Debts Recovery Tribunals and Appellate Tribunals
BANK OF BARODA vs SUMANBAI BHASKAR GODASE on 11 June 2024
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JUDGMENT
IN TRANSFERRED ORIGINAL APPLICATION NO.1821 OF 2016 (Original Application No.532 of 2016) Dt.11<sup>th</sup> June 2024
**BEFORE THE DEBTS RECOVERY TRIBUNAL-III,** **VASHI, NAVI MUMBAI**
**PRESIDED OVER BY ARUN KUMAR SINGAL** **TRANSFERRED ORIGINAL APPLICATION NO.1821 OF 2016** **(Original Application No.532 of 2016)**
**Presented on : 04.12.2014**
**Registered on : 27.07.2016**
**Decided on : 11.06.2024**
**Bank of Baroda,**
A Bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its Branch Office at Bank of Baroda, Panchavati Branch, Tal. & Dist. Nasik 422 003.
**...APPLICANT**
**V/s.**
**1. Mrs. Sumanbai Bhaskar Godase,**
An adult, Indian Inhabitant, residing at Post: Umarale Khurd, Tal. Dindori, Dist. Nasik 422 202.
**2. Mrs. Ranjana Sudam Godase,**
An adult, Indian Inhabitant, residing at Post: Umarale Khurd, Tal. Dindori, Dist. Nasik 422 202.
**3. Mr. Bhaskar Ramchandra Godase,**
An adult, Indian Inhabitant, residing at Post: Umarale Khurd, Tal. Dindori, Dist. Nasik 422 202.
**4. Mr. Sudam Ramchandra Godase,**
An adult, Indian Inhabitant, residing at Post: Umarale Khurd, Tal. Dindori, Dist. Nasik 422 202.
**...DEFENDANTS**
**Argued By -**
Mr. Sagar Hate i/b M/s. S R Legal, Advocate for the Applicant Bank. Defendants ex-parte.
Arun
(JUDGMENT)
JUDGMENT
1. 1. 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 to recover Rs.25,89,843.34 with future interest thereon at the rate of 13.75% p.a. from the date of presentation of the Original Application till payment/realization.
2. 2. The case of the Applicant Bank is that Defendant No.1 approached the Applicant Bank vide Loan Application dt.24.06.2005 (Exhibit-12) for grant of Term Loan of Rs.5.20 Lakhs. The Applicant Bank sanctioned the Term Loan of Rs.5.20 Lakhs with interest @10% per annum.
3. 3. To secure the aforesaid Term Loan facility, Defendant No.1 executed security documents, i.e. Demand Promissory Note (Exhibit-13), Hypothecation Agreement (Exhibit-14), and General Letter of Lien and Set-off (Exhibit-15), all dt.08.07.2005. The Defendant Nos.2 and 3 executed Letter of Guarantee (Exhibit-16) and General Letter of Lien and Set-off (Exhibit-17), both dt.08.07.2005.
4. 4. The case of the Applicant Bank is that Defendant No.1 again approached the Applicant Bank vide Loan Application
11.06.2021
DRT-III MUMBAIT.O.A. NO.1821 OF 2016 (JUDGMENT)
dt.26.11.2005 (Exhibit-18) for grant of Term Loan of Rs.4.34 Lakhs. The Applicant Bank sanctioned the Term Loan of Rs.5.20 Lakhs with interest @8.75% per annum.
1. 5. To secure the aforesaid 2<sup>nd</sup> Term Loan facility, Defendant No.1 executed security documents, i.e. Demand Promissory Note (Exhibit-19), Hypothecation Agreement (Exhibit-20), General Letter of Lien and Set-off (Exhibit-21), and Letter of Continuity (Exhibit-24), all dt.06.12.2005. The Defendant Nos.2 and 4 executed Letter of Guarantee (Exhibit-22) and General Letter of Lien and Set-off (Exhibit-23), both dt.06.12.2005.
2. 6. The case of the Applicant Bank is that Defendant No.1 again approached the Applicant Bank vide Loan Application dt.26.05.2006 (Exhibit-25) for grant of DKCC Facility of Rs.3.51 Lakhs. The Applicant Bank sanctioned the DKCC Facility of Rs.3.51 Lakhs with interest @8.5% per annum.
3. 7. To secure the aforesaid DKCC Facility, Defendant No.1 executed security documents, i.e. Demand Promissory Note (Exhibit-26), Letter of Continuity (Exhibit-27), Hypothecation Agreement (Exhibit-28), General Letter of Lien and Set-off (Exhibit-29), all dt.07.06.2006. The Defendant Nos.3 and 4 executed Letter of Guarantee (Exhibit-30) and General Letter of Lien and Set-off (Exhibit-31), both dt.07.06.2006.
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DRT-III MUMBAIT.O.A. NO.1821 OF 2016 (JUDGMENT)
1. 8. To secure the aforesaid loan facilities, Defendant No.1 created Declaration dt.18.06.2005 (Exhibit-32) and 7/12 Extract (Exhibit-33) declaring mortgage of the property i.e. agricultural land bearing Survey No.220, admeasuring 1 H. 47 R., situated at Village Umrale Khurd, Tal. Dindori, Dist. Nashik.
2. 9. The case of the Applicant Bank is that Defendant No.1 again approached the Applicant Bank vide Rephasement Application dt.25.03.2010 (Exhibit-34) for restructuring the credit facilities granted. The Applicant Bank vide Agreement for Restructuring of Credit Facilities dt.25.03.2010 (Exhibit-35), restructured the facility for an amount of Rs.13.05 Lakhs and executed Letter of Acknowledgement of Debt dt.16.03.2012 (Exhibit-36) and dt.12.12.2013 (Exhibit-37).
