CENTRAL BANK OF INDIA vs SHRI. ASHOK PUNJAJI BORASTE on 3 November 2023

JUDGMENT

1. 1. The case of the Applicant Bank is that the Defendant No.1 approached the Applicant Bank vide Loan Application dt.10.01.2003 Exh.13 for grant of Term Loan of Rs.8,54,000/- for the purpose to takeover the loan account from Local Co-

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operative Societies and to purchase the steel angles, drip irrigation for development of Grape. The loan was sanctioned Sanction Letter dt.16.02.2003 Exh.14.

1. 2. To secure the Term Loan of Rs.8,54,000/-, the Defendant No.1 executed Loan-cum-Hypothecation Agreement dt.25.02.2003 Exh.15, Annexure-I dt.25.02.2003 Exh.17, Articles of Agreement dt.25.02.2003 Exh.18. The Defendant No.2 and 3 stood Guarantors and executed Form of Guarantee dt.25.02.2003 Exh.16.

2. 3. The Defendant No.1 also executed Simple Mortgage Deed dt.14.08.2003 Exh.19 mortgaging the property i.e. All that piece and parcel of agricultural land bearing Gat No.572 area admeasuring 01 H. 63 R assessed at Rs.09.31 paise, Gat No. 582/A area admeasuring 00 H. 61 R assessed at Rs.03.12 paise and Gat No.582/B area admeasuring 00 H. 31 R assessed at Rs.1.69 paise situated at Village Sakore, Tal. Niphad, Dist. Nasik.

3. 4. The Defendant No.1 also approached the Applicant Bank vide Loan Application dt.10.01.2003 Exh.20 for grant of Crop Loan of Rs.5,35,000/- for development of Grape

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Garden. The Loan was sanctioned vide Sanction Letter dt.16.02.2003 Exh.21.

1. 5. To secure the Crop Loan of Rs.5,35,000/-, the Defendant No.1 executed Demand Promissory Note dt.25.02.2003 Exh.22, Loan-cum-Hypothecation Agreement dt.25.02.2003 Exh.23, Annexure-I dt.25.02.2003 Exh.25 and Articles of Agreement dt.25.02.2003 Exh.26. The Defendant No.2 and 3 stood Guarantors and executed Form of Guarantee dt.25.02.2003 Exh.24.

2. 6. The Defendant No.1 again approached the Applicant Bank vide Loan Application dt.06.02.2003 Exh.27 for grant of Term Loan of Rs.6,22,000/- which was granted by the Applicant Bank.

3. 7. To secure the above Term Loan of Rs.6,22,000/-, the Defendant No.1 executed Loan-cum-Hypothecation Agreement dt.15.04.2003 Exh.28, Annexure-I dt.15.04.2003 Exh.31 and Articles of Agreement dt.15.04.2003 Exh.30. The Defendant No.3 and 4 stood Guarantors and executed Form of Guarantee dt.15.04.2003 Exh.29.

4. 8. The Defendant No.1 also executed Declarative Mortgage Deed dt.06.09.2003 Exh.32 mortgaging the property i.e. All okam 03-11-2023

that piece and parcel of agricultural land bearing Gat No.572 area admeasuring 01 H. 63 R assessed at Rs.09.31 paise, Gat No. 582/ A area admeasuring 00 H. 61 R assessed at Rs.03.12 paise and Gat No.582/B area admeasuring 00 H. 31 R assessed at Rs.1.69 paise situated at Village Sakore, Tal. Niphad, Dist. Nasik.

1. 9. The Defendant No.1 again approached the Applicant Bank vide Loan Application dt.30.12.2004 Exh.33 for grant of Term Loan of Rs.3,24,720/- which was granted by the Applicant Bank.

2. 10. To secure the above Term Loan of Rs.3,24,720/-, the Defendant No.1 executed Loan-cum-Hypothecation Agreement dt.24.05.2005 Exh.34 and Articles of Agreement dt.24.05.2005 Exh.36. The Defendant No.3 and 4 stood Guarantors and executed Form of Guarantee dt.24.05.2005 Exh.35.

3. 11. The Defendant No.1 again approached the Applicant Bank vide Loan Application dt.16.08.2010 Exh.37 for grant of Crop Loan of Rs.4,50,000/-. The loan was sanctioned vide Terms & Condition Letter dt.03.09.2010 Exh.38.

