Debts Recovery Tribunals and Appellate Tribunals
Phoenix ARC Private Limited vs ABDUL SAYED on 29 November 2023
Registered on: 08.06.2016
Decided on: 29.11.2023
IN THE DEBT RECOVERY TRIBUNAL-I AT MUMBAI
TRANSFER ORIGINAL APPLICATION NO. 271 of 2016
(OA No. 525/2016 is Transferred from DRT-III, Mumbai &
Registered as TOA No. 271/2016)
PHOENIX ASSET RECONSTRUCTION
COMPANY PRIVATE LIMITED having its
registered office at 7th Floor, Dani Corporate Park, 158, C.S.T. Road, Kalina, Santacruz (E), Mumbai- 400 098 acting in its capacity as the trustee of Phoenix Trust – FY 11-5 Scheme “A”
…. APPLICANT
VERSUS
MR. ABDUL SATTAR SAYED C-4, Shiv
Asthan, 16th Road, Next to Shivsagar Restaurant, Bandra (West), Mumbai- 400 050
… DEFENDANT
____________________________________________
Counsel for the Applicant : Advocate Vijay Deshpande i/b V.
Deshpande & Co.
Counsel for the Defendant : Ex-parte
Citations and Judicial Treatment
Cited by
0
Decisions in the index citing it
Cites
0
Decisions referred to
In this index
0
Of the decisions it cites
Overruled / Questioned
0
No negative treatment found
Loading the citing and cited decisions…
This judgment in the centre: on the left the decisions it cites, on the right the decisions citing it. Colour is the treatment; choose a decision to open it.
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. 271/2016. The OA has been filed by the Applicant for recovery of Rs. 12,51,867/- (Rupees Twelve Lakhs Fifty One Thousand Eight Hundred Sixty Seven Only) with further interest @ 18% 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 the in or about July, 2007 the Defendant has approached to the Barclays Bank at its Annie Besant Road, Worli Branch for being sanctioned a term loan. Pursuant to the request the Applicant sanctioned the term loan facility of Rs. 7,50,000/-.
3. In consideration of sanction the term loan facility the Defendant executed Demand promissory note on 25.07.2016.
4. It is stated that Barclays Bank Plc has, vide an assignment agreement dated 30.03.2011, assigned inter alia, to and or in favour of Phoenix Trust FY 11-5. Scheme “A” (of which the Applicant is the trustee), the entire dues/ debts/ loans receivables from the Defendant under/ in connection with the captioned account along with the underlying security and security interest created for repayment of the said loan availed by the Defendant. Further it is stated that pursuant to the said assignment, the Applicant has become solely entitled 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. It is further stated that the monthly installment was commencing from 01.09.2007 towards the part payment of the liability Defendants have issued post dated cheques from time to time. The Barclays Bank PLC has endorsed the aforesaid post dated Cheque in favour the Applicant for aggregate amount of Rs. 8,67,600/- the Applicant presented one of these cheque of Rs. 2,16,900/- dated
22.12.2013 for encashment, however, on presentation of the said cheque the same was returned dishonor with the remark “Funds Insufficient”.
6. However, after the account was forwarded by Barclays Bank plc, the Applicant observes that the Defendant have become irregular and neglected in making payments. Thereafter, the Applicant through their advocate notice dated 16.12.2015 called upon the Defendant to make the payment of outstanding dues but he failed to pay the dues. Hence, the present OA has been filed.
7. Notice was issued to the Defendant. Despite service, none appeared for the Defendant nor filed the WS thus, he was proceeded ex-parte vide order dated 19.04.2017.
8. The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed through Authorised Signatory Mr. Sunil Suryavanshi.
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 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.
11. 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. 12,51,867/- (Rupees Twelve Lakhs Fifty One Thousand Eight Hundred Sixty Seven Only) with further interest @ 18% 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 and 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 : 29.11.2023
Presiding Officer, DRT-1, Mumbai.
Tjs/-