BANK OF INDIA vs SUNIL JEWELLERS on 5 October 2023

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 1993 Act’) to recover Rs.98,33,128.36/- with future interest thereon from the date of presentation of the Original Application till payment/realization and to enforce the mortgage and hypothecated securities.

The 1st defendant is the principal borrower who carries on the business in the proprietary concern in the name and style of M/s. Sunil Jewellers & Ors. Defendants 2 to 4 are the guarantors, defendants 3 and 4 are sued in their capacity as mortgagor also.

The 1st defendant approached the applicant in March 2011 to grant credit facilities for wholesale and retail gold jewellery business. The applicant sanctioned the cash credit facilities in the sum of Rs.75 lakhs. The 1st defendants signed and executed the loan and security documents. Defendants to executed the guarantee agreement dated 14th June 2011 guaranteeing the repayment of the loan in case of default committed by the 1st defendants. The 3rd and the 4th defendant created mortgage by depositing the original title deeds relating to flat no.19, 3rd floor, Vishwageet Premises CHS Ltd., Four Bungalows, Andheri (West), Mumbai 400 053 to secured credit facilities. It is the applicant’s case that flat no.19 is a common security granted to Synergy Mining Corporation in the Original Application No.874 of 2017 (Original Application No.402 of 2014) where the defendants 3 and 4 in the present Original Application are defendants 2 and 3 in that case.

The 1st defendant committed default and therefore, the applicant classified the account as NPA on 1st March 2014.

As of 8th June 2014, there was owing, due and payable by defendants to the applicant the aggregate sum of Rs.98,33,128.36. 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 defendants failed and neglected to make the payment, the applicant was left with no other alternate but to file the Original Application which was presented on 9th June 2014.

Order-sheet dated 8th July 2015 reveals that the service of summons upon defendants is complete. The transfer notice was also duly served upon the defendants.

The applicant has filed affidavit (exhibit-24) in lieu of examination in chief of Mr Bibhanshu Kumar Roy and list of documents (exhibit-25) thereby adducing in evidence the documents at AW-1 to AW-21, which are admitted in evidence, read, recorded and exhibited.

Mr Shinde submits that the applicant does not press into service of relief in terms of VI(d) concerning the hypothecated security and therefore, the question of passing any order does not arise.

Mr Shinde submits that the Recovery Certificate be issued for an amount in the sum of Rs. 98,33,128.36 with pendent lite and future interest at the rate of 13.5% per annum with monthly rest. The submission made by Mr Shinde is fair and reasonable. The Tribunal therefore, grant pendent lite and future interest at the rate of 13.5% per annum with monthly rest from the date of presentation of the Original Application, that is, 9th June 2014 till payment/realisation.

The applicant has established the case of mortgage creation which is the common security in the present case as well as in Original Application No.874 of 2014. The 3rd and 4th defendants are entitled to redeem the mortgage as per law. In case of default, the applicant shall become entitled to sell the mortgaged property as per law.

The Tribunal have scrutinised and examined the allegations contained in the 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 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, Original Application filed by the applicant deserves to be granted.

Hence, the following order:

ORDER

(A) The Original Application No.1003 of 2017 is allowed with costs. (B) Defendants are ordered and directed to pay to the applicant, either jointly or severally, the aggregate sum of Rs.98,33,128.36 with pendent lite and future interest at the rate of 13.5% per annum with monthly rest from the Original Application’s presentation date, that is, 9th June 2014 till payment/realization. (C) The aforesaid adjudicated amount is secured by the valid and subsisting mortgage of the immovable property, that is, flat no.19, 3rd floor, Vishwageet Premises CHS Ltd., Four Bungalows, Andheri (West), Mumbai 400 053. (D) Defendants 3 and 4 are entitled to redeem the mortgage as per law failing which the applicant has right to proceed to sell the mortgaged property as per law. (E) Issue Recovery Certificate. (F) The learned Registrar is directed to send a copy of the judgment and recovery certificate to the applicant and defendant by post and email.

Sd/- (Deepak M. Thakkar) Presiding Officer, DRT-2, Mumbai Nidhi