BANK OF BARODA vs HIRAMAN PARBAT KALOGE on 8 January 2024

**JUDGMENT**

1. 1. The case of the Applicant Bank is that the Defendant No.1 and 2 approached the Applicant Bank vide loan Application dt.15.11.2007 Exh.10 for grant of Term Loan of Rs.8,52,000/- and DKCC Facility of Rs.7,85,000/-. The loan was sanctioned vide Sanction Letter dt.21.11.2007 Exh.11.

2. 2. To secure the above Term Loan of Rs.8,52,000/- and DKCC Facility of Rs.7,85,000/-, the Defendant No.1 and 2 executed Hypothecation Agreement for Agricultural Loan dt.21.11.2007 Exh.12, Demand Promissory Note dt.21.11.2007 Exh.13, Letter of General Lien and Set Off dt.21.11.2007 Exh.14 and Letter of Continuity dt.21.11.2007 Exh.15. The Defendant No.3 stood Guarantor and executed

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Letter of Guarantee dt.21.11.2007 Exh.16 and General Letter of Lien and Set Off dt.21.11.2007 Exh.17.

1. 3. Also, to secure above credit facilities, the Defendant No.1 and 2 executed Mortgage Deed dt.13.11.2007 Exh.19, whereby, they mortgaged the property i.e. All that piece and parcel of land bearing Survey No.137 situated at Village Parmori, Taluka Dindori, District Nashik with the Applicant Bank.

2. 4. The Defendant No.1 and 2 again requested the Applicant Bank for Restructuring/Rephasing the amounts then outstanding under the said Term Loan and DKCC Facility by making the said amount repayable in 5/5 yearly installments of Rs.1,37,178/- and Rs.9,16,651/- respectively plus interest. The request of Defendant No.1 was granted by the Applicant Bank vide Rephase Sanction Letter dt.18.03.2010 Exh.20 and to secure the restructuring, the Defendant No.1 and 2 executed Agreement for Restructure of Credit Facilities dt.18.03.2010 alongwith Demand Promissory Note dt.25.03.2010 Exh.21.

3. 5. The Defendant No.1 and 2 also executed Letter of Acknowledgement of Debts and Securities dt.25.01.2013 Exh.22.

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1. 6. The Applicant Bank has further submitted that the Defendants committed breach of terms and conditions of sanction and security documents and failed to maintain financial discipline of the Bank.

2. 7. Recall notice was issued through the advocate of the Bank to the Defendants on 15.12.2014 Exh.23 calling upon Defendants to pay and clear the dues of the Applicant Bank under the said loans but to no effect, hence, this Original Application for recovery of Rs.36,84,766/- alongwith interest has been filed.

3. 8. The notice of this Original Application was issued to Defendants but they failed to appear despite service and hence, they were proceeded against ex-parte.

4. 9. To prove his case, the Applicant Bank has filed Claim Affidavit of Mr. Jaswanthlal P. Suthar, Chief Manager of Applicant Bank and he has supported the case of the Applicant Bank in all material particulars and he has also proved the documents executed between the parties.

5. 10. The Applicant Bank has placed on record Statements of Account Exh.24, Exh.25 and Exh.26 which corroborates the version of Mr. Jaswanthlal P. Suthar of Applicant Bank.

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11. The evidence so brought on record by the Applicant Bank goes un-rebutted, unchallenged and unopposed and there is no reason to disbelieve the version of Applicant Bank.

12. In view of evidence brought on record, this Tribunal finds that the Defendant No.1 and 2 availed the loan and they mortgaged the property i.e. All that piece and parcel of land bearing Survey No.137 situated at Village Parmori, Taluka Dindori, District Nashik with the Applicant Bank and Defendant No.3 stood Guarantor but Defendant No.1 to 3 failed to repay the outstanding loan amount despite repeated requests and Recall Notice dt.15.12.2014 was sent by the Bank through Advocate but still the Defendants failed to repay the outstanding loan amount. Hence, Applicant Bank is entitled to recover Rs.36,84,766/- alongwith further interest from the date of filing of application till realization. Defendant No.1 to 3 are held jointly and severally liable to pay this amount of Rs.15,74,248/- alongwith interest pendentelite and future interest at rate of 11.25% p.a. under Term Loan, Rs.13,38,964/- alongwith interest pendentelite and future interest at rate of 10.75% p.a. under DKCC Facility and Rs.7,71,554/- alongwith interest pendentelite and future interest at rate of 12.50% p.a. under

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Rephased/Restructured account. Thus, Applicant Bank has been able to prove his case by preponderance of probabilities. Transfer Original Application No.1377 of 2016 is allowed accordingly.

13. As per the provision of Section 19(20) of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 which is analogous to Section 34 of CPC, on filing of the suit/claim, the contract between the parties comes to an end and the Court/Tribunal has a discretion to award interest depending upon the circumstances of each case. Same principle has been laid down by the Hon'ble Apex Court in the case of Central Bank of India Vs. Ravindra & Others Taking Stock of all the circumstances, this Tribunal is of the opinion that the ends of justice would meet if the Applicant Bank is awarded interest pendentelite and future interest at the rate of 11.25% p.a., 10.75% p.a. and 12.50% p.a. under Term Loan, DKCC Facility and Rephesed/Restructured account respectively from the date of filing of Original Application till final recovery is made from Defendants.

ORDER

O.A. stands allowed with cost and the Defendant No.1 to 3 are held jointly and

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severally liable to pay to the Applicant Bank within two months a sum of Rs.15,74,248/- together with interest pendente lite and future interest @11.25% per annum under Term Loan, Rs.13,38,964/- together with interest pendente lite and future interest @10.75% per annum under DKCC Facility and Rs.7,71,554/- together with interest pendente lite and future interest @12.50% per annum under Rephased/Restructured account from the date of filing of this O.A. till the date of realization; failing which the aforesaid amount shall be recovered from the sale of mortgaged property i.e. All that piece and parcel of land bearing Survey No.137 situated at Village Parmori, Taluka Dindori, District Nashik and in case of shortfall, the same shall be recovered from the sale of the movable and immovable properties of the Defendants.

14. Defendant No.1 to 3 are directed to declare, on oath, to the Recovery Officer, Debts Recovery Tribunal - III, Mumbai, both moveable and immovable assets of them for the purpose of attachment and sale for realizing the shortfall.

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15. Let a Recovery Certificate be issued with memo of cost immediately u/s 19(22) of The Recovery of Debts and Bankruptcy Act, 1993 together with the details of the properties, if any, by fixing 06.03.2024 before Learned R.O., DRT - III, Vashi, Navi Mumbai.

16. The Defendant No.1 to 3 are restrained from depleting, transferring, encumbering, alienating or in any way dealing with their properties/assets without first paying the claim of the Applicant Bank.

17. Copies of this judgment be sent to the parties free of cost and file be consigned to record room.

Give under my hand and the seal of this Tribunal on this date : 08.01.2024.

Dictated on 08.01.2024.

(ARUN KUMAR SINGAL) PRESIDING OFFICER DRT-III, VASHI, NAVI MUMBAI

Typed By - Mrs. Monika Pawar, Stenographer.

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