BANK OF INDIA vs M/S KALYAN EXIM on 10 January 2024

J U D G M E N T

1. The Original Application has been filed by the Applicant against the Defendants for recovery of Rs.24,41,93,982.71 (Rupees Twenty Four Crore Forty One Lakh Ninety Three Thousand Nine Hundred Eighty Two and paise Seventy One Only) along with pendentelite and future interest at the rate of 15.7 % p.a. in credit facility account with monthly rests from the date of filing of the present OA till its realization.

2. Facts as succinctly set out in the present OA are that Defendant No.1 is a partnership firm and Defendant No. 2 & 3 are the partners of the

Defendant No. 1 firm. Defendant No. 4 is a guarantor of the credit facility sanctioned to the Defendant No. 1. Defendant No. 2 & 3 are personal guarantors to the facility availed by Defendant No. 1.

3. It is stated that Defendant No. 1 through Defendant 2 & 3 approached for credit facilities for working capital. Pursuant to the said request, Applicant vide sanction letter dated 31.08.2007 sanctioned the limits of Rs. 70 Lakh i.e. for EPC limits and for FBP limits, both limits shall be utilized to the extent of maximum of Rs.70 Lakh to Defendant No.

1.

4. In consideration of sanction of aforesaid facility, Defendant No. 1 along with Defendant No. 2 & 3 has executed loaning and security documents on 12.09.2007: i. Demand Promissory Note ii. Demand Promissory Note iii. Multipurpose Documents iv. Cheques, Bills, Hundies and other instruments with or without share certificates or other documents attached, lodged with you for collection and/ or discount and/ or purchase from time to time. v. Trust Receipt vi. Undertaking

5. In order to secure the aforesaid facility, Defendant No. 1 to 3 executed the agreement of Hypothecation of Plant & Machinery, Stocks and Book Debts dated 12.09.2007, by executing the said agreement, Defendant No. 1 to 3 hypothecated the Raw materials of Gold, Gold Jewellery, Diamond, gems etc. and finished products of Gold, Gold Jewellery, Diamond, Diamond Jewellery, Gems etc.

6. It is also stated that Defendant No. 2’s father Shri. Chimanlal Amruthlal Sanghani and brother Shri. Kirit Chimanlal Sanghani executed the deed of guarantee dated 12.09.2007 in favour of the Applicant Bank. Further, the Defendants have pledged the TDR of Rs. 50 Lakh with the Applicant Bank.

7. It is further stated that Defendant No. 1 to 3 approached the Applicant Bank with a request to revise the credit facility sanctioned under FBP from existing Rs. 70 Lakh to Rs. 1 Crore. Pursuant to the said request, Applicant vide sanction letter dated 05.01.2009 revised the credit facility under EPC Rs. 70 Lakh and enhanced under credit facility under FBP – DP/ DA- 90 days to Rs. 1 Crore.

8. In consideration of sanction of the aforesaid facility, Defendant No. 1 to 3 executed following loaning and security documents on 12.01.2009: i. Demand Promissory Note ii. Multipurpose document iii. Letter of Declaration iv. Letter of Appropriation v. Trust receipt

9. In order to secure the aforesaid facility, Defendant No. 1 to 3 executed the first supplemental deed of hypothecation dated 12.01.2009 and extended the hypothecation created on 12.09.2007. The father of Defendant No. 2 namely Shri. Chimanlal Amruthlal Sanghani and brother Shri. Kirit Chimanlal Sanghani executed deed of guarantee dated 12.01.2009 in favour of the Applicant Bank. Defendants have also pledged the TDR of Rs. 15 Lakh with the Applicant Bank.

