Phoenix ARC Private Limited vs ANIL VERGHESE on 7 July 2026

J U D G M E N T

This is an application under Section 19(1) of the Recovery of the Debts due to Banks and Financial Institutions Act, 1993 renamed as Recovery of the Debt and Bankruptcy Act, 1993 (for short, ‘the

Act’) to recover ₹14,73,470/- (Rupees Fourteen Lakhs Seventy-Three Thousand Four Hundred Seventy only) along with further interest @ 19% per annum from the date of filing of the Transferred Original Application i.e. 22.07.2014 till payment/realization.

The details of the claim amount are as under: - Sr No Nat ure o f Facil ity Tota l out stand ing as on 05. 02. 201 0

I nteres t @ 1 9% from 05.0 2.2 010 t ill 17.0 7.2 014 Tota l C lai m w i th fu r ther inte res t @ 19 % p er annum f rom the d a te of fil ing of the Tran sfe rred Or igin al Ap p lica t ion t ill p ayment and or reali za ti on.

Term L oan

₹ 8,18, 420 .00 /- ₹ 6,55, 050 .00 /- ₹ 14,73 ,47 0.0 0/ -

It is undisputed fact in the matter that the Defendant no.1 was duly served with the transferred notice vide order-sheet dated

16.05.2018. Despite service, the defendant did not enter his appearance and therefore, he was set ex- parte on 03.02.2016.

Defendant no.1, a sole proprietor of M/s. Star Motors, is the borrower who approached the Barclays Bank Plc seeking financial assistance by way of Business Loan Facility (Term Loan). Pursuant to the Business Instalment loan application form made by defendant, the Applicant sanctioned the loan vide Acknowledgment Form in sum of ₹10,00,000/- (Rupees Ten Lakhs Only) payable in 36 EMIs of ₹36,660/- (Rupees Thirty-Six Thousand Six Hundred Sixty Only) with interest at the rate of 19.007% per annum. The 1st instalment was to be paid on 05.12.2007 and last instalment on 05. 12.2007. The Defendant has issued time to time its following Cheques towards the part payment of the amount due and payable under the aforesaid loan facility and thus, admitted and acknowledged its liability. The details of the cheque are as under: - Sr. No. Chequ e No.

Date

Amount

438522

05.02. 2010 ₹2,19, 960. 00/ -

438523

05.06. 2010 ₹2,19, 960. 00/ -

438524

05.02. 2011 ₹2,19, 960. 00/ -

438525

05.06. 2011 ₹2,19, 960. 00/ -

438526

05.02. 2012 ₹2,19, 960. 00/ -

438527

05.07. 2013 ₹2,19, 960. 00/ -

The Applicant Asset Reconstruction Company is an assignee of Barclays Bank vide Deed of Assignment dated 30.03.2011 wherein the Applicant has taken over the debt of the Defendant from the said Barclays Bank under the valid and subsisting Deed of Assignment. Thus, the Applicant is a lender as per Section 5(2) of the said Act and being a financial Institution as defined under Section 2(h) of the Recovery of Debts Due to Banks and Financial Institution Act, 1993.

On the dates given below, defendant signed and executed the loan and security documents as set out in paragraph nos. 5.9 (Page no.5) of the Transferred Original Application. Defendant issued cheques dated 05.02.2010, 05.06.2010, 05.02.2011, 05.06.2011, 05.02.2012 and 05.07.2012 for the same amount of ₹2,19,960/- (Rupees Two Lakhs Nineteen Thousand Nine Hundred Sixty Only) respectively to secure the loan.

The details of the documents executed by the Defendant are as under: - (a) Demand Promissory Note dated 31.10.2007 for the sum of ₹10,00,000/-;

(b) Deed of Assignment dated 30.03.2011;

(c) Copies of Cheques dated 05.02.2010,

05.06.2010, 05.02.2011, 05.06.2011, 05.02.2012 and 05.07.2013 for the same amount of ₹2,19,960/- (Rupees Two Lakhs Nineteen Thousand Nine Hundred Sixty Only) respectively.

After availing the loan, defendant did not adhere to the financial discipline and committed default in payment of instalments and repayment of the loan and accordingly the Applicant observed that the total loan due accumulated to ₹7,02,037/- (Rupees Seven Lakhs Two Thousand Thirty-Seven Only) being the principle as on 10.06.2010. Therefore, on 24.01.2014, the applicant, through its advocate, called upon defendant to liquidate the outstanding in the sum of ₹8,18,420/- (Rupees Eight Lakhs Eighteen Thousand Four Hundred Twenty Only) with further interest at the rate of 2% p.m. till payment and/or realization within 1 week from receipt of this notice. Despite notice, defendant no.1 failed and neglected to pay.

As on 22.07.2014, there was owing, due and payable by defendant to the applicant the aggregate sum of ₹14,73,470/- (Rupees Fourteen Lakhs Seventy-Three Thousand Four Hundred Seventy only) along with further interest @ 19% per annum. The applicant has maintained the loan ledger extract and the entries posted therein are made in the usual and ordinary course of the banking business.

Since, defendant failed and neglected to make the payment, the applicant was left with no other alternate but to file the Transferred Original Application which was presented on 22.07.2014.

The applicant has filed affidavit (exhibit-14) in lieu of examination in chief of Mr Sunil Suryavanshi, the Authorized Signatory of the Applicant Bank and list of documents (exhibit-15) thereby adducing in evidence the documents at Exhibit-A to Exhibit-H, which are admitted in evidence, read, recorded and exhibited.

Accordingly, in the Transferred Original Application was filed for the recovery of ₹14,73,470/- (Rupees Fourteen Lakhs Seventy- Three Thousand Four Hundred Seventy only) along with further interest @ 19% per annum from 18.07.2014 till the date of filing of the Transferred Original Application i.e. 22.07.2014 till payment/realisation.

The Tribunal has scrutinised and examined the allegations contained in the Transferred Original Application and analysed the evidence adduced by the applicant which has gone unchallenged, uncontroverted and unrebutted.

Upon careful scrutiny and the examination of the Transferred Original Application, analysing the evidence and giving due weightage to the documentary evidence adduced by the applicant, the Tribunal views that there is no reason to disbelieve the claim made by the applicant bank.

In view of the observations made hereinabove, Transferred Original Application filed by the applicant deserves to be allowed.

Hence, the following order:

ORDER

(A) The Transferred Original Application No.854 of 2017 in Original Application No.189 of 2015 is allowed with costs. (B) Defendant is hereby ordered and directed to pay to the applicant, the aggregate sum of ₹14,73,470/- (Rupees Fourteen Lakhs Seventy-Three Thousand Four Hundred Seventy only) alongwith future simple interest @ 12% per annum thereon from the date of presentation of the Transferred Original Application i.e. 22.07.2014 till payment/realization after adjusting the recoveries made by the Applicant under SARFAESI Act, 2002 or any other amount paid by the borrower after filing of this Transferred Original Application No.854 of 2017. (C) Defendant is hereby entitled to redeem the any property available as per law failing which the applicant has right to proceed to sell any property available of the defendant no.1 and recover dues as per law.

(D) Issue Recovery Certificate. (E) The learned Registrar is directed to send a copy of the judgment and recovery certificate to (i) the applicant, (ii) defendant and (iii) the Recovery Officer by post and email.

(Harish Kumar Kaushik) Presiding Officer, DRT-2, Mumbai