UNION BANK OF INDIA vs SALEH FAHAD on 30 November 2023

J U D G M E N T

1. The present OA has been filed by the original Applicant against the Defendants before the Ld. DRT-III, Mumbai, which stands transferred to this Tribunal as per Govt. Notification dated 26.09.2016 and registered as TA No. 582/2016. The OA/TA has been filed for recovery of Rs. 26,96,368/- (Rupees Twenty Six Lakhs Ninety Six Thousand Three Hundred Sixty Eight Only) with further interest and penal interest from 01.06.2014 till the date of payment.

2. Facts as succinctly set out in the O.A./T.A are that the Defendant No.1 is the Principal borrower, Defendant No. 2 is the father of Defendant No. 1 & 3 are the guarantors of the Defendant No. 1. Defendant No. 4 is the proprietor of M/s. Dimension Automotive & Defendant No. 5 is the mother of Defendant No. 1.

3. It is stated that on or around 20.06.2013, the Defendant No. 1 approached the Applicant bank and requested for a car loan of Rs. 25 Lakhs for purchase of the new four wheeler, Audi A6 TDI Mode under Union Miles Scheme. It was presented to the Applicant that the cost of the car was Rs. 49,57,789/- based on the purported quotation given by M/s Dimension Automotive.

4. It is stated that it was represented to the Applicant by Defendant No. 1 that he is in an executive position of a company called M/s. Lark Pharma Private Limited and that he was planning to pay an Audi A6 of approximately Rs. 49,57,786/- from the Dealer M/s. Dimension Automotive. It was subsequently found that Defendant No. 4 who claimed to be the proprietor of M/s. Dimension Automotive is one of the Directors of M/s. Lark Pharma Pvt. Ltd having DIN No.01430852 along with Defendant No. 1 who has DIN No. 01430879. The Defendant No. 1 showed his salary slips and the appointment letter which substantiated his credential as General Manager of the Company which subsequently were found to be concocted and fabricated documents.

5. In consideration of sanction the said car loan, the Defendant No. 1 executed the following loaning and security documents:

a. Filled in application form along with photographs of Defendant No. 1.

b. Income tax return

c. Pan card

d. Appointment letter from M/s. Lark Pharma Pvt. Ltd.

e. Salary Slips

f. ICICI Bank, Bandra Branch account statements

g. MTNL Bill

h. Quotation from Dimension Automotive for Audi for Rs. 49,57,789.- approx.

6. It is further stated that the officer of the Applicant visited the house of the Defendant No. 1 on 26.06.2013. As per the society’s name board the name of the Defendant No. 1 & 2 was displayed. Thereafter, the officials of the Applicant visited the office of Defendant No. 1 where the company name was displayed on the 9th Floor the Platina Building. The Address of the office of the company was verified on the internet and also on the website of the company viz. www.larkpharma.com.

7. It is stated that after the aforesaid verification and consideration of the aforesaid documents, Applicant sanctioned the car loan of Rs. 25

Lakhs on 29.06.2013. The said loan was disbursed and the Defendant No. 1 made the payment of first installment of Rs. 53,983/- on 01.08.2013 and second installment of Rs. 53,983/- on 31.08.2013.

8. It is stated that as per the requirement the Applicant followed up for the receipts of the payment made to M/s. Dimension Automotive and RTO & insurance paper with Defendant No. 1. Initially Defendant No. 1 attended the calls of the Applicant Bank in this regard, thereafter he stopped attending the phone calls made by the Applicant and the phone number was discontinued later.