10. It is further stated that Defendants again approached the Applicant Bank with a request to enhance the present EPC facility from existing of Rs. 70 Lakh to Rs. 1 Crore and enhancement in FBP facility from existing Rs. 1 Crore to Rs. 4 Crore. The Defendants further requested Applicant to grant the Non-fund based facility such as standby letter of credit of Rs. 1 Crore and I/F Guarantee of Rs. 10 Lakh. The total fund based facility and non-fund based facility shall be operated maximum for Rs. 4 Crore. Defendant No. 2 agreed to equitably mortgage the office premises i.e. Flat bearing No. 2 in Building ‘Mayur’, ‘A’ Wing, 1st Floor, Badamwadi CHS Ltd., 377, V.P. Road, Mumbai- 400 004, and further additional term deposit receipt of Rs. 85 Lakh with the Applicant bank in addition to existing TSR of Rs. 65 Lakh.

11. In consideration of sanction of the aforesaid facility under FBP which was extended from existing Rs. 1 Crore to Rs. 4 Crore, Defendant No. 1 to 3 executed the following loaning and security documents on 06.02.2010: i. Demand Promissory Note ii. Multipurpose Documents iii. Trust Receipt iv. Acknowledgement of Debts in account operated for EPC bearing No. 003382610000009.

12. In consideration of sanction of the aforesaid facility under LC for Rs. 1 Crore, Defendant No. 1 to 3 executed the following loaning and security documents on 06.02.2010: i. Demand Promissory Note ii. Multipurpose Documents iii. Omnibus Indemnity

13. In consideration of sanction of the aforesaid facility under BG for Rs. 10 Lakh, Defendant No. 1 to 3 executed the following loaning and security documents on 06.02.2010: i. General Counter Guarantee & Indemnity Covering Several Guarantees within the sanction guarantee limits of Rs. 10 Lakh. ii. General Counter Guarantee & Indemnity Covering Several Guarantees within the sanctioned guarantee limit of Rs. 1 Crore.

14. In order to secure the aforesaid facility, Defendant No. 1 to 3 executed the second supplemental deed of hypothecation dated 06.02.2010.

15. It is also stated that Shri. Chimanlal Amruthlal Sanghani and Shri. Kirit Chimanlal Sanghani executed the deed of guarantee in favour of the Applicant Bank guaranteeing to repay the additional facility of Rs. 3 Crore.

16. Furter, Defendant No. 2 approached the Applicant Bank on 08.02.2010 with original title deeds and created equitable mortgage with the Applicant Bank of property being: Flat No. 2 on 1st Floor, in building ‘Mayur’ of Badamwadi CHS Ltd. – 377, V.P. Road, Mumbai-

400 004, admeasuring 79.80 – sq. mtrs. (built up) constructed on plot of land bearing C.S. No. 1620 of Girgaum Division, Mumbai City.

17. It is further stated that Defendant No. 1 to 3 again approached the Applicant in the month of March 2011 with a request to revise the credit limits sanctioned to Defendant No. 1. Defendant No. 1 to 3 requested Applicant Bank to cancel the standby LC Limits which was sanctioned under sanction letter dated 05.02.2010 as it was not utilized. Defendant No. 1 to 3 further requested to release the guarantee of Mr. Chimanlal Amrutlal Sanghani, a senior citizen and guarantee of Mr. Kirti Sanghani who was running his own business. The Applicant Bank stated that looking to the operation of the account to the satisfaction of the Applicant Bank they agreed to the request of Defendant No. 1 to 3 and released the guarantee of Mr. Chimanlal Amrutlal Sanghani and Mr. Kirit Chimanlal Singhani.

18. It is also stated that Defendant No. 1 to 3 further requested to revise the credit facility sanctioned to Defendant No.1 to 3 i.e. EPC facility from existing Rs. 1 Crore to Rs. 2 Crore and FBP facility from existing Rs. 4 Crore to Rs. 7 Crore maximum use of facility Rs. 7 Crore and to sanction the Bank Guarantee of Rs. 10 Lakh to Rs. 20 Lakh maximum facility to be used for Rs. 7 Crore. The Applicant Bank stated that pursuant to the said request the Applicant sanctioned the credit facility as aforesaid vide their sanction letter dated 26.03.2011.

