to be classified as
NPA with effect from 21.08.2017 as per the R.B.I. Guidelines. The
Defendants thus committed various irregularities and breaches of the
terms and conditions of sanction as well as of the security documents
executed by them in favor of the Plaintiff. Hereto annexed and
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marked Exhibit “C” is a copy of the Statements of Account in
respect of the said Term Loan.
8. The Plaintiff by their various letters/notices some of such
letters/notices being dated 12.10.2017, 04.12.2017, 06.01.2018,
01.02.2018, 09.03.2018 and 04.04.2018 time and again requested the
Defendants to pay the overdue interest and installments and to
regularize the said loan account. However, inspite of the said
repeated requests and demands made by the Plaintiff, the Defendants
failed to pay the regularize the said loan account. Hereto annexed
and marked Exhibits “D” and “D-1” to “D-5” are the copies of the
said letters/notices being dated 12.10.2017, 04.12.2017, 06.01.2018,01.
02.2018, 09.03.2018 and 04.04.2018 sent by the Plaintiff to the
Defendants.
9. The Plaintiff ultimately vide their recall notice dated 20th December,
2018 recalled the entire amount due under the said Term Loan and
called upon the Defendants to repay the entire loan amount and
interest within 15 days. However, the Defendants failed to comply with
the said recall notice. Hereto annexed and marked Exhibit “E” is a
copy of the said recall notice dated 20th December, 2018.
10. In circumstance, the Plaintiff state that there is now due and payable
jointly and severally by the Defendants to the Plaintiff a sum of Rs.
4,97,877/- (Rupees Four Lakhs Ninety Seven Thousand Eight Hundred
And Seventy Seven only) under the said Term Loan as per the
Particulars of Claim being Exhibit “F” annexed hereto with further
interest thereon at the rate of 12% p.a. plus 2% penal interest with
monthly rests from 22nd January, 2019 till payment and/or realization.
11. The Plaintiff submit that, the Defendants are bound and liable to pay
to the Plaintiff the aforesaid amounts and interest as prayed herein.
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The Plaintiff, therefore, submit that the Defendants be ordered and
decreed to pay to the Plaintiff the amount, interest and costs as
prayed herein and the present suit be accordingly decreed as prayed.
12. The Plaintiff submit that the aforesaid amount with interest is duly
secured by a valid and subsisting hypothecation of goods, equipments,
tools machineries and Book Debts described in Composite Agreement
being the Exhibit “B” annexed hereto. The Plaintiff further submit that
the said hypothecated securities be ordered to be sold and/or realized
and/or recovered by and under the orders and directions of this
Hon’ble Court and the net sale proceeds or recoveries thereof be
ordered to be paid to the Plaintiff towards their claim herein.
13. The Plaintiff strongly apprehend that in order to defeat the rights of
the Plaintiff and to deprive the Plaintiff of their valuable securities,
the Defendants may dispose off, transfer, create encumbrances and/ or
create a third party rights in or over the said hypothecated securities.
The Plaintiff, therefore, submit that it is just, proper and absolutely
necessary that pending the hearing and final disposal of the suit, any
other person be appointed as a Receiver in respect of the
hypothecated securities described in Exhibit “B” annexed hereto with
all the powers under Order XL Rule 1 of the Code of Civil
Procedure, 1908, including the power to sell the said hypothecated
securities and to pay the net sale proceeds/ recoveries thereof to the
Plaintiff towards their claim in the suit.
14. The Plaintiff submit that it is also just, proper and absolutely
necessary that pending the hearing and final disposal of the suit, the
Defendants, their servants, agents and /or any other person or persons
claiming through or under them be restrained by an order of
injunction of this Hon’ble Court from parting with possession,
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selling, disposing off, transferring, encumbering, the said hypothecated
securities described in Exhibit “B” annexed hereto and/ or creating
any third party rights or interest of whatsoever nature in respect
thereof.
15. The Plaintiff submit that a grave and irreparable harm, loss, injury
and prejudice will cause to the Plaintiff if the aforesaid reliefs are not
granted whereas no harm, loss, injury and / or prejudice will cause to
the Defendants if the aforesaid reliefs are granted in favour of the
Plaintiff. The Plaintiff have made out a strong and prima facie case
for grant of ad-interim and interim reliefs. The Plaintiff further
submit that the balance of convenience, law and equity is in favour
of the Plaintiff and against the Defendants. The Plaintiff, therefore,
respectfully submit that the ad-interim and interim reliefs as prayed
herein be granted in favour of the Plaintiff.
16. The Plaintiff submit that the said Loan was granted and enjoyed at
the Plaintiff’s Thane Branch, Thane. The security documents were
executed at the Plaintiff’s Thane Branch, Thane. The amounts are
repayable at the Plaintiff’s Thane Branch, Thane. The part payments
were made at the Plaintiff’s Thane Branch, Thane. The account in
respect of the said Loan has been maintained at the Plaintiff’s Thane
Branch, Thane. The entire cause of action has thus arisen at Thane.
