PUNJAB NATIONAL BANK vs M/S CM BUILDING PVT LTD on 18 October 2023

J U D G M E N T

1. The present OA has been filed by the Applicant for recovery Rs.5,50,80,780.87/- (Rupees Five Crores Fifty Lakhs Eighty Thousand Seven Hundred Eighty and paisa Eighty Seven only) as on 09.07.2015 together with the interest at the rate of 14.50% p.a. (compounding) with monthly rests and penal interest 2% (simple) 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 approached the Applicant for a cash credit facility of Rs. 750 lakhs, which was sanctioned by the Applicant vide its sanction letter dated 22.06.2012.

3. In consideration of sanction the said Cash Credit Facility, the Defendants executed the following loaning and Security Document:-

a. Deed of Hypothecation of Goods and Book Debts dated 21.07.2012.

b. Deed of Hypothecation of Moveable Assets forming part of Fixed/Block Assets dated 21.07.2012.

c. Agreement of Guarantee dated 21.07.2012 executed by Defendant No.2 & 3;

d. Letter of Deposit of Title Deeds with an intention to create equitable mortgage of Flat No. 203, 2nd floor of Maria Salisbury Park at 82, Pali Hill, Bandra West, Mumbai 400050 dated 21.07.2012. The fact of creation of mortgage is confirmed by Defendant No.1 by their letter dated 29.07.2012. The Applicant has also vide their letter dated 30.07.2012 acknowledged creation of mortgage by Defendant No.1

4. It is further stated that the Applicant has registered their charge of Mortgage in the office of Registrar of Companies, Mumbai on 29.07.2012.

5. It is further stated that in order to recover the outstanding loan amount, the Applicant sold the said mortgaged property under the provisions of SARFAESI Act and realized an amount of Rs.4,57,92,500/- which was credited to the loan account after deducting and appropriating other bank charges. The balance amount of Rs.5,50,80,780.87 is to be recovered from the Defendants.

6. It is further stated that since the Defendants failed to regularize the accounts thus, the account was classified as NPA w.e.f. 30.09.2013. Thereafter, the Applicant issued notice under Section 13(2) of the SARFAESI Act, 2002 dated 12.10.2013 thereby recalling the credit facility and invoking the guarantees on 12.10.2013 and wilful defaulter notice dated 23.12.2013. Further, recall loan was issued by the Applicant on 13.06.2015 and called upon the Defendants to clear the outstanding dues but they failed to pay the dues. Hence, the present OA has been filed. .

7. Notices were issued to the Defendants. Defendants put their appearance through counsel however, despite opportunities, no WS has been filed by the Defendants. Record reveals that after 23.02.2018 no one appeared for the Defendants.

8. The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed through the Senior Manager Mr. Vilas More.

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

10. The witness of the Applicant Bank has fully corroborated the averments made in the TA, 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 Bank and the Applicant Bank has proved its case beyond reasonable doubt. The liability of Defendant No.1 to 3 is joint and several.

11. In the light of above discussions, the Transfer Original Application deserves to be allowed against the Defendant No.1 to 3.

O R D E R

(i) I allow the present OA and direct the Defendant No.1 to 3 to pay to the Applicant Bank, jointly and severally, within a period of 60 days, a sum of Rs.5,50,80,780.87/- (Rupees Five Crores Fifty Lakhs Eighty Thousand Seven Hundred Eighty and paisa Eighty Seven only) together with interest at the rate of 14.50% p.a. with monthly rests and penal interest 2% 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 the 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 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 : 18.10.2023

Presiding Officer, DRT-1, Mumbai SP/-