19. In consideration of the sanction of the aforesaid facility, Defendant No. 1 to 3 executed the following loaning and security documents for facility under EPC which was extended from existing Rs. 1 Crore to Rs. 2 Crore in favour of the Applicant Bank on 28.04.2011: i. Demand Promissory Note ii. Multipurpose Documents iii. Trust Receipt

20. In consideration of sanction of the aforesaid facility, Defendant No. 1 to 3 executed the following loaning and security documents for facility under FBP which was extended from existing Rs. 4 Crore to Rs. 7 Crore in favour of the Applicant on 28.04.2011: i. Demand Promissory Note ii. Multipurpose Documents iii. Omnibus Indemnity iv. Bills i.e. cheques, Bils, Hindis and other Instruments with or without Share Certificate or other documents attached, lodged with you for collected and/ ore discount and/ or purchase form limits v. Renewal documents in account of FBP

21. It is also stated that Defendant No. 1 to 3 executed the third supplemental deed of hypothecation dated 28.04.2011 for the facilities sanction under sanction letter dated 26.03.2011.

22. It is further stated that Defendant No. 2 visited Applicant Bank on 28.04.2011 and extended the mortgage on his flat no. 02, on 1st Floor of Mayur Building of Badamwadi CHS Ltd., 377 V. P. Road, Mumbai- 400 004.

23. It is further stated that Defendant No. 1 to 3 again approached the Applicant Bank in the month of July 2012 for enhancement of credit limits sanctioned to them. Pursuant to the said request, Applicant

enhanced the credit facility under EPC from 2 crore to 5 crore and credit facility under FBP from existing limit of Rs. 7 Crore to Rs. 12 Crore. The Applicant Bank stated that Defendant No. 1 to 3 further requested to enhance the Bank guarantee from existing Rs. 20 Lakh to Rs. 25 Lakh. The total limits to be used of Rs. 12 Crore.

24. In consideration of sanction of the aforesaid facility, Defendant No. 1 to 3 executed the following loaning and security documents for facility under EPC which was extended from existing Rs. 2 Crore to Rs. 5 Crore in favour of the Applicant on 09.08.2012: i. Demand Promissory Note ii. Multipurpose Documents iii. Trust Receipt iv. Balance Confirmation

25. In consideration of sanction of the aforesaid facility, Defendant No. 1 to 3 executed the following loaning and security documents for facility Under FBP which was extended from existing Rs. 7 Crore to Rs. 12 Crore. i. Demand Promissory Note ii. Multipurpose Documents iii. Bills i.e. Cheque, Bills, Hundis and other Instruments with or without share certificate or other documents attached, lodged with you for collection and/ or discount and/ or purchase form limits. iv. Omnibus Indemnity v. Renewal document in account of FBP vi. Acknowledgement of debt in account no. 000385110000010.

26. In consideration of sanction of the aforesaid facility under BG for Rs. 25 Lakh, Defendant No. 1 to 3 executed following loaning and security documents on 09.08.2012: i. General Counter Guarantee & Indemnity covering several guarantees within the sanction guarantee limits ii. General Counter Guarantee & Indemnity covering several guarantees within the sanction guarantee limits

27. It is also stated that Defendant No. 1 to 3 executed the for forth supplemental deed of hypothecation dated 09.08.2012, for the facilities sanction under sanction letter dated 06.08.2012. Further, Defendant No. 4 appeared for the Bank on 09.08.2012 and executed the Deed of Guarantee.

28. It is further stated that Defendant No. 2 visited Applicant Bank on 09.08.2012 and extended the charge on his flat no. 02, on 1st Floor of Mayur Building of Badamwadi CHS Ltd., 377 V. P. Road, Mumbai- 400 004. Further, Defendant No. 2 and 4 approached Applicant Bank with title deed of flat no. 1702, on 17th floor, of building Runwal Pearl, ‘B’ Wing. Constructed on land bearing Gut No. 21/3, Hissa No. 3, Gut No. 21/2 Hissa No. 2(P) Gut No. 21/1 Hissa No. 1, and Gut No. 22 Hissa No. (Part) and Gut No. 24 Hissa No. (Part) of Village Chitalsar Manpada, Taluka and Dist. Thane and within the limits of Thane Municipal Corporation.