9. It is stated that on 22.07.2013 & 28.07.2013 officers of the Applicant again visited the Defendant No. 1’s house and met Defendant No. 5 conveyed that Defendant No. 1 was not responding their calls and to inform Defendant No. 1 to contact the officers of the Applicant immediately. It is represented to the officers of the Applicant that Defendant No. 1 couldn’t answer the calls as there were some issues with his phone. The family members including the Defendant No. 5 informed the Applicant’s officers that Defendant No. 1 is on a visit to Pune and they have given the Applicant’s messages to him. Thereafter, the Applicant again tried to reach Defendant No. 1 to find the status of the delivery of vehicle along with the original payment receipts. Applicant did not get any response from Defendant No. 1 inspite of repeated follow ups so the Applicant instructed M/s. Dimension Automotive on 31.07.2013 to stop the delivery of the vehicle. The Applicant asked the Manager at M/s. Dimension Automotive to refund the loan amount of Rs. 25 Lakhs. However, the manger on some pretext or other evaded refund of funds which had been credit to M/s. Dimension Automotive’s bank account.

10. It is further stated that when Applicant’s officers visited the house of Defendant No. 1 on 24.08.2013 and there the name plate of the Flat

No. 301 was changed to Abdul H Dalvi (Defendant No. 2) and Asma Abdul H Dalvi (Defendant No. 5). Further on inquiring with the society it came to the Applicant’s knowledge that even as per the society understanding Defendant No. 1 was their son and the name on society board was changed without society’s knowledge.

11. It is stated that Applicant was suspecting foul play by Defendant No. 1, the Applicant officers visited the office of M/s. Dimension Automotive. However, they find/ found out that the office was shut. They further found out that it had been closed since 20.08.2013. Thereafter, the Applicant bank filed a police complaint and subsequently FIR was lodged dated 10.09.2013 in Santacruz police station against Defendant No. 1 and Mr. Bhavesh Shah (the manager of M/s. Dimension Automotive).

12. It is stated that Investigating agency during the course of investigation have traced the trail of monies that the pay order issued by the Applicant Bank was deposited in the account of Defendant No. 4 in Bank of India Bandra (W) branch on 05.07.2013. This amount was then transferred by Defendant No.4 to his account in Axis Bank Bandra (W) branch. On 08.07.2013 an amount of Rs. 17 Lakhs was transferred from Axis Bank to Defendant No. 1 account in ICICI Bank, Bandra (W) branch. Thereafter, Defendant No. 1 transferred an amount of Rs. 13.50 Lakhs from his ICICI Bank account to an account in Dena bank, Kurla branch belonging to Defendant No. 5. It is clear that the loan amount which has been disbursed has been fraudulently siphoned off and Rs. 13.50 Lakhs which is lying in Defendant No. 5 account is a part of the money which has ben disbursed by Applicant Bank as Car loan to Defendant No. 1. The investigating official have frozen the account of Defendant No. 5 on 04.01.2014.

13. However, after knowing the above mentioned fraud the account of Defendant No. 1 was declared as NPA on 30.09.2013. Thereafter, the Assignor Bank issued the recall notice dated 24.09.2013 & 17.10.2013 and called upon the Defendants to make the payment of the outstanding dues but they failed to pay the dues. Hence, the present OA has been filed.

14. Notices were issued to the Defendants. Despite service, no one appeared for the Defendants nor filed the WS thus, Defendant No. 1 was proceeded ex-parte vide order dated 26.08.2018, Defendant No. 3 & 4 were proceeded ex-parte vide order dated 11.04.2023, Defendant No. 5 was represented on 09.02.2023 thereafter none appeared for Defendant No. 5 and Defendant No. 2 was represented on 02.05.2018 thereafter, none appeared for the Defendant No. 2.

15. The Applicant Bank has filed and produced all the relevant documents and original documents alongwith their claim affidavit filed through their Assistant General Manager Mr. Prashant Tidke.

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

17. 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 5 is joint and several.

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

O R D E R

(i) The present O.A. is hereby allowed and Defendants are hereby directed to pay to the Applicant Bank, jointly and severally, within a period of 60 days, the sums of Rs. 26,96,368/- (Rupees Twenty Six Lakhs Ninety Six Thousand Three Hundred Sixty Eight Only) with further interest and penal interest from 01.06.2014 till the date of payment.

(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 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 : 30.11.2023

Presiding Officer,

DRT-1, Mumbai

Tjs/-