PUNJAB NATIONAL BANK vs M/S MAZA AQUACULTURES on 7 November 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-III, Mumbai, which stands transferred to this Tribunal on 30.12.2016 as per Govt. Notification dated 26.09.2016 and registered as TA No.225/2016. The OA has been filed for recovery of Rs.68,20,879.70 (Rupees Sixty Eight Lakhs Twenty Thousand Eight Hundred Seventy Nine and paise Seventy only) which include amount of Rs.32,23,093.28 under the Term Loan and amount of Rs.35,97,786.42 under the Cash Credit, alongwith further interest thereon at the rate of 12.75% & 12.25% respectively p.a. compounded at monthly rests from the date of filing of the present OA till its realization.

2. Facts as succinctly set out in the OA are that the Defendant No.1 is a Proprietary concern represented by its Proprietor Mr. Zarir R. Suraliwalla and Defendant No.2 and 3 are the Guarantors. The Defendant No.1 through its Proprietor approached the Applicant Bank alongwith an application dated 25.02.2012 for a Term Loan of Rs.26 lakhs and Cash Credit Facility of Rs.23.50 lakhs for the business purpose. The said request was considered by the

Applicant Bank and on 09.03.2012, the Applicant Bank sanctioned the Term Loan of Rs.26 lakhs and Cash Credit of Rs.23.50 lakhs, with interest @15.25% & 13.75% respectively, p.a. with monthly rests.

3. In consideration of sanction the above facilities, the Defendant No.1 through its proprietor, executed the following loaning and security documents:

(i) Hypothecation Agreement dated 09.03.2012, whereby hypothecated Shrimp Seeds are cultivated and exported, nets, lights, generator, aerotors, pumpes, starters, cables, catwalk, checktrays, barrels, DG room, huts, suction pumps, gate etc.

(ii) Deed of Guarantee dated 09.03.2012 executed by the Defendant No.2 & 3

4. However, after availing the above loan facilities, the Defendant No.1 failed to adhere the financial discipline, inspite of repeated oral and written reminders from the Applicant. Thereafter, the Applicant issued recall notice dated 20.01.2015 and called upon the Defendants to pay the outstanding dues but they failed to pay the dues. Hence, the present OA has been filed.

5. Notices were issued to the Defendants. Defendants put their appearance through counsel and filed their respective written statements.

6. In the written statement, the Defendant No.1 has raised objection that Mr. Zarir R. Suraliwalla who is shown as Proprietor of Defendant No.1 is totally unwarranted, false, frivolous and without any documentary support. It is stated that Mr. Zarir R. Suraliwalla was never being the proprietor of Defendant No.1 and also no relation of any nature whatsoever with Defendant No.1 thus, the present OA may be dismissed with compensatory costs.

7. In the joint written statement filed by the Defendant No.2 and 3, they have raised the objection that the Defendant No.2 & 3 never signed any Guarantee to secure the loan as alleged by the Applicant in the present OA thus, the present OA is liable to be dismissed.

8. The Applicant has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed through D. Iyer, Deputy Manager of the Applicant.

9. The Defendant No.1 has filed its CAOD through Mr. Zarir R. Suraliwalla, however, no documentary evidence has been filed by Defendant No.1.

10. The Defendant No.2 & 3 also filed their respective CAOD however, no documentary evidence has been filed on their behalf.

11. I have heard the Ld. Counsel for the Applicant and Defendant No.2 & 3 and perused the record. Despite opportunities, the Defendant No.1 failed to argue in the present matter.

12. Now hereinafter, I would like to decide the issue raised by the Defendant No.1, 2 & 3 in their written statement.

13. The Defendant No.1 has raised objection that Mr. Zarir R. Suraliwalla who is shown as Proprietor of Defendant No.1 is totally unwarranted, false, frivolous without any documentary support, thus, the present OA is liable to be dismissed. It is stated that Mr. Zarir R. Suraliwalla was working in company viz. Godrej since 22.06.1979 and was retired from the said company w.e.f. 12.09.2012. It is stated that Mr. Zarir R. Suraliwalla was never being the proprietor of Defendant No.1 and also no relation of any nature whatsoever with Defendant No.1. It is also stated that Mr. Zarir Suraliwalla has never entered into loan transaction on behalf of the Defendant No.1 as alleged in the present OA thus, it is stated that the Applicant is not entitled for any relief and the present OA may be dismissed with compensatory costs.