29. It is further stated that Defendant No. 1 to 3 again approached the Applicant Bank with a request to enhance the credit facility sanction to them. Defendant No. 1 to 3 requested the review EPC facility of Rs. 5 Crore with period from 90 days to 150 days which has been approved. Defendants requested to enhance the FBP facility from existing Rs.12 Crore to 20 Crore which has been approved. Defendant had requested to enhance the Bank guarantee from Rs. 25 Lakh to Rs. 5,25,00,000/- the said request was also accepted by the Applicant Bank.

30. In consideration of sanction of the aforesaid facility under EPC which was with period from 120 days to 150 days, Defendant No. 1 to 3 executed following loaning and security documents on 21.08.2013: i. Demand Promissory Note ii. Trust Receipt iii. Balance Confirmation in account no. 0003382610000009.

31. In consideration of sanction of the aforesaid facility, under FBP which was extended from existing Rs. 12 Crore to Rs. 20 Crore, Defendant No. 1 to 3 executed following loaning and security documents on 21.08.2013: i. Demand Promissory Note ii. Omnibus Indemnity iii. Bills i.e. Cheque, Bills, Hundis and other Instruments with or without share certificate or other documents attached, lodged with defendant for collection and/ or discount and/ or purchase form limits. iv. Acknowledgement of debt in account no. 000385110000010.

32. In consideration of sanction of the aforesaid facility, under BG for Rs. 5,25,00,000/-, Defendant No. 1 to 3 executed following loaning and security documents on 21.08.2013: i. General Counter Guarantee & Indemnity covering several guarantees within the sanction guarantee limits ii. General Counter Guarantee & Indemnity covering several guarantees within the sanction guarantee limits iii. Inland guarantee of Rs. 25 Lakh.

33. It is also stated that Defendant No. 1 to 3 executed the fifth supplemental deed of hypothecation dated 21.08.2013, for the facilities sanction under sanction letter dated 06.08.2013. Further, Defendant No. 4 appeared before the Bank on 21.08.2013 and executed the deed of guarantee.

34. It is further stated that Defendant No. 2 visited the Applicant Bank on 24.08.2018 and extended the equitable mortgage on their flat no. 1702, on 17th Floor, of Building Runwal Pearl, ‘B’ Wing. Constructed on land bearing Gut No. 21/3 Hissa No. 3, Gut No. 21/2 Hissa No. 2(P) Gut No. 21/1 Hissa No. 1, and Gut No. 22 Hissa No. (Part) and Gut No. 24 Hissa No. (Part) of Village Chitalsar Manpada, Taluka and Dist. Thane and within the limits of Thane Municipal Corporation.

35. It is further stated that Defendant No. 1 to 3 have not utilized the facility sanctioned to you under EPC, vide account No. 000338261000009 after the year 2014.

36. It is also stated that Defendant No. 1 vide their letter dated 03.07.2014 informed the Applicant Bank that they have dispatched one package containing Indian Made CUT & Polished Diamonds

Processed in India vide Invoice No. 28/2014-15 dated 03.07.2014 in favour of the EST Diamond Ltd. Further, Applicant Bank stated that the Invoice was for US $ 4,93,328.48. The Applicant Bank stated that they purchased the said Bills under Bill ID No. 0003FBP14000150. The bill amount at the prevalent rate of exchange came to Rs. 2,95,99,709/-. The Applicant Bank stated that vide their letter dated 14.07.2014, they informed the collecting bank at New York, i.e. Bank of India, for collection advice.

37. It is also stated that Defendant No. 1 vide their letter dated 15.09.2014 informed the Applicant Bank that they have dispatched CUT & Polished Diamonds Processed in India vide Invoice No. 49/2014 dated 15.09.2014 in favour of M/s. EST Diamonds Ltd. Applicant Bank stated that they purchased the said bill under Bill ID No. 0003FBP14000165. Applicant Bank stated that the bill amount at the prevalent rate of exchange came to Rs. 2,30,76,968/-. The Applicant stated that vide their letter dated 18.09.2014, they informed the collecting the bank at New York, i.e. Standard Chartered Bank, for collection advice.

