Phoenix ARC Private Limited vs DHAIRAP SHAH on 28 December 2023

J U D G M E N T

1. The Original Application has been filed by the Applicant against the Defendant before Ld. DRT-III, Mumbai, which stands transferred to this Tribunal as per the Govt. Notification dated 26/09/2016 and registered as TA No. 285/2016. The OA has been filed by the Applicant for recovery of Rs. 13,53,628/- (Rupees Thirteen Lakhs Fifty Three Thousand Six Hundred Twenty Eight Only) with further interest @19 % p.a. from the date of filing of the Original Application till payment and or realisation.

2. Facts as succinctly set out in the present OA/TA are that in or about June, 2008, the Defendant has approached the Barclays Bank for being grant a term loan in their application. The Barclays Bank considered the request of Defendant and sanctioned term loan of Rs. 6 Lakhs.

3. In consideration of sanction of said term loan facility, Defendant executed Demand Promissory Note dated 29.06.2008 in favour of the Barclays Bank.

4. It is further stated that Barclays Bank Pls, vide an assignment agreement dated 30.03.2011, assigned, inter alia, to and or in favour of the Phoenix Trust FY 11-5 Scheme, the entire dues receivables from the Defendant connection with the captioned account along with the underlying security and security interest created for repayment of the said loan availed by the Defendant. Pursuant to the said assignment, the Applicant has become solely entitle not only to receive the entire dues liable to be paid by the Defendant towards repayment of the said loan but also enforce the security.

5. However, after Barclays Bank forwarded the account of the Defendant, the Applicant observed that Defendant became irregular to pay the outstanding dues to the Applicant. Thereafter, the Applicant by their advocates notice dated 16.12.2015 and called upon the Defendant to make the payment of outstanding dues. Hence, the present OA has been filed.

6. Notice was issued to the Defendant. Despite service, none appeared for the Defendant nor filed the WS thus, Defendant is set ex-parte vide order dated 08.02.2017.

7. The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed through Authorised Signatory Sandip Kapse.

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

9. 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 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.

10. In the light of above discussions, the Original Application filed by the Applicant Bank deserves to be allowed against the Defendant.

O R D E R

(i) I allow the present O.A. and direct the Defendant, to pay to the Applicant, within a period of 60 days, a sum of Rs. 13,53,628/- (Rupees Thirteen Lakhs Fifty Three Thousand Six Hundred

Twenty Eight Only) with further interest @19 % p.a. from the date of filing of the Original Application till payment and or realisation.

(ii) Failing which the aforesaid amount shall be recovered from the sale of the immoveable assets as well as other personal moveable of the Defendant.

(iii) Defendant is hereby directed not to deal with their properties till further direction of Ld. Recovery Officer.

(iv) Defendant 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 : 27.12.2023

Presiding Officer, DRT-1, Mumbai.

Tjs/-