BOMBAY MERCANTILE CO- OPERATIVE BANK LIMITED vs MS TOPWAY MULTITRADE on 20 October 2023

J U D G M E N T

1. The Original Application has been filed by the Applicant against the Defendants for recovery of following amounts: i. Rs. 5,78,67,156/- (Rupees Five Crore Seventy Eight Lakh Sixty Seven Thousand One Hundred Fifty Six Only) with further interest thereon at the rate of 16 % p.a. from the date of filing of the present OA till payment and or realization. ii. Rs. 5,35,05,824/- (Rupees Five Crore Thirty Five Lakh Five Thousand Eight Hundred Twenty Four Only) with further interest thereon at the rate of 16% p.a. from the date of filing of the present OA till payment and or realization.

2. Facts as succinctly set out in the present OA are that the Defendant No. 1 is a partnership firm and Defendant No. 2 & 3 are the partners of the Defendant No. 1 partnership. Defendant No. 2 to 5 are the Guarantors.

3. It is stated that Defendant No. 1 made a request in the month of June-July 2012, the Applicant sanctioned term loan against the mortgage of property facility of Rs. 390 Lakh vide sanction letter dated 05.07.2012.

4. In consideration of sanction of the aforesaid facility, Defendants executed following loaning and security documents in favour of the Applicant on 09.07.2012: i. Demand Promissory Note executed by Defendant No. 1. ii. Demand Promissory Note executed by Defendant No. 2 to

5. iii. Agreement for loan iv. Letter of Guarantee executed by Defendant No. 2 to 5.

5. In order to secure the aforesaid facility, Defendant No. 4 & 5 have inter alia, deposited the original title deeds with an intent to create mortgage in respect of the immovable property being Shop No. 148 (admeasuring 8300 sq. ft.) on the 2nd Floor, at City Centre Mall, Palm Beach Road, Plot No. 18, Sector 19- D, Vashi, Navi Mumbai- 400 703.

6. It is further stated that at the request of Defendant No. 1 made in the month of June-July 2012, the Applicant sanctioned Term Loan facility (Business Loan) of Rs. 360 Lakh vide sanction letter dated 19.01.2012.

7. In consideration of sanction of aforesaid facility, Defendants executed following loaning and security documents on 20.07.2012: i. Demand Promissory Note executed by Defendant no. 1.

ii. Demand Promissory Note executed by Defendant No. 2 to

5. iii. Agreement for loan iv. Letter of Guarantee v. Letter of Set Off

8. In order to further secure the aforesaid facility, Defendant No. 4 & 5 extended the mortgage in respect of the Shop No 148 created on 09.07.2012.

9. However, after availing aforesaid facilities, Defendants committed default in repaying the outstanding dues under the Term Loan facilities, thus, thus the accounts of Defendant No. 1 became NPA on. Thereafter, the Applicant have issued advanced recall notice dated 27.04.2015 and inter alia invoked the provisions of SARFAESI Act and issued Demand Notice dated 26.05.2015 under section 13 (2) of the SARFAESI Act, 2002 and called upon the Defendants to pay the outstanding dues, thus the present OA has been filed.

10. During the pendency of the OA, the Bombay Mercantile Co- Operative Bank Limited, the Original Applicant Bank vide registered Deed of Assignment dated 31.03.2017 executed between the Original Applicant Bank as the Assignor and the Applicant- Invent Assets Securitisation & Reconstruction Pvt. Ltd. as the Assignee. The Original Applicant has assigned all the rights, title, interest, benefit in respect of the debts of the Defendants together with underlying securities therein favour of the Applicant.

11. Notices were issued to the Defendants. Dependants put their appearance through however, no WS has been filed by the Defendants.

12. The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed through Branch Manager Amera Mirza.

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

14. The witness of the Applicant Bank has fully corroborated the averments made in the OA, 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.

15. In the light of above discussions, the Original Application filed by the Applicant Bank deserves to be allowed against the Defendant No. 1 to 5.

O R D E R

(i) I allow the present O.A. and direct the Defendant No. 1 to 5 to pay to the Applicant, jointly and severally within a period of 60 days, a sum of following amounts:

a. Rs. 5,78,67,156/- (Rupees Five Crore Seventy Eight Lakh Sixty Seven Thousand One Hundred Fifty Six Only) with further interest thereon at the rate of 16 %

p.a. from the date of filing of the present OA till payment and or realization.

b. Rs. 5,35,05,824/- (Rupees Five Crore Thirty Five Lakh Five Thousand Eight Hundred Twenty Four Only) with further interest thereon at the rate of 16% p.a. from the date of filing of the present OA till payment and or realization. Aggregating to Rs. 11,13,72,980/- (Rupees Eleven Crore Thirteen Lakh Seventy Two Thousand Nine Hundred Eighty Only) with interest mentioned herein above.

(ii) Failing which the aforesaid amount shall be recovered from the sale mortgaged property as well as 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.

(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 : 20.10.2023

Presiding Officer, DRT-1, Mumbai.

Tjs/-