38. Defendant No. 1 vide their letter dated 17.11.2014 informed the Applicant Bank that have dispatched CUT & Polished Diamonds Processed in India vide Invoice No. 65/2014-15 dated 15.11.2014 in favour of M/s. Brillient Gems Hongkong. Applicant Bank stated that they purchased the said bill under Bill ID No. 0003FBP14000165. Applicant Bank stated that the bill amount at the prevalent rate of exchange came to Rs. 1,21,00,000/-. Applicant stated that vide their letter dated 19.11.2014, they informed the collecting the bank at New York, i.e. Bank of India, for collection advice.

39. Defendant No. 1 vide their letter dated 17.11.2014 informed the Applicant Bank that have dispatched CUT & Polished Diamonds Processed in India vide Invoice No. 66/2014-15 dated 15.11.2014 in favour of M/s. Dong Fang XIN Jewellery Ltd. Kowllong (Hongkong). The Applicant Bank stated that the Invoice was for US $ 3,03,176.95. The Applicant Bank stated that they purchased the said bill under Bill ID No. 0003FBP14000250. Applicant Bank stated that the bill amount at the prevalent rate of exchange came to Rs. 1,70,00,000/-. Applicant stated that vide their letter dated 19.11.2014, they informed the collecting the bank at New York, i.e. Bank of India, for collection advice.

40. Defendant No. 1 further vide their letter informed the Applicant Bank that have dispatched one Package contacting Indian Made CUT & Polished Diamonds Processed in India vide Invoice No. 64/2014-15 dated 13.11.2014 in favour of Dong Fang XIN Jewellery Ltd. The Applicant Bank stated that the Invoice was For US $ 17184.52. The Applicant Bank stated that they purchased the said bill under Bill ID No. 0003FBP14000251. Applicant Bank stated that the bill amount at the prevalent rate of exchange came to Rs. 97,00,000/-. Applicant stated that vide their letter dated 19.11.2014, they informed the collecting the bank at New York, i.e. Bank of India, for collection advice.

41. Defendant No. 1 also vide their letter dated 17.11.2014 informed the Applicant Bank that they have dispatched CUT & Polished Diamonds Processed in India vide Invoice No. 65/2014-15 dated 15.11.2014 in favour of M/s. Brillient Gems Hongkong. Applicant Bank stated that they purchased the said bill under Bill ID No. 0003FBP14000252. Applicant Bank stated that the bill amount at the prevalent rate of exchange came to Rs. 97,50,000/-. Applicant stated that vide their letter dated 28.11.2014, they informed the collecting the bank at New York, i.e. Bank of India, for collection advice.

42. Defendant No. 1 further vide their letter informed the Applicant Bank that have dispatched CUT & Polished Diamonds Processed in India vide Invoice No. 58/2014-15 dated 07.10.2014 in favour of M/s. Supreme Trading F.Z.E. The Applicant Bank stated that they purchased the said bill under Bill ID No. 0003FBP15000028. Applicant Bank stated that the bill amount at the prevalent rate of exchange came to Rs. 1,34,00,000/-. Applicant stated that vide their letter dated 13.11.2014, they informed the collecting the bank at New York, i.e. Bank of India, for collection advice.

43. Defendant No. 1 further vide their letter dated 28.03.2015 informed the Applicant Bank that have dispatched CUT & Polished Diamonds Processed vide Invoice No. 87/2014-15 dated 28.03.2015 in favour of M/s. Supreme Trading EZE Dubai (UAE). The Applicant Bank stated that they purchased the said bill under Bill ID No. 0003FBP15000064. Applicant Bank stated that the bill amount at the prevalent rate of exchange came to Rs. 81,40,000/-. Applicant stated that vide their letter dated 31.03.2015, they informed the collecting the bank at New York, i.e. Bank of India, for collection advice.