I have gone through the original loan application dated 25.02.2012 (Exhibit No.13) filed by the Applicant. The said loan application is duly submitted and signed by the Mr. Zarir R. Suraliwalla, as a proprietor of Defendant No.1 Company. Thus, I do not find any merit in the objection raised by the Defendant No.1 and same is hereby rejected.

14. The Defendant No.2 & 3 have raised objection that the Defendant No.2 & 3 never signed any Guarantee to secure the loan as alleged by the Applicant in the present OA thus, the present OA is liable to be dismissed.

Record reveals that the Applicant bank has filed the Deed of Guarantee dated 09.03.2012 (Exhibit No.16) of Defendant No.2 & 3. The said Deed of Guarantee is duly signed by the Defendant No.2 & 3 and same was executed for repayment of dues under the Cash Credit limit of Rs.23.50 lakhs and Term Loan of Rs.26 lakhs. Thus, the Defendant No.2 & 3 being the guarantors are liable to pay the dues of the Applicant. Therefore, the objection raised by the Defendant No.2 & 3 is baseless and hence, rejected.

15. In the written submission, the Defendant No.1 has raised an objection that the Defendant No.1 has already paid amount of Rs.3,84,000/- on 28.06.2013, i.e. before the filing of the present OA however, the Applicant Bank has not considered the said amount in the OA, thus, the alleged amount claimed in the present OA is totally false therefore, the OA is deserves to be dismissed in limine. The Defendant No.1 also filed statement of account alongwith the written submission to prove the same.

On the other hand, the Applicant has stated that since the statement of account filed by the Defendant No.1 is not certified as per the Banker’s Book of Evidence Act thus, the same is not acceptable.

I have gone through the statement of account filed by the Defendant No.1 alongwith the written submission. On perusal of the same, I found that on 28.06.2013 two transactions was done by a single Transaction ID i.e. an amount of Rs.3,74,000/-, vide Transaction ID: S4656166; (which is duly reflected in the statement of account filed by the Applicant) however, another amount of Rs.3,84,000/- was also done that too by same Transaction ID. The said two credit entries made in statement of account by a single transaction ID creates doubts therefore, as rightly stated by the Applicant that since the statement of account filed by the Defendant No.1 is not certified as per banker's book of evidence thus, the same is not acceptable.

Even otherwise, the Defendant No.1 has filed its written statement in May, 2017 however, no such objection has been raised by the Defendant No.1 in its written statement. Further, no documentary evidence has been filed on behalf of the Defendant No.1. Thereafter, this Tribunal granted sufficient opportunities to the Defendant No.1 to argue the matter but the Defendant No.1 failed to argue in the matter. The said ground is taken only in written submission filed by the Defendant No.1, which is not acceptable. Thus, this objection of the Defendant No.1 is also rejected.

16. The witness of the Applicant has fully corroborated the averments made in the OA, even otherwise the whole case of the Applicant 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 and the

Applicant has proved its case beyond reasonable doubt. The liability of Defendant No.1 to 3 is joint and several.

17. In the light of above discussions, the present Original Application deserves to be allowed against the Defendants.

O R D E R

(i) The present OA is hereby allowed and Defendant No.1 to 3 are hereby directed to pay to the Applicant, jointly and severally, within a period of 60 days, a sum of Rs.68,20,879.70 (Rupees Sixty Eight Lakhs Twenty Thousand Eight Hundred Seventy Nine and paise Seventy only), alongwith further interest at the rate of 12.75% p.a. in Term Loan & 12.25% p.a. in Cash Credit compounded at monthly rests from the date of filing of the present OA till its realization.

(ii) Failing which the aforesaid amount shall be recovered from the sale of hypothecated 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 the further direction of the Ld. Recovery Officer of this Tribunal.

(iv) The Defendants shall also pay the cost and expenses of the present 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) Dated: 07.11.2023

Presiding Officer,

DRT-1, Mumbai