CANARA BANK vs SARFRAJ SHAHBUDDIN KITTUR on 13 May 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 following amounts: i. Rs. 2,77,483.47 (Rupees Two Lakh Seventy Seven Thousand Four Hundred Eighty Three and Paise Forty Seven Only) from Defendant No. 1 together with interest thereon @ 14 % p.a. compounded with monthly rests under the said Term Loan account from the date of filing of the present OA till its realisation. ii. Rs. 34,53,295.91 (Rupees Thirty Four Lakh Fifty Three Thousand Two Hundred Ninety Five and Paise Ninety One Only) from Defendant No. 1 & 2 together with interest thereon @ 11 % p.a. compounded with monthly rests under the said Housing Loan from the date of filing of the present OA till its realisation. Aggregating to sum of Rs. 37,30,779.38 (Rupees Thirty Seven Lakh Thirty Thousand Seven Hundred Seventy Nine and Paise Thirty Eight Only) with interest as mentioned above.

2. Facts as succinctly set out in the present OA are that the Defendant No.1 is a borrower and Defendant No.2 is the Guarantor \ Surety.

3. It is stated that on or about 13.07.2010 the Defendant No. 1 herein approached the Applicant with a request to grant him a Synd Vyapar/ Term Loan Facility in the sum of Rs. 2 Lakh for the purpose of business improvement. Pursuant to the said request, Applicant vide sanction letter dated 13.07.2010 sanctioned the loan facility up to the extent of Rs. 2 Lakh in favour of the Defendant No. 1.

4. In consideration of sanction of aforesaid facility, Defendants executed following loaning and security documents on 14.07.2010: i. Stamped Composite Hypothecation Agreement ii. Stamped Receipt

5. It is further stated that on or about 21.09.2010 the Defendant No. 1 along with the Defendant No.2 once again approached the Applicant with a request to grant him Housing Loan facility in the sum of Rs. 25 Lakh for the purpose of plot of land. Pursuant to the said request, Applicant agreed to grant the Housing Loan facility to the extent of Rs. 25 Lakh to the Defendant No. 1.

6. In consideration of sanction of aforesaid facility, Defendants executed following loaning and security documents on 14.07.2010: i. Stamped Housing Loan-cum-Guarantee Agreement ii. Stamped Receipt

7. In order to secure the aforesaid facility, Defendant No. 1 on 15.09.2010 executed and delivered to them a letter for handing over title deeds of property and relevant documents by way of deposit of tile deeds dated 19.10.2010 in respect of the plot of land bearing Survey No. 401/ 3-A, known as “Enami Malu Deul Wada” alias

“Mali Vianim Deulazovol” situated at Village Mandrem, Taluka Pernem, Dist. North Goad, with the intention of creating a charge and/ or an equitable mortgage by deposit of title deeds of the said plot in favour of the Applicant.

8. However, after availing aforesaid facilities, Defendant No. 1 failed and neglected to pay the outstanding amount. Further, Applicant issued demand notice dated 23.07.2011 under section 13 (2) of the SARFAESI Act, 2002, and called upon the Defendants to repay the outstanding dues. Thereafter, Applicant sent a possession notice and sale notice on 19.10.2011 under section 13 (4) of the SARFAESI Act, 2002, the said notices were received and duly acknowledged by the Defendants.

9. It is further stated that on or about December, 2011, one Mr. Vinod Parshuram Harmalkar i.e., the occupant of the suit property has filed a civil suit bearing No. 118 of 2011, before the Hon’ble Dist. Court of Pernem, Goa for restraining the Applicant for taking further steps under SARFAESI Act, and for permanent injunction, and declaration and consequential relief, which is still pending before the Hon’ble Dist. Court at Pernem, Goa.

10. It is also stated that pursuant to the above they have also filed an application on 22.03.2012 before the Sub-Registrar Bardez, Mapusa, and requested them to add their charge on the suit property. The Applicant herein stated that the Sub-Registrar Bardez, Mapusa had issued a certificate of Encumbrance on Property on 29.03.2012 and accordingly registered their charge on the suit property.

11. It is further stated that inspite of granting time thereafter, the Defendant No. 1 failed and neglected to pay up the said outstanding amounts in the said 2 accounts, the Applicant therefore, ultimately sent 2 separate Demand Notices through their Advocates both dated 19.07.2013 and called upon them to pay the outstanding dues, but they failed to do so. Hence the present OA.

12. Notices were issued to the Defendants. Despite service of transfer notice, none appeared for the Defendant No. 1 & 2 nor any WS has been filed, thus they were proceeded ex-parte vide even date.

13. The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed through Mr. Chetan N. Warudkar and Additional Claim Affidavit through Ajay Naik.

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

15. 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 defendant. 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 is joint and several for an amount of Rs. 34,53,295.91 with further interest.

16. It is clarified that out of the total claim amount of Rs. 37,30,779.38 the Applicant is claiming recovery from the Defendant No.2 of Rs. 34,53,295.91 with further interest, therefore, the liability of the Defendant No.2 is limited to the said amount.

17. In the light of above discussions, the Original Application filed by the Applicant Bank deserves to be allowed against the Defendant No.1 & 2.

O R D E R

(i) I allow the present O.A. and direct the Defendant No. 1 & 2to pay to the Applicant, within a period of 60 days, a sum of following amount:

a. Rs. 2,77,483.47 (Rupees Two Lakh Seventy Seven Thousand Four Hundred Eighty Three and Paise Forty Seven Only) by Defendant No. 1 together with interest thereon @ 14 % p.a. compounded with monthly rests under the said Term Loan account from the date of filing of the present OA till its realisation.

b. Rs. 34,53,295.91 (Rupees Thirty Four Lakh Fifty Three Thousand Two Hundred Ninety Five and Paise Ninety One Only) by Defendant No. 1 & 2 together with interest thereon @ 11 % p.a. compounded with monthly rests under the said Housing Loan from the date of filing of the present OA till its realisation. Aggregating to sum of Rs. 37,30,779.38 (Rupees Thirty Seven Lakh Thirty Thousand Seven Hundred Seventy Nine and Paise Thirty Eight Only) with interest as mentioned above.

(ii) Failing which the aforesaid amount shall be recovered from the sale of the mortgaged property as well as; hypothecated goods; 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 : 13.05.2024

Presiding Officer, DRT-1, Mumbai.

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