Phoenix ARC Private Limited vs ABR CARRIERS PVT LTD on 22 March 2019

JUDGMENT

1. This is an application under sub-section (1) of section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (“The 1993 Act” for short) for the recovery of the dues in the sum of Rs.13,60,168/- together with future interest thereon from the date of filing of the Original Application till repayment/realization. The factual matrix of the case is as under:-

2. Defendant no.1 is a company incorporated under the provisions of the Companies Act, 1956 having its registered address mentioned in the cause title of the original

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application. Defendant nos.2 and 3 are sued in their capacity as Directors of defendant no.1.

3. Defendant no.1 carries on the business of goods transport services (Road).

4. In February/March, 2010 defendant no.1 approached the Barclays Bank Plc by way of term loan.

5. Barclays Bank Plc sanctioned the term loan in the sum of Rs.11,35,691/-. Defendant no.1 signed and executed the demand promissory note in favour of Barclays Bank Plc on 4th March, 2010.

6. After availing the term loan, defendant no.1 did not adhere to the terms of sanction and contract.

7. As on 5th August, 2011 there was owing, due and payable by defendant nos.1 to 3 to the applicant the sum of Rs.9,33,369/-. Defendant no.1 agreed to pay interest @17% per annum.

8. The applicant is a securitization company constituted under Section 3 of the SARFAESI Act. The applicant is an assignee of Barclays Bank Plc. On 6th November, 2012 Barclays Bank Plc assigned the entire dues of debt/loan receivable from defendant nos.1 to 3 to the applicant under the assignment

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agreement dated 6th March, 2012.

9. After the deed of assignment, the applicant made follow up with defendant nos.1 to 3. On 6th June, 2013 the applicant issued notice through its Advocate under Section 433 and 434 of the Companies Act, 1956 calling upon defendant nos.1 to 3 to liquidate the entire principal outstanding amount in the sum of Rs.9,33,369/- with interest @17% per annum.

10. Thereafter, the applicant through their Advocate’s notice dated 18th July, 2013 once again called upon defendant nos.1 to 3 to liquidate the entire outstanding as stated therein.

11. At the foot of the account, there was owing, due and payable by defendant nos.1 to 3 to the applicant the aggregate sum of Rs.13,60,168/-. The applicant has produced the account maintained by Barclays Bank Plc in its ordinary and regular course of business in the name of defendant nos.1 to 3.

12. Defendant nos.1 to 3 were duly served with the summons who were set ex-parte on 23rd March, 2015.

13. The applicant has filed the evidence affidavit (Exhibit-8) of Shri Sunil Suryavanshi and list of documents (Exhibit-9) thereby adducing in evidence the documents at sr.nos.AW-01

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to AW-08 which are admitted in evidence, read, recorded and exhibited.

14. I have scrutinized and examined the allegations contained in the Original Application and analyzed the evidence adduced by the applicant which has gone unchallenged, uncontroverted and unrebutted.

15. Mr. Deshpande submits that the applicant does not press into service the orders and relief against defendant nos.2 and 3 and therefore, the original application against defendant nos.2 and 3 is liable to be dismissed.

16. Mr. Deshpande further submits that the pendent lite and future interest @9% per annum from the date of filing of the original application i.e. 2nd August, 2013 till payment/ realization be granted. The submission made by Mr.Deshpande is fair and reasonable. I therefore, grant pendent lite and future interest @9% per annum from the date of filing of the original application till payment/realization.

17. Upon careful scrutiny and the examination of the Original Application, analyzing the evidence and giving due

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weightage to the documentary evidence adduced by the applicant, I am of the view that there is no reason to disbelieve the claim made by the applicant bank.

18. In view of the observations hereinabove, the Original Application filed by the applicant deserves to be granted. Hence, I pass the following order:

ORDER

(A) Original Application No.813/2016 is allowed with cost against defendant no.1. (B) Original Application No.813/2016 is dismissed against defendant nos.2 and 3 with no order as to cost. (C) Defendant no.1 is ordered and directed to pay to the applicant the aggregate sum of Rs.13,60,168/- (Rupees thirteen lakhs sixty thousand one hundred and sixty-eight only) with pendent lite and future interest @9% p.a. from the date of filing of the original application i.e. 2nd August, 2013 till payment/realization.

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(D) Issue Recovery Certificate. (E) The Registrar is directed to send the copy of Judgement and Recovery Certificate to the applicant and defendants.

Sd/- (Deepak M Thakkar) I/c. Presiding Officer Debts Recovery Tribunal-1, Mumbai

Case type Original Application Case No.

Case year

Case Value (Rs.) 13,60,168 Total no. of applicants

Total no. of defendants

Name of all the applicants Phoenix Asset Reconstruction Company Private Limited Name of all the defendants

1. ABR Carriers Pvt. Ltd.

2. Ajay Agarwal

3. Sanjay Agarwal Date of receipt/registration 07.04.2014 Date of first hearing 28.04.2014 Date of last hearing/judgement /Reserve for orders 22.03.2019 Total no.of hearings

Judgement pronounce date 22.03.2019 Advocates for the applicant Mr. Vinay Deshpande i/b V. Deshpande & Co.

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Advocate for the defendant None District Mumbai

Judgment typed on : 22.03.2019 Judgment finalized on: Judgment uploaded on: