Debts Recovery Tribunals and Appellate Tribunals

PUNJAB NATIONAL BANK vs M/S BHANU COSMETICS PACKAGING PVT LTD on 27 October 2023

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Registered on: 21.12.2015

Decided on: 27.10.2023

IN THE DEBT RECOVERY TRIBUNAL-I MUMBAI

TRANSFER ORIGINAL APPLICATION NO. 1145 of 2016

PUNJAB NATIONAL BANK

)

A body corporate constituted under Banking )

Companies (Acquisition & Transfer of Under- )

Takings) Act, 1970, having its Head Office at 7, )

Bhikhaiji Cama Place, New Delhi 110607 and a )

Branch Office, inter alia, at Asset Recovery )

Management Branch at 1st Floor, PNB Pragati )

Tower, Plot No. C-9, Block- G, Bandra Kurla )

Complex, Bandra (East), Mumbai- 4000051

)

… APPLICANT

VERSUS

1. M/S. BHANU COSMETICS

)

PACKAGING PVT. LTD. having its

)

Office: 18, Nigo’s building, Cama Estate )

Road, Garegaon (E), Mumbai 400 063

)

2. MR. PRAFUL BHANJI NISAR,

)

An adult Indian inhabitant,

)

3. SMT. MEENA PRAFUL NISAR,

)

An adult Indian inhabitant,

)

4. SMT. BHANUBEN B. NISAR,

)

An adult Indian inhabitant,

)

All Above 2, 3 & 4 are having address:

)

Room No. 5, Vishwashanti Building,

)

TPS Road No. 5, Prabhat Colony,

)

Santacruz (E), Mumbai 400 055

)

5. M/S. RAJESHWARI ENTERPRISES

)

Proprietor- Mr. Praful B. Nisar (HUF)

)

Survey No. 66, Plot No. 22 & 24 Satvali )

Road, Valiv Phata, Behind Sunita Tools, )

Vasai (E), District: Thane 401205

)

...DEFENDANTS

______________________________________________________________

Counsel for the Applicant

:

Pooja Kharat i/b Law Focus

Counsel for the Defendants

:

Ex-parte

______________________________________________________________

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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.7,79,45,811.94/- (Rupees Seven Cores Seventy Nine Lakhs Forty Five Thousand Eight Hundred Eleven and Paise Ninety Four Only) with interest at the rate of base rate plus 4.50% p.a. for cash credit and Base rate plus 2.00% p.a. plus term premia for car loan with monthly rests plus penal interest @2.00% p.a. simple from 16.03.2015 till date of payment.

2. Facts as succinctly set out in the O.A./T.A are that the Defendant No.1 approached the Applicant Bank seeking the Cash Credit facility. Pursuant to the said request, the Applicant on 19.03.2012 sanctioned cash credit (Hypothecation) limit of Rs. 475 Lakhs and inland letter credit/foreign letter of credit limit of Rs. 250 Lakhs (Aggregating to Rs.725 Lakhs). Thereafter, on 16.04.2012 the Defendant No. 1 again approached the Applicant Bank for seeking Term Loan for purchasing car. Pursuant to the request of Term Loan for purchase of car, the Applicant on 24.04.2012 sanctioned Term Loan (Vehicle) of Rs. 22.97 Lakhs.

3. In consideration of sanction the cash credit facility, the Defendant No.1 to 3 executed the following loaning and security documents:

a. Agreement of Hypothecation deed of good & Book Debts dated 20.03.2012.

b. Deed of Hypothecation of movable assets forming part of fixed and block assets for availing Cash Credit Facility dated 20.03.2012 between the Defendant No.1 through Defendant No.3 and the Applicant Bank to secure Cash Credit and ILC/FLC Limit (within cash credit limit).

c. Agreements of Guarantee dated 20.03.2012 executed by Defendant No. 2, 3 & 5 and dated 13.11.2013 executed by Defendant No. 4.

d. Defendant No. 5 created a Memorandum of Deposit of Title deeds on 19.03.2012 of Plot No. 22 & 24, survey No. 66 & 66 (1/2), Satvali Road, Valiv Phata, Behind Sunita Tools, Vasai (E), District: Thane, Maharashtra with an intention to create a mortgage to secure the liabilities of Defendant No. 1 towards the Applicant.

4. In consideration of sanction the Term Loan facility, the Defendant No. 1 to 3 executed the following loaning and security documents:

a. Letter of Hypothecation of Vehicle dated 25.04.2012 (For Fortuner Car bearing Registration No.MH-48-6540);

b. Agreement of Guarantee executed by Defendant No. 2 & 3.

5. However, the Defendant No.1 failed to adhere the financial discipline and committed defaults in the loan account and also failed to pay the instalments in term loan. The Applicant issued various letters and reminders to the Defendants to regularize the account but they failed to do so. Thus, the account was classified as NPA on 04.01.2014. Thereafter, the Applicant issued Recall Notice under section 13 (2) of the SARFAESI Act, 2002 dated 09.03.2017 and called upon the Defendants to pay the outstanding dues. Further, the Applicant issued notice under section 13 (4) of SARFAESI Act, 2002 dated 14.03.2014 to Defendant No. 1 to 5 to deliver possession of the secured assets. Then, ultimately on 25.04.2014 the authorized officer of the Applicant took symbolic possession of the mortgage property. The Applicant also filed an application before Ld. District Magistrate. It is also stated that the Applicant also issued a legal notice through the Advocate dated 03.03.2015 to the Defendants and called upon them to pay the outstanding dues but to no avail. Hence, the present OA has been filed.

6. Notices were issued to the Defendants. Despite service, no one appeared for the Defendants thus, they were proceeded ex-parte vide even order dated 27.10.2023.

7. The Applicant Bank has filed and produced all the relevant documents and original documents alongwith their claim affidavit filed through their Manager, Manisha Kumari.

8. I have heard the Ld. Counsel for the Applicant and gone through the record.

9. During the pendency of the OA, it is informed by the Applicant that the secured asset i.e. mortgaged property has been sold by the Applicant for an amount of Rs.292.25 lakhs under the SARFAESI Act,

2002 to Mr. Mukesh Mangilal Borana, and the Applicant has duly adjusted the said amount in particulars of claim. Therefore, it is stated that as on 22.09.2022, the Defendants are liable to pay the Applicant an amount of Rs.4,83,65,834.93 alongwith further interest at 14.75% p.a. till its realization.

10. It is also informed that the Particulars of Claim issued by the Applicant, includes penal interest @2% p.a. however, the penal interest is not debited for the purpose of compounding.

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 to 5 are joint and several.

12. In the light of above discussions, the Original Application deserves to be allowed against the Defendant No.1 to 5 for an amount of Rs.4,83,65,834.93 (Rupees Four Crore Eighty Three Lakhs Sixty Five Thousand Eight Hundred Thirty Four and paise Ninety Three only) as on 22.09.2022 alongwith further interest at 14.75% p.a. till its realization.

O R D E R

(i) The present O.A. is hereby allowed and Defendant No.1 to 5 are hereby directed to pay to the Applicant Bank, jointly and severally, within a period of 60 days, a sum of

Rs.4,83,65,834.93 (Rupees Four Crore Eighty Three Lakhs Sixty Five Thousand Eight Hundred Thirty Four and paise Ninety Three only) as on 22.09.2022 alongwith further interest at 14.75% p.a. till its realization.

(ii) Failing which the aforesaid amount shall be recovered from the sale of hypothecated assets, hypothecated vehicle as well as other personal movable and immovable 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/TA.

(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 : 27.10.2023

Presiding Officer,

DRT-1, Mumbai

Tjs/-

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