BANK OF BARODA vs SAMPAT KONDAJI VADJE on 2 November 2023

**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-I of Rs.4,00,000/-, Term Loan-II of Rs.6,23,000/- and

*Sharma* 02-11-2023

Cash Credit-III of Rs.1,82,000/- . The loans were sanctioned vide Sanction Letter dt.03.12.2006 Exh.45.

1. 2. To secure the above Term Loan-I of Rs.4,00,000/-, the Defendant No.1 and 2 executed Composite Hypothecate Agreement dt.06.12.2006 Exh.23, Demand Promissory Note dt.06.12.2006 Exh.24, Letter of Installment with acceleration clause dt.06.12.2006 Exh.26, Declaration cum Undertaking cum Authority dt.06.12.2006 Exh.27 and Letter of Acknowledgement of debt dt.10.09.2009 Exh.28.

2. 3. The Defendant No.1 and 2 are the Borrowers and Defendant No.3 and 4 stood Guarantors and executed General Form of Guarantee dt.06.12.2006 Exh.25.

3. 4. To secure the above Term Loan-II of Rs.6,23,000/-, the Defendant No.1 and 2 executed Composite Hypothecation Agreement dt.06.12.2006 Exh.29, Demand Promissory Note dt.06.12.2006 Exh.30, Letter of Installment with acceleration clause dt.06.12.2006 Exh.31, Declaration cum Undertaking cum Authority dt.06.12.2006 Exh.32 and Letter of Acknowledgement of debt dt.17.11.2009 Exh.34.

dharm 02-11-2023

5. The Defendant No.1 and 2 are the Borrowers and Defendant No.3 and 4 stood Guarantors and executed General Form of Guarantee dt.06.12.2006 Exh.33.

6. To secure the above Cash Credit Loan-III of Rs.1,82,000/-, the Defendant No.1 and 2 executed Composite Hypothecate Agreement dt.06.12.2006 Exh.35, Demand Promissory Note dt.06.12.2006 Exh.36, Letter of Continuing dt.06.12.2006 Exh.37, Declaration cum Undertaking cum Authority dt.06.12.2006 Exh.38 and Letter of Acknowledgement of debt dt.10.09.2009 Exh.40.

7. The Defendant No.1 and 2 are the Borrowers and Defendant No.3 and 4 stood Guarantors and executed General Form of Guarantee dt.06.12.2006 Exh.39.

8. The Defendant No.1 and 2 also executed 7/12 extract Exh.41, Exh.42 and Exh.43, whereby, they mortgaged the property i.e. i) Gat No.583 total admeasuring area of 0 H. 51 area assessed at Rs.4 and 00 paise, situated at Village Madki-Jamb, Tal.:Dindori, Dist.: Nashik with all piece and parcel, Pipelines and with all building/sheds constructed thereon with all standing structures therein. ii) Gat No.578

Sham 02-11-2023

total admeasuring area of 0 H. 28 area assessed at Rs.0 and 53 paise, situated at Village Madki-Jamb, Tal.:Dindori, Dist.: Nashik with all piece and parcel, Pipelines and with all building/sheds constructed thereon with all standing structures therein and iii) Gat No.404/3 total admeasuring area of 01 H. 48 area assessed at Rs.1 and 06 paise, situated at Village Madki-Jamb, Tal.:Dindori, Dist.: Nashik with all piece and parcel, Pipelines and with all building/sheds constructed thereon with all standing structures therein.

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

10. The Legal Notice was issued to Defendants through the Advocate of Applicant Bank on 16.08.2008 and 22.09.2010 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.19,21,651/- alongwith interest at the rate of 14.50% p.a. under Term Loan-I, Term Loan-II and Cash Credit Loan-III has been filed.

Sharma 02-11-2023

11. 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.

12. To prove his case, the Applicant Bank has filed Claim Affidavit and Additional Affidavit of Mr. Subodh Kumar, 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.

13. The Applicant Bank has placed on record Statement of Account Exh.46, Exh.47 and Exh.48 and Certificate under Banking Exh.49 which corroborates the version of Mr. Subodh Kumar, Manager of Applicant Bank.

14. 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.