44. Defendant No. 1 also vide their letter dated 30.03.2015 informed the Applicant Bank that have dispatched CUT & Polished Diamonds vide Invoice No. 90/2014-15 dated 30.03.2015 in favour of M/s. Supreme Trading FZE Dubai (UAE). Applicant Bank stated that they purchased the said bill under Bill ID No. 0003FBP15000065. Applicant Bank stated that the bill amount at the prevalent rate of

exchange came to Rs. 1,93,00,000/-. Applicant stated that vide their letter dated 08.04.2015, they informed the collecting the bank at New York, i.e. Bank of India, for collection advice.

45. Defendant No. 1 further vide their letter dated 07.04.2015 informed the Applicant Bank that have dispatched CUT & Polished Diamonds vide Invoice No. 01/2015-16 dated 06.04.2015 in favour of M/s. Sun Diam Hongkong. Applicant Bank stated that they purchased the said bill under Bill ID No. 0003FBP15000067. Applicant Bank stated that the bill amount at the prevalent rate of exchange came to Rs. 1,42,00,000/-. Applicant stated that vide their letter dated 08.04.2015, they informed the collecting the bank at New York, i.e. Bank of India, for collection advice.

46. Defendant No. 1 also vide their letter dated 10.04.2015 informed the Applicant Bank that have dispatched CUT & Polished Diamonds vide Invoice No. 05/2015-16 dated 09.04.2015 in favour of M/s. Brillient Gems Hongkong. Applicant Bank stated that they purchased the said bill under Bill ID No. 0003FBP15000085. Applicant Bank stated that the bill amount at the prevalent rate of exchange came to Rs. 2,09,25,000/-. Applicant stated that vide their letter dated 28.04.2015, they informed the collecting the bank at New York, i.e. Bank of India, for collection advice.

47. Defendant No. 1 vide their letter dated 24.06.2015 informed the Applicant Bank that have dispatched CUT & Polished Diamonds vide Invoice No. 19/2015-16 dated 24.06.2015 in favour of M/s. Alsalami Diamonds LLC Dubai (UAE). Applicant Bank stated that they purchased the said bill under Bill ID No. 0003FBP15000115. Applicant Bank stated that the bill amount at the prevalent rate of exchange came to Rs. 1,25,70,000/-.

48. It is also stated that they review Defendants Credit facility sanctioned by them and issued review of Credit facility letter dated 26.06.2015 at same level. Defendants have acknowledged the said letter. Defendant No. 2 to 4 visited the Applicant Bank on 09.03.2015 and extended the mortgage on their respective flats.

49. It is further stated that Defendant No. 1 to 3 approached the Applicant Bank in the month of March 2015 and requested for Adhoc limits of Rs. 5 Crore for 90 days. Pursuant to the said request, Applicant vide sanction letter dated 04.04.2015 for Adhoc limits.

50. In consideration of sanction of the aforesaid faciality, Defendant No. 1 to 3 executed various loaning and security documents in favour of the Applicant on 08.04.2015: i. Demand Promissory Note ii. Multipurpose Documents

51. It is also stated that as per sanction letter dated 04.04.2015, Defendants had undertaken to Applicant Bank that they will extent the existing mortgage as well as create fresh mortgage of additional security situated at Flat No.1401, Building 3C, Sector 2, India Bull Greens, Village Kon, Taluka Panvel, in the name of Defendant No.2 and 3 and further flat No.A-3, Mirchandani Bellgio Apartment condominium Pisoli, Taluka Haveli, Pune, in the name of Mr. Rajesh Chimanlal Sanghani and Mrs. Smita Rajesh Sanghani, (Proposed Guarantors). It is stated that though Defendant No.1 availed the Adhoc limits but they failed to mortgage the aforesaid flats as well as extent the mortgage on existing mortgage flats.

52. It is also stated that the Defendants on 09.05.2015 acknowledged the debit in Account No. 000385110000010.

53. However, after availing aforesaid various facilities and enhancement facilities, Defendants did not maintain the account nor complied the conditions of the sanction letter dated 04.04.2015, thus the Defendants Account No. 000385110000010 was classified as NPA on 28.09.2015. Thereafter, Applicant issued notice under section 13 (2) of the SARFAESI Act, 2002, and called upon the Defendants to repay the outstanding dues.