The Plaintiff, submit that this Hon’ble Court has, therefore,
jurisdiction to entertain, try and dispose of the present suit.
17. The Plaintiff submit that the amounts due under the said credit
facility granted under PMMY Scheme is covered under insurance of
CGTMSE . The Plaintiff further submit that they are in the process
of lodging their claim with the CGTMSE for payment of the
defaulted amount covered under the insurance of the CGTMSE. The
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Plaintiff, however, submit that as per the terms and conditions of the
insurance of CGTMSE notwithstanding the bank receives claim from
the CGTMSE, the Plaintiff bank is duty bound to make all their
efforts and to take such steps and/or actions as are laid down under
the law of land for recovery of the defaulted amount and to remit
back the recoveries to the CGTMSE .
18. That one, Mr. ABC, the Asst. Manager and duly Authorised
Representative of the Plaintiff who is duly conversant with the facts
of the case and able to depose to the same has signed and verified
the plaint.
19. The Plaintiff value their claim in the suit at Rs. 4,97,877/- for the
purpose of court fees and jurisdiction and pay the court fees of
Rs.13,630/- accordingly.
20. The Plaintiff submit that as aforesaid, the said Term Loan was
repayable in 60 monthly installments commencing after gestation
period of six months. The Plaintiff further submits that the gestation
period of six months was to be commenced from the date of
disbursement. The loan was disbursed on 22.12.2015. The repayment
had thus commenced from six months after 22.12.2015. The first
monthly installment was to be paid by the Defendants on 23rd June,
2016 and last of such installment was/is payable on 23rd June, 2021.
Therefore, the cause of action is continuing and the present suit is
within time. Without prejudice to the foregoing submissions, the
Plaintiff submit that as shown in the statement of account, apart
from amount paid by way of transfer of funds from saving account,
the Defendants have made various part payments towards the
repayment of the amount due under the said loan and last of such
payment was made by the Defendants on 27th July, 2017 and
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therefore, the present suit is within time. Without prejudice to the
foregoing submissions, the Plaintiff submit that the entire loan
amount was recalled by the Plaintiff vide their recall notice dated
20th December, 2018. Therefore, the cause of action arose after 20th
December, 2018. The Plaintiff, therefore, submits that for the reasons
set out hereinabove the claim of the Plaintiff is not barred by the
Law of Limitation and the present suit is being filed within time.
21. The Plaintiff will rely upon the documents a list whereof is annexed
hereto.
22. The Plaintiff has not received any caveat from the Defendants in the
above matter.
23. The Plaintiff has not filed any other suit, application or any other
legal proceeding in any court of law for recovery of the amounts
claimed herein except the present suit.
24. The Plaintiff, therefore, pray ;
(a) that the Defendants be ordered and decreed to pay to
the Plaintiff a sum of Rs. 4,97,877/- (Rupees Four
Lakhs Ninety Seven Thousand Eight Hundred And
Seventy Seven only) due under the said Term Loan as
per the particulars of claim being Exhibit “F” annexed
hereto with further interest thereon at the rate of 12 %
p.a. with monthly rests plus 2% penal interest from
22nd January, 2019 till payment and/or realization.
(b) that it be declared that the amounts mentioned in
prayer clause (a) is duly secured by a valid and
subsisting hypothecation of goods, equipments,
machineries, Book-Debts etc. described in Exhibit “B”
annexed hereto.
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(c) that the said hypothecated securities be ordered to be
sold and/or realized by and under the orders and
directions of this Hon’ble Court and the net sale
proceeds / realization thereof be ordered to be paid to
the Plaintiff towards their claim herein.
(d) that pending the hearing and final disposal of the suit,
a proper and fit person be appointed as a Receiver in
respect of the said hypothecated securities in Exhibit
“B” hereto with all powers under Order XL Rule 1 of
the Code of Civil Procedure, 1908, including the power
to sell the said hypothecated securities and to recover
and to pay the net sale proceeds/ recoveries and/or
realizations thereof to the Plaintiff towards their claim
in the suit.
(e) that pending the hearing and final disposal of the suit,
the Defendants, their servants, agents and /or any other
person or persons claiming through or under them be
restrained by an order of injunction of this Hon’ble
Court from parting with possession, selling, disposing
off, transferring, encumbering the said hypothecated
securities described in Exhibit “B” hereto and/ or
creating any third party rights or interest of whatsoever
nature in respect thereof.
(f) that ad-interim and interim reliefs in terms of payer
clause (d) and (e) above be granted.
(g) that the Defendants be ordered and decreed to pay to
the Plaintiff the cost of the suit.
