BANK OF BARODA (DENA BANK) vs SHARAD UTTAM JAMDHADE on 1 January 2024

**JUDGMENT**

1. 1. The case of the Applicant Bank is that the Defendant No.1 and 2 approached the Applicant Bank for grant of Term Loan of Rs.7,46,322/- and Crop Loan for Rs.2,34,000/-

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aggregating to Rs.9,80,322/- . The Loan was sanctioned vide Sanction Letter dt.16.09.2005 Exh.18.

1. 2. To secure the above Term Loan of Rs.7,46,322/- and Crop Loan for Rs.2,34,000/-, the Defendant No.1 and 2 executed Demand Promissory Note dt.16.09.2005 Exh.19, Hypothecation Agreement for Agricultural Loan dt.16.09.2005 Exh.20, Letter of General Lien and Set Off dt.16.09.2005 Exh.22 and Letter of Continuity dt.16.09.2005 Exh.25. The Defendant No.3 and 4 stood Guarantors and executed Letter of Guarantee dt.16.09.2005 Exh.21 and Letter of General Lien and Set Off dt.16.09.2005 Exh.23.

2. 3. The Defendant No.1 and 2 also executed Declaration dt.18.08.2005 Exh.24, whereby, they mortgaged the property i.e. All that piece and parcel of land bearing Survey No.nil, pt hissa no.221, area-0.71 and survey no.224 pt hissa no.0.50 situated at Village-Tisgaon, Taluka-Dindori, Dist.Nashik with the Applicant Bank.

3. 4. The Defendant No.1 and 2 also executed Acknowledgement of Debt and Security dt.12.10.2010 and dt.18.03.2013 Exh.26.

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1. 5. The Defendants again approached the Applicant Bank for restructuring of credit facilities and entered into Agreements for restructuring of credit Facilities dt.12.10.2010 Exh.27 and dt.28.06.2012 Exh.28.

2. 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.

3. 7. The Legal Notice was issued to Defendants through the Advocate of the Applicant Bank on 05.08.2014 Exh.29 calling upon Defendants to pay and clear the dues of the Applicant Bank under the said loan but to no effect, hence, this Original Application for recovery of Rs.15,14,482/- alongwith interest at the rate of 13.75% p.a. has been filed.

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

5. 9. During the pendency of this Original Application, Mr. Vimalbai Vasant Bhalerao and Mr. Amol Vasant Bhalerao

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have been brought on record as legal heir of Late Mr. Vasant Baban Bhalerao as Defendant No. 3a and 3b.

1. 10. To prove his case, the Applicant Bank has filed Claim Affidavit of Mr. Ratnakar Mishra, 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.

2. 11. The Applicant Bank has placed on record Statement of Account Mark "A" which corroborates the version of Mr. Ratnakar Mishra, Chief Manager of Applicant Bank.

3. 12. 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.

4. 13. In view of evidence brought on record, this Tribunal finds that the Defendant No.1 and 2 availed the loan and they hypothecated agricultural implements and mortgaged the property i.e. All that piece and parcel of land bearing Survey No.nil, pt hissa no.221, area-0.71 and survey no.224 pt hissa no.0.50 situated at Village-Tisgaon, Taluka-Dindori, Dist.Nashik with the Applicant Bank and Defendant No.3 and 4 stood Guarantors but the Defendant

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No.1 to 4 failed to repay the outstanding loan amount despite repeated requests and Legal Notice dt.05.08.2014 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.15,14,482/- alongwith further interest at the rate of 13.75% p.a. from the date of filing of application till payment and/or realization. Defendant No.1, 2, 3a, 3b and 4 are held jointly and severally liable to pay outstanding dues of Rs.15,14,482/- alongwith interest pendente lite and future interest at rate of 13.75% p.a. Thus, Applicant Bank has been able to prove his case by preponderance of probabilities. Transfer Original Application No.1403 of 2016 is allowed accordingly.

14. 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 6Jhuran is of the opinion that the ends of justice would meet if the Applicant Bank is awarded interest pendente lite and future interest at the rate of 13.75% p.a. 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, 2, 3a, 3b and 4 are held jointly and severally liable to pay to the Applicant Bank within two months a sum of Rs.15,14,482/- together with interest pendente lite and future interest @13.75% per annum 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 hypothecated agricultural implements and mortgaged property i.e. All that piece and parcel of land bearing Survey No.nil, pt hissa no.221, area-0.71 and survey no.224 pt hissa no.0.50 situated at Village-Tisgaon, Taluka-Dindori, Dist.Nashik and in case of shortfall, the same shall be recovered from the sale of the movable and immovable properties of the Defendant No.1, 2

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and 4 and from the sale of moveable and immoveable properties of Defendant No.3a and 3b inherited by them from Defendant No.3 since deceased.

1. 15. Defendant No.1, 2 and 4 are directed to declare, on oath, to the Recovery Officer, Debts Recovery Tribunal - III, Mumbai, both moveable and immoveable assets of them for the purpose of attachment and sale for realizing the shortfall. Also, Defendant No. 3a and 3b shall disclose to Recovery Officer the properties inherited by them from Defendant No.3 since deceased.

2. 16. 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 04.03.2024 before Learned R.O., DRT - III, Vashi, Navi Mumbai.

3. 17. The Defendant No.1 to 4 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.

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18. 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 : 01.01.2024.

Dictated on 01.01.2024.

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

Typed By - Mrs. Monika Pawar, Stenographer.