54. Further, Defendants appeared before the Bank on 16.05.2016 and acknowledged the debt in account No. 000385110000010.

55. Subsequently, Applicant issued legal notice dated 09.09.2016 to all the Defendants as a last resort for recovery of said amount. Defendants sent reply to the notice dated 09.09.2016, vide his reply dated 27.09.2016. Applicant Bank sent a counter reply to the reply vide their counter reply dated 19.10.2016. The Applicant stated that in the notice dated 09.09.2016, there was an inadvertent mistake in calculating the correct interest at proper rate. The Applicant Bank has mentioned the correct calculation of interest in the counter reply dated 19.10.2016 but the Defendants failed to comply with the said notice. Hence the present OA.

56. Notices were issued to the Defendants. Defendants put their appearance through counsel and filed their WS on 03.10.2017. Record reveals that since 16.07.2019, no one appeared on behalf of the Defendants.

57. In the Written Statement, the Defendants admitted availment of the loan facilities and execution of the loaning and security documents as well as defaults in repayment of the dues. It is stated that due to bad market position the business of Defendant No.1 is facing a lot of financial problems therefore, the Defendants requested several times by their letters and correspondences informed their business position to the Applicant. It is also stated that the Defendants have shown their bonafide willingness to surrender their property situated at 1702, Ruwal Pearl, Thane (W) but the Applicant did not accept its possession for the reason best known to them.

58. The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed through Chief Manager Vikas Gajanan Kanade.

59. I have heard the Ld. Counsel for the Applicant Bank and perused the record.

60. Insofar as written statement filed by the Defendants is concerned, the Defendants have admitted the availment of the loan facility, execution of loaning and security documents as well as default in repayment of the dues of the Applicant. Therefore, nothing is pending to decide in the written statement.

61. Record reveals that during the pendency of the OA, the Applicant informed this Tribunal that the mortgaged property i.e. Flat No.2, on the 1st Floor, in the building ‘Mayur’ of Badamwadi CHS Ltd., 377, V.P. Road, Mumbai-400004 was sold under the SARFAESI action. This Tribunal vide order dated 17.02.2023 in IA No.25/2023 released the original documents of the said property to the Applicant.

62. The witness of the Applicant Bank has fully corroborated the averments made in the OA, even otherwise the whole case of the Applicant Bank is based on documents and the witness has duly proved all these documents as against the defendants. In my view there is no question of disbelieving the evidence led by the Applicant Bank and the Applicant Bank has proved its case beyond reasonable doubt. The liability of Defendant No. 1 to 4 is joint and several.

63. In the light of above discussions, the Original Application filed by the Applicant Bank deserves to be allowed against the Defendant No. 1 to

4.

O R D E R

(i) I allow the present O.A. and direct the Defendant No. 1 to 4 to pay to the Applicant, jointly and severally, within a period of 60 days, a sum of Rs.24,41,93,982.71 (Rupees Twenty Four Crore Forty One Lakh Ninety Three Thousand Nine Hundred Eighty Two and paise Seventy One Only) together with pendentelite and future interest at the rate of 15.7 % p.a. in credit facility account with monthly rests from the date of filing of the present OA till its realisation (after adjusting the amount recovered by the Applicant during the pendency of the OA from the sale of the mortgaged property, as discussed in para 61 of this judgment).

(ii) Failing which the aforesaid amount shall be recovered from the sale of the remaining mortgaged properties; hypothecated goods and assets as well as other personal moveable and immoveable assets of the Defendants.

(iii) Defendants are hereby directed not to deal with their properties till further direction of Ld. Recovery Officer.

(iv) Defendants shall also pay the cost and expenses of the OA.

(v) Recovery Certificate be issued forthwith and be sent to the Recovery Officer of this Tribunal. Copy of this order be sent to the parties as per rules. File be consigned to record.

Place: Mumbai.

(Dr. Rekha G. Dhakar) Date : 10.01.2024

Presiding Officer, DRT-1, Mumbai.

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