15. From the evidence brought on record, this Tribunal finds that the Defendant No.1 and 2 availed the loan and they hypothecated the plant & machinery, agricultural machinery, agricultural implements, agriculture inputs such as seeds, fertilizers, insecticides, stock (raw materials,

John 02-11-2023

in process and finished goods) book debts, etc. standings crops, plantation, horticulture crops, livestock/stock etc. mortgaged the property i.e. i) Gat No.583 total admeasuring area of 0 H. 51 area assessed at Rs.4 and 00 paise, situated at Village Madki-Jamb, Tal.:Dindori, Dist.: Nashik with all piece and parcel, Pipelines and with all building/sheds constructed thereon with all standing structures therein. ii) Gat No.578 total admeasuring area of 0 H. 28 area assessed at Rs.0 and 53 paise, situated at Village Madki-Jamb, Tal.:Dindori, Dist.: Nashik with all piece and parcel, Pipelines and with all building/sheds constructed thereon with all standing structures therein and iii) Gat No.404/3 total admeasuring area of 01 H. 48 area assessed at Rs.1 and 06 paise, situated at Village Madki-Jamb, Tal.:Dindori, Dist.: Nashik with all piece and parcel, Pipelines and with all building/sheds constructed thereon with all standing structures therein with the Applicant Bank and Defendant No.3 and 4 stood Guarantors but Defendant No.1 to 4 failed to repay the outstanding loan amount despite repeated requests and Legal Notice dt.16.08.2008 and 22.09.2010 was sent by the Bank through Advocate but still the Defendants failed to repay the outstanding loan amount. Hence, Applicant Bank

Sharma 02-11-2023

is entitled to recover Rs.19,21,651/- alongwith further interest at the rate of 14.50% p.a. under Term Loan-I, Term Loan-II and Cash Credit Loan-III from the date of filing of application till realization. Defendant No.1 to 4 are held jointly and severally liable to pay the outstanding dues of Rs.19,21,651/- alongwith interest pendentelite and future interest at the rate of 14.50% p.a. under Term Loan-I, Term Loan-II and Cash Credit Loan-III. Thus, Applicant Bank has been able to prove his case by preponderance of probabilities. Transfer Original Application No.1147 of 2016 is allowed accordingly.

1. 16. 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 14.50% p.a. under Term Loan-I, Term

Loan-II and Cash Credit Loan-III from the date of filing of Original Application till final recovery is made from Defendant.

ORDER

O.A. stands allowed with cost and the Defendant No.1 to 4 are held jointly and severally liable to pay to the Applicant Bank within two months a sum of Rs.19,21,651/- together with interest pendentelite and future interest @14.50% p.a. under Term Loan-I, Term Loan-II and Cash Credit Loan-III 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 plant & machinery, agricultural machinery, agricultural implements, agriculture inputs such as seeds, fertilizers, insecticides, stock (raw materials, in process and finished goods) book debts, etc. standings crops, plantation, horticulture crops, livestock/stock etc. and mortgaged properties i.e. i) Gat No.583 total admeasuring area of 0 H. 51 area assessed at Rs.4 and 00 paise, situated at Village Madki-

Arum 02-11-2023

Jamb, Tal.:Dindori, Dist.: Nashik with all piece and parcel, Pipelines and with all building/sheds constructed thereon with all standing structures therein. ii) Gat No.578 total admeasuring area of 0 H. 28 area assessed at Rs.0 and 53 paise, situated at Village Madki-Jamb, Tal.:Dindori, Dist.: Nashik with all piece and parcel, Pipelines and with all building/sheds constructed thereon with all standing structures therein and iii) Gat No.404/3 total admeasuring area of 01 H. 48 area assessed at Rs.1 and 06 paise, situated at Village Madki-Jamb, Tal.:Dindori, Dist.: Nashik with all piece and parcel, Pipelines and with all building/sheds constructed thereon with all standing structures therein and in case of shortfall, the same shall be recovered from the sale of the movable and immovable properties of the Defendants.

17. Defendant No.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.

Arum 02-11-2023

18. 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 03.01.2024 before Learned R.O., DRT - III, Vashi, Navi Mumbai.

19. The Defendant No.1 to 4 are restrained from depleting, transferring, encumbering, alienating or in any way dealing with the aforesaid properties/assets without first paying the claim of the Applicant Bank.

20. 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 :

02.11.2023.

Dictated on 02.11.2023.

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

Typed By - Mrs. Monika Pawar, Stenographer.