3. 10. The Applicant Bank further submits that after availing the loan, Defendant Nos.1 to 4 did not adhere to the financial discipline of the Applicant Bank and failed and neglected to repay the loan amount and consequent thereto, the loan account was categorized as NPA on 30.06.2013.
4. 11. The Legal Notice dt.14.09.2013 (Exhibit-38) was issued to the Defendant Nos.1 to 4 through the Advocate of the Applicant Bank calling upon Defendant Nos.1 to 4 to repay the outstanding dues of the Applicant Bank under the said Loan but to no effect.
Page 4 of 9V.A. um11-06-2024
(JUDGMENT)
Hence, this Original Application for recovery of aggregate amount of Rs.25,89,843.34 along with interest @13.75% p.a. has been filed.
1. 12. The notice of this Original Application was issued to Defendant Nos.1 to 4 but they failed to appear despite service and hence they were proceeded against ex-parte.
2. 13. This Tribunal has given dispassionate consideration to the arguments advanced by the counsel for the Applicant Bank and has gone through the evidence brought on record.
3. 14. To prove his case, the Applicant Bank has filed Claim Affidavit of Mr. Mukesh Kumar Chate, Chief Manager of the 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.
4. 15. The Applicant Bank has placed on record Statement of Account (Exhibit-39) and Certificate regarding Information Technology Act, 2000 (Exhibit-40), which corroborates the version of Mr. Mukesh Kumar Chate, Chief Manager of the Applicant Bank.
5. 16. 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 the Applicant Bank.
(JUDGMENT)
17. From the evidence brought on record, this Tribunal finds that the Defendant No.1 availed the aforesaid loan facilities and executed Agreements of Hypothecation dt.08.07.2005 (Exhibit-14), dt.06.12.2005 (Exhibit-20) and dt.07.06.2006 (Exhibit-28), but for the reasons best known to the Applicant Bank, failed to give description of the hypothecated property having created hypothecation charge over the movable property.
18. From the evidence brought on record, this Tribunal finds that the Defendant No.1 availed the aforesaid loan facilities and mortgaged the property, i.e. agricultural land bearing Survey No.220, admeasuring 1 H. 47 R., situated at Village Umrale Khurd, Tal. Dindori, Dist. Nashik and Defendant Nos.2 to 4 stood Guarantors but Defendant Nos.1 to 4 failed to repay the outstanding loan amount despite repeated requests and Legal Notice dt.14.09.2013 sent by the Applicant Bank through Advocate but still the Defendant Nos.1 to 4 failed to repay the outstanding loan amount. Hence, the Applicant Bank is entitled to recover from (i) Defendant Nos.1 to 3, Rs.7,42,187.42, being dues under 1<sup>st</sup> Term Loan, along with interest from the date of filing of application till realization; (ii) from Defendant Nos.1, 2 and 4, Rs.7,90,118.47, being dues under 2<sup>nd</sup> Term Loan, along with interest from the date of filing of application till realization; and (iii) from Defendant Nos.1, 3 and 4, Rs.10,57,537.46, being Page 6 of 911-06-2024
(JUDGMENT)
dues under DKCC Facility, along with interest from the date of filing of application till realization. Thus, the Applicant Bank has been able to prove his case by preponderance of probabilities. The Original Application No.1821 of 2016 is allowed accordingly.
19. 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 8.5% p.a. with monthly rests from the date of filing of Original Application till final recovery is made from Defendants.
ORDER
Transferred Original Application No.1821 of 2016 stands allowed with cost against Defendant Nos.1 to 4.
(JUDGMENT)
Defendant Nos.1 to 3 are held jointly and severally liable to pay to the Applicant Bank within two months a sum of Rs.7,42,187.42, being dues under 1<sup>st</sup> Term Loan Facility, together with interest pendentelite and future interest @8.5% p.a. with monthly rests from the date of filing of this O.A. till the date of realization; Defendant Nos.1, 2 and 4 are held jointly and severally liable to pay to the Applicant Bank within two months a sum of Rs.7,90,118.47, being dues under 2<sup>nd</sup> Term Loan Facility, together with interest pendentelite and future interest @8.5% p.a. with monthly rests from the date of filing of this O.A. till the date of realization; and Defendant Nos.1, 3 and 4 are held jointly and severally liable to pay to the Applicant Bank within two months a sum of Rs.10,57,537.46, being dues under DKCC Facility, together with interest pendentelite and future interest @8.5% p.a. with monthly rests from the date of filing of this O.A. till the date of realization; failing which the aforesaid amounts shall be recovered from the sale of mortgaged property i.e. agricultural land bearing Survey No.220, admeasuring 1 H. 47 R., situated at Village Umrale Khurd, Tal. Dindori, Dist. Nashik and in case of shortfall, the
(JUDGMENT)
same shall be recovered from the sale of the movable and immovable properties of the Defendant Nos.1 to 4.
20. Defendant Nos.1 to 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.
21. 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 12.08.2024 before Learned R.O., DRT - III, Vashi, Navi Mumbai.
22. The Defendant Nos.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.
23. Copies of this Judgment be sent to the parties free of cost and file be consigned to Record Room.
Given under my hand and the seal of this Tribunal on this date : 11.06.2024.
(ARUN KUMAR SINGAL) PRESIDING OFFICER DRT-III, VASHI, NAVI MUMBAI
Typed By - S S Dhawale, PS