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12. To secure the above Crop Loan of Rs.4,50,000/-, the Defendant No.1 executed Demand Promissory Note dt.06.09.2010 Exh.39, Letter of Continuity dt.06.09.2010 Exh.40, Loan-Cum-Hypothecation Agreement dt.06.09.2010 Exh.41, Annexure-I dt.06.09.2010 Exh.42, and Articles of Agreement dt.06.09.2010 Exh.43. The Defendant No.3 and 4 stood Guarantors and executed Form of Guarantee dt.06.09.2010 Exh.44.

13. The Defendant No.1 also executed Mortgage Deed dt.06.09.2010 Exh.45 mortgaging the property i.e. All that piece and parcel of agricultural land bearing Gat No.572 area admeasuring 01 H. 63 R assessed at Rs.09.31 paise, Gat No. 582/A area admeasuring 00 H. 61 R assessed at Rs.03.12 paise and Gat No.582/B area admeasuring 00 H. 31 R assessed at Rs.1.69 paise situated at Village Sakore, Tal. Niphad, Dist. Nasik.

14. The Defendant No.1 also executed Acknowledgement Letter dt.20.12.2010 Exh.46 and Demand Promissory Note dt.20.12.2010 Exh.47.

15. The Applicant Bank has further submitted that the Defendants committed breach of terms and conditions of dhun 03-11-2023

sanction and security documents and failed to maintain financial discipline of the Bank.

16. The Legal Notice was issued to Defendants through Advocate of the Applicant Bank on 18.04.2014 Mark "A" calling upon Defendants to repay and clear the dues of the Applicant Bank under the said loan but to no effect, hence, this Original Application for recovery of Rs.30,07,790/- alongwith interest at the rate of 13.5% p.a. has been filed.

17. 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.

18. To prove his case, the Applicant Bank has filed Claim Affidavit of Shri. Ritesh Vilas Deore, Manager of Applicant Bank and she has supported the case of the Applicant Bank in all material particulars and she has also proved the documents executed between the parties.

19. The Applicant Bank has placed on record Statement of Account dt.28.01.2015 Exh.48, Exh.49, Exh.50 and Exh.51 which corroborates the version of Shri. Ritesh Vilas Deore, Manager of Applicant Bank.

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20. 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.

21. In view of evidence brought on record, this Tribunal finds that the Defendant No.1 availed the loan and he hypothecated the goods and mortgaged the property i.e. All that piece and parcel of agricultural land bearing Gat No.572 area admeasuring 01 H. 63 R assessed at Rs.09.31 paise, Gat No. 582/A area admeasuring 00 H. 61 R assessed at Rs.03.12 paise and Gat No.582/B area admeasuring 00 H. 31 R assessed at Rs.1.69 paise situated at Village Sakore, Tal. Niphad, Dist. Nasik with the Applicant Bank and Defendant No.2 to 4 stood Guarantors but the Defendant No.1 to 4 failed to repay the outstanding loan amount despite repeated requests and Legal Notice dt.18.04.2014 was sent by the Bank through Advocate but still the Defendants failed to pay the outstanding loan amount. Hence Applicant Bank is entitled to recover Rs.30,07,790/- alongwith further interest at the rate of 13.5% p.a. from the date of filing of application till payment and/or realization. Defendant No.1 to 4 are held jointly and severally liable to pay outstanding dues of Rs.30,07,790/- alongwith interest pendentelite and future interest at rate of 13.5% p.a. Thus,

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Applicant Bank has been able to prove his case by preponderance of probabilities. Transfer Original Application No.2021 of 2016 is allowed accordingly.

22. 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 13.5% 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 to 4 are held jointly and severally liable to pay to the Applicant Bank within two months a sum of Rs.30,07,790/- together with interest

*[Signature]* 03-11-2023

pendentelite and future interest @13.5% 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 goods and mortgaged property i.e. All that piece and parcel of agricultural land bearing Gat No.572 area admeasuring 01 H. 63 R assessed at Rs.09.31 paise, Gat No. 582/A area admeasuring 00 H. 61 R assessed at Rs.03.12 paise and Gat No.582/B area admeasuring 00 H. 31 R assessed at Rs.1.69 paise situated at Village Sakore, Tal. Nipahad, Dist. Nasik and in case of shortfall, the same shall be recovered from the sale of the movable and immovable properties of the Defendants. The Defendant No.2 to 4 being Guarantors shall be liable to the extent of their liability only.

23. 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.

24. 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 04.01.2024 before Learned R.O., DRT - III, Vashi, Navi Mumbai.

25. 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.

26. 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 : 03.11.2023.

Dictated on 03.11.2023.

*Arun Kumar*

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

Typed By - Mrs. Monika Pawar, Stenographer.