CANARA BANK (SYNDICATE BANK) vs NITIN AGARWAL on 9 May 2024

J U D G M E N T

1. The Original Application has been filed by the Applicant against the Defendants before Ld. DRT-III, Mumbai, which stands transferred to this Tribunal as per Letter dt. 26.09.2016 of Ld. Registrar DRT- III, Mumbai and registered as TOA No. 1303 of 2016. The present OA/TA has been filed by the Applicant for recovery of a sum of Rs.27,19,511/- (Rupees Twenty Seven Lakh Nineteen Thousand Five Hundred Eleven Only) with further interest thereon @ 13.75% p.a.

compounded with monthly rests from the date of filing of this application till the date of realization.

2. Facts as succinctly set out in the OA/TA are Defendant No.1 is the Borrower and Defendant No.2 is the Guarantor/Surety for repayment of all the monies advanced to the Defendant No.1 including interest and other charges.

3. It is stated that the Defendant No. 1 & 2 approached the Applicant and request to grant a Housing Loan for the sum of Rs. 18,00,000/- for the purpose of purchase of flat and the same was sanctioned vide sanction letter dt. 03.09.2009 by the Applicant.

4. In order to secure the aforesaid said Housing Loan facility the Defendants the following document in favour of the Applicant Bank on 04.09.2009 :-

a. Stamped Housing Loan Agreement executed by the Defendant No.1.

b. Stamped Guarantee Agreement executed by the Defendant No. 2.

c. Stamped Receipt executed by the Defendant No.1.

5. It is also stated that the Defendant No. 1 again approached the Applicant for the Ad-hoc Cash Credit facility of Rs. 50 Lakh, vide its letter dt.06.06.2012 but the Applicant sanctioned Rs.40 Lakh, Ad- hoc facility in the account of Defendant No.1 vide sanction note dt.11.06.2012.

6. It is further stated that to secure the aforesaid Housing Loan facilitie Defendant No.1 created the mortgage its Flat bearing No. P-1, on 3rd

Floor, in “Sun-N-Sand” Plot No. 138 Machados Cove, Curla Vainguinim Valley, Tal. Tiswade, Donapaula, Goa – 403 004.by depositing the Title Deeds of the said flat in favour of the Applicant.

7. However, after availing the said Home Loan Facility, the Defendant failed to adhere to the terms and conditions of the Sanction of aforesaid Credit Facility and neglected to make the payment to the Applicant bank. Therefore, the account was declared as NPA on 30.01.2012 and further the Applicant issued the Demand Notice on 22.05.2012 called upon the Defendant to make the payment of the outstanding dues but the Defendants failed to pay the dues. Hence, the present OA has been filed.

8. During the pendency of the OA/TA, the Defendant No.2 expired and accordingly, the Applicant moved an application (Exb.9) to bring on record the Legal Heirs of the Deceased Defendant No.2 which was allowed by this Tribunal vide order dated 03.08.2017 and Legal Heirs of deceased Defendant No.2 were impleaded in the present matter as Defendant No.2(a) to (c).

9. Notice was issued to the Defendant No. 1 alongwith Legal Heirs of deceased Defendant No. 2 i.e. Defendant No. 2 (a), (b) & (c). However, despite service, through publication none appeared for the Defendant No. 1 & 2 (a), (b) & (c) thus, they were proceeded ex- parte vide order dt. 21.02.2024.

10. The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed on 06.11.2017 through Senior Branch Manager Victor Menezes.

11. The witness of the Applicant Bank has fully corroborated the averments made in the OA/TA, 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 & 2 are joint and several. The liability of Defendant No. 2(a) to 2(c) is up to the extent of estate inherited by them from the deceased Defendant No. 2.

12. In the light of above discussions, the Original Application deserves to be allowed against the Defendant No.1 & Defendant No. 2(a) to

(c) .

O R D E R

(i) I allow the present OA/TA and direct the Defendant No.1 & Defendant No. 2(a) to (c) to pay to the Applicant Bank, within a period of 60 days, a sum of Rs.27,19,511/- (Rupees Twenty Seven Lakh Nineteen Thousand Five Hundred Eleven Only) with further interest thereon @ 13.75% p.a. compounded with monthly rests from the date of filing of the present OA/TA till its realization.

(ii) Failing which the aforesaid amount shall be recovered from the sale of hypothecated assets, mortgage property and other personal moveable and immoveable assets of the Defendants.

(iii) It is made clear that the liability of Defendant No. 2(a) to 2(c) is up to the extent of estate inherited by them from the deceased Defendant No. 2.

(iv) Defendants is hereby directed not to deal with his properties till further direction of Ld. Recovery Officer.

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

(vi) 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 : 09.05.2024

Presiding Officer,

DRT-1, Mumbai