BANK OF INDIA vs M/S BRANDHOUSE OVIESSE LIMITED on 27 October 2023

J U D G M E N T

1. The Original Application has been filed by the Applicant against the Defendants before the Ld. DRT-II, Mumbai, which stands transferred to this Tribunal on 01.02.2017 as per the Govt. Notification dated 26.09.2016 and registered as TA No.1930/2016. The OA has been filed for recovery of the following amount:

a. Rs.9,52,79,730.06 (Rupees Nine Crores Fifty Two Lakhs Seventy Nine Thousand Seven Hundred Thirty and Paise Six Only) in respect of Term Loan with further interest @15.70% p.a. with monthly rests from the date of filing of the present OA till its realization.

b. Rs.4,85,30,540.87 (Rupees Four Crores Eighty Five Lakhs Thirty Thousand Five Hundred Forty and Paise Eighty Seven Only) in respect of Cash Credit, with further interest @15.20% p.a. with monthly rests from the date of filing of the present OA till its realization. Aggregating to sum of Rs.14,38,10,270.93 (Rupees Fourteen Crores Thirty Eight Lakhs Ten Thousand Two Hundred Seventy and paise Ninety Three only) with interest as mentioned above.

2. Facts as succinctly set out in the O.A./T.A are that the Defendant No.1 approached the Applicant Bank and sought for fund based and non fund based credit limits to the extent of Rs. 50 Crore. The Applicant sanctioned the total limits of Rs.50 crores vide sanction letter dated 09.07.2010 in following manner:

(i) Cash Credit/Letter of Credit (Inland/Foreign) of Rs.10 crores

(ii) Term Loan of Rs.40 crores.

(iii) (Letter of Credit (Inland/Foreign) within the above Term Loan Limit: Rs.20 crores.

3. It is stated that the same was reviewed by the Applicant Bank on 28.03.2012.

4. In consideration of sanction the said Cash Credit loan, the Defendant No.1 executed the following loaning and security documents on 18.08.2010:

a. Demand promissory note

b. Bearer Letter

c. Stamped Agreement

d. Composite Document

e. Instalment letter

f. Hypothecation cum Loan Agreement, whereby hypothecated all fixed and current assets, including rent receipts of the Defendant No.1

g. Defendant executed an acknowledgement of Debt and security dated 05.03.2012.

h. Defendant No. 2 to 4, who have individually executed deeds of guarantee dated 18.08.2010.

5. In consideration of sanction the Term Loan facility, the Defendant No. 1 to 4 executed the following loaning and security documents on 18.08.2010:

a. Demand promissory note

b. Two instalment letter s

c. Bearer Letter

d. A Declaration

e. A Stamped Declaration

f. A Multipurpose Document

g. Hypothecation cum Loan Agreement

h. Three deeds of Guarantee executed by Defendant No. 2 to 4

i. An acknowledgement of Debt and security dated 05.03.2012.

6. However, the Defendants failed and neglected to repayment of the dues under the said credit facilities. Thus, the account of the Defendant No. 1 was classified as NPA on 31.12.2013. Thereafter, the Applicant issued legal Notice dated 15.01.2014 and called upon the Defendants to pay the outstanding dues but they failed to pay the dues. Hence, the present OA has been filed.

7. Notices were issued to the Defendants. Despite service through publication, no one appeared for the Defendant No.1, 3 & 4 thus, they were proceeded ex-parte vide order dated 21.06.2017. Defendant No. 2 put its appearance through counsel and filed vakalatnama however, no WS has been filed by the Defendant No.2. Record reveals that since 28.03.2018, no one appeared on behalf of the Defendant No.2.

8. The Applicant Bank has filed and produced all the relevant documents and original documents alongwith their claim affidavit filed through their Chief Manager Mr. Brajesh Chandra.

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

10. 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 4 are joint and several.

11. In the light of above discussions, the Original Application by the Applicant Bank deserves to be allowed against the Defendant No.1 to 4.

O R D E R

(i) The present O.A. is hereby allowed and Defendant No.1 to 4 are hereby directed to pay to the Applicant Bank, jointly and severally, within a period of 60 days, the following sums:

a. Rs.9,52,79,730.06 (Rupees Nine Crores Fifty Two Lakhs Seventy Nine Thousand Seven Hundred Thirty and Paise Six Only) in respect of Term Loan, with further interest @15.70% p.a. with monthly rests from the date of filing of the present OA till its realization.

b. Rs.4,85,30,540.87 (Rupees Four Crores Eighty Five Lakhs Thirty Thousand Five Hundred Forty and Paise Eighty Seven Only) in respect of Cash Credit, with further interest @15.20% p.a. with monthly rests from the date of filing of the present OA till its realization.

Aggregating to sum of Rs.14,38,10,270.93 (Rupees Fourteen Crores Thirty Eight Lakhs Ten Thousand Two Hundred Seventy and paise Ninety Three only) alongwith interest as mentioned above.

(ii) Failing which the aforesaid amount shall be recovered from the sale of hypothecated assets, 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/-