STATE BANK OF INDIA vs UMAKANT N MADKAIKAR on 29 November 2023

J U D G M E N T

1. The Original Application has been filed by the Applicant on 27.03.2012 against the Defendants before the Ld. DRT-III, Mumbai, which stands transferred to this Tribunal on 23.12.2016 as per Govt. Notification dated 26.09.2016 and registered as TA No.1225/2016. The OA has been filed for recovery of the aggregate sum of Rs.10,78,469/- (Rupees Ten Lakh Seventy Eight Thousand Four Hundred Sixty Nine only) with further interest @9% p.a. with monthly rests and penal interest @2% p.a. from 26.03.2012 till its realization.

2. Facts as succinctly set out in the OA are that the Defendant No.1 is the principal borrower, Defendant No.2 is the Guarantor and Defendant No.3 is the beneficiary in respect of the loan availed by the Defendant No.1. In or around July, 2010, the Defendant No.1 approached the Applicant for sanction for loan for purchase of property being Plot No.15, admeasuring an area of 925 sq. mtrs. part and parcel of plot under Survey No.58/4 of Village Deao, Tal. & Sub- District Quepem, District South Goa, State of Goa (“subject property”) for constructing a house thereon. The said request was considered by the Applicant and vide Arrangement Letter dated 02.08.2010 sanctioned the Term Loan of Rs.12 lakh for purchase of the said property. The Defendant No.1 agreed to repay the said loan in 180 EMIs with interest at the rate of 8% p.a. during the first year, 9% p.a. during the next 2 year and thereafter at the rate of 9.25% p.a. to the Applicant Bank.

3. In consideration of the said sanction, the Defendant No.1 executed the various loaning and security documents on 02.08.2010 such as Memorandum of Loan Agreement for SBI Easy/Advantage Home Loan; Consent Clause by Defendant No.1 & 2 respectively; Undertaking for individual loan; Agreement to Mortgage; Guarantee Agreement by Defendant No.2.

4. It is further stated that the Defendant No.1 had represented to the Applicant Bank that the Defendant No.1 was in the process of buying the subject property from one Mrs. Antonia D’Souza for a consideration of Rs.20,00,000/- out of which, the Defendant No.1 had paid Rs.8,00,000/- as advance. The Defendant No.1 also represented to the Applicant that he required the Term Loan of Rs.12,00,000/- for payment of remainder of the sale consideration in respect of the subject property to Mrs. Antonia D’Souza. The Defendant No.1 also represented to the Applicant Bank that the subject property was being purchased for construction of a house thereon and therefore the Defendant No.1 duly executed an Undertaking in favour of the Applicant therein undertaken that he will construct a house on the subject property within 2 years from the date of availment of the Term Loan. The Defendant No.1 also represented that Mrs. Antonia D’Souza proposed to execute the Deed of Sale in respect of the subject property through her Constituted Attorney viz. Defendant No.3 and that the Defendant No.3 was duly authorized by Mrs. Antonia D’Souza to receive the sale consideration in respect of the subject property.

5. It is further stated that based on the above representation, the Applicant Bank sanctioned in favour of the Defendant No.1, the Term Loan of Rs.12 lakh. The same was disbursed by debiting the Term Loan Account No.31302878007 of Defendant No.1 with the Applicant Bank and by crediting the Account No.31143453050 of Defendant No.3 as maintained with the Applicant Bank.

6. It is further stated that to secure the said Term Loan Defendant No.1 on 09.12.2010 attended the office of the Applicant Bank and deposited the Title Deeds in respect of the subject property with an intention to create an equitable mortgage charge on the subject property in favour of the Applicant Bank. The Defendant No.1 & 2 confirmed the creation of equitable mortgage by Bank Confirmation Letter dated 10.12.2010.

7. It is further stated that after availing the credit facility, the Defendant No.1 and 2 failed to adhere the financial discipline and make the payment of the outstanding dues.

8. It is further stated that the applicant came to know about in or around April 2010 that Mrs Antonia D’Souza who was the Vendor in respect of the property in question was expired in the year 1998

and it was apparent that the Defendant Nos. 1 to 3 had colluded to represent to the Applicant Bank the sale of subject property by Mrs. Antonia D’Souza to the Defendant No.1 on the basis of a made up General Power of Attorney dated 25.01.2009 allegedly executed by Mrs. Antonia D’Souza in favour of the Defendant No.3 and upon noticing these fact, the Applicant Bank immediately filed a complaint dated 27.04.2011 with the Superintendent of Police, CBI, Bambolim at Goa against the Defendants.

9. It is also stated that the Defendant No.3 received the proceeds of the loan sanctioned in favour of the Defendant No.1, to which proceeds that he was not legally entitled to. Since, the Applicant paid the proceeds of the above referred Term loan to the Defendant No.3 believing that the Defendant No.3 as Constituted Attorney of Mrs. Antonia D’Souza was entitled to receive the amounts towards sale consideration in respect of the subject property and therefore the Defendant No.3 is liable to repay the same to the Applicant Bank along with interest, costs, charges, expenses etc. jointly and severally alongwith the Defendant Nos.1 and 2.

10. It is also stated that in view of the failure on part of the Defendants to respond favourably by regularizing the accounts despite repeated requests, the Bank sent Legal Notice dated 25.11.2011, called upon the Defendants to pay the outstanding dues along with interest and other cost, charges, expenses. However, despite receipt of the said legal notice the Defendants failed and neglected to repay the outstanding amount thus the Applicant was compelled to file present O.A./T.A.

11. Notices were issued to the Defendants. After transfer the matter to this Tribunal, the Transfer Notices were duly served upon the Defendants however, despite service of the transfer notices, none appeared on behalf of the Defendants, thus, they were proceeded ex-parte vide order dated 15.05.2018.

12. The Applicant Bank has filed its evidence by way of affidavit of Mr. Vishnu Tanji Sawant, Branch Manager of the Applicant Bank who has proved the loaning and security documents such as Exhibit A-1 to Exhibit A-11.

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

14. The witness of the Applicant has fully corroborated the averments made in the OA/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 and the Applicant has proved its case beyond reasonable doubt. The liability of the defendant No.1 & 2 is joint and several. The liability of Defendant Nos.3(a) to (c) are upto the extent of estate inherited by them from the Deceased Defendant No.3.

15. In the light of above discussions, the Original Application deserves to be allowed against the Defendant No.1, 2 and Defendant Nos. 3(a) to 3(c).

O R D E R

(i) The present O.A. is hereby allowed and Defendant No.1, 2 and Defendant Nos. 3(a) to 3(c) are hereby directed to pay to the Applicant Bank, within a period of 60 days, a sum of Rs.10,78,469/- (Rupees Ten Lakh Seventy Eight Thousand Four Hundred Sixty Nine only) with further interest @9% p.a. with monthly rests and penal interest @2% p.a. from the date of filing of the present OA till its realization. It is made clear that the liability of Defendant Nos. 3(a) to 3(c) are upto the extent of estate inherited by them from the deceased Defendant No.3.

(ii) Failing which the aforesaid amount shall be recovered from the sale of the mortgaged property 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: 29.11.2023 Presiding Officer,

DRT-1, Mumbai sc