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(h) that such further and other reliefs as this Hon’ble
Court may deem fit and proper be granted in favour
of the Plaintiff and against the Defendants.
M/s. S. S. Malbari & Co.
Proprietor
Advocate for the Plaintiff. Plaintiff.
VERIFICATION
I, Mr. ABC , of Indian Inhabitant, the Asst. Manager and duly
Authorised Representative of the Plaintiff abovenamed, declare that what is
stated in the paragraphs nos. 1 to 10, 18 & 21 are true to my own knowledge
based on the records of the Plaintiff and what is stated in the remaining
paragraphs nos. 11 to 17, 19, 20, 22 & 23 is stated on information and beliefs,
and I believe the same to be true.
Declared at Thane )
This___ day of April, 2020. ) Plaintiff.
M/s. S. S. Malbari & Co.
Proprietor
Advocate for the Plaintiff
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IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION) THANE
AT THANE
REGULAR CIVIL SUIT NO. _________ OF 2020
Yes Bank …. Plaintiff.
Versus
M/s. M. S. Telecom Systems & Services ….. Defendants.
& Anr.
Affidavit in support of the Plaint
I, Mr. ABC, of Indian Inhabitant, the Asst. Manager and duly
Authorised Representative of the Plaintiff Yes Bank, Thane Branch
abovenamed do hereby solemnly affirm and say as under ;
1. I say that I am conversant with the facts of the above case and able
to depose the same.
2. I say that the Plaintiff has filed the present suit for recovery of an
aggregate amount of Rs. 4,97,877/- (Rupees Four Lakhs Ninety Seven
Thousand Eight Hundred And Seventy Seven only)and for enforcement
of the hypothecated securities as more particularly set out in the said
suit. I hereby repeat, reiterate and confirm what is stated in the suit
and reproduce the same herein verbatim so as to form part of this
affidavit on my part.
3. I say that the for the reasons set out in the said Plaint, I pray that
the reliefs as prayed in the above suit be granted and the present
suit filed by the Plaintiff be decreed as prayed and a decree be
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accordingly passed in favour of the Plaintiff and against the
Defendants.
Solemnly affirmed at Thane )
Dated this ______day of April, 2020 ) Before Me,
For M/s. S. S. Malbari & Co.
Proprietor
Advocate for the Plaintiff.
VERIFICATION
I, Mr. ABC, of Indian Inhabitant, the Asst. Manager and the
Constituted Attorney of the Plaintiff abovenamed, solemnly affirm that
what is stated in the foregoing affidavit is true and correct and I believe
the same to be true.
Solemnly declared at Mumbai )
Dated this _____ day of April, 2020. ) Before me.
M/s. S. S. Malbari & Co.
Proprietor
Advocate for the Plaintiff.
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I/we am/are not a member /members of The
Welfare Fund therefore stamp of Rs.2 is/are
not affixed herewith.
VAKALATNAMA
IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION) THANE
AT THANE
REGULAR CIVIL SUIT NO. _________ OF 2020
Yes Bank, )
a Body Corporate constituted under the )
Banking Companies (Acquisition and Transfer )
of Undertakings ) Act, 1980 having its Head )
Office at Yes bank Tower, Elphinstone , )
Mumbai- 400 013 and having its Thane (W) )
Branch at Shop Nos. 2 & 5, Mangal Murti )
Co-op. Housing Society Ltd., Ram Maruti Road, )
Naupada, Thane (West), through its Assistant )
Manager Mr. ABC. ) …. Plaintiff.
Versus
1. M/s. M. S. Telecom Systems & Services, )
a sole proprietary firm carrying on the business )
at Kapurbawdi, Thane (West) – 400607. )
2. Mr. Anand Maruti Patil, )
of Indian Inhabitant residing at Galaxy Packers, )
Ghatla Village Road, Near Amar Cinema, )
Jani Industrial Estate, Chembur, )
15
Mumbai – 400071. ) …..Defendants.
We, Yes Bank, the Plaintiff abovenamed in the above matter do
hereby appoint and nominate M/s. S. S. Malbari & Co. to Appear and Act for
me/us as my/our Advocate/s in the above matter.
In witness whereof we have set and subscribed our hands to this
writing at Thane this ____day of April, 2020.
Witness:
ACCEPTED :
For M/s. S. S. Malbari & Co.
Proprietor
Advocates for the Plaintiff Plaintiff
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IN THE COURT OF CIVIL JUDGE (J.D.), THANE
AT THANE
REGULAR CIVIL SUIT NO. _________ OF 2020
Yes Bank …. Plaintiff.
Versus
M/s. M. S. Telecom Systems
& Services and Anr. ….. Defendants.
P L A I N T
--------------------------------------------------------------
Dated this ____ day of April, 2020.
M/s. S. S. Malbari & Co.
Advocates for the Plaintiff,
