BANK OF BARODA vs MR. KAWALE SANJAY SHIVAJI on 7 December 2023

**JUDGMENT**

1. 1. The case of the Applicant Bank is that the Defendant No.1 approached the Applicant Bank vide Loan Application dt.03.04.2010 Exh.10 for grant of Term Loan of Rs.6,31,000/- for Grape Garden and Pipeline. The loan was sanctioned vide sanction Letter dt.03.04.2010 Exh.11.

2. 2. To secure the above Term Loan of Rs.6,31,000/-, the Defendant No.1 executed Hypothecation-Agreement for Term Loan dt.03.04.2010 Exh.12, Demand Promissory Note dt.03.04.2010 Exh.13 and Letter of General Lien and Set-Off dt.03.04.2010 Exh.14. The Defendant No.2 and 3 stood

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Guarantors and executed Letter of Guarantee dt.03.04.2010 Exh.15 and Letter of General Lien and Set-Off dt.03.04.2010 Exh.16.

1. 3. The Defendant No.1 again approached the Applicant Bank vide Loan Application dt.06.12.2010 Exh.17 for grant of Crop Loan under DKCC Facility of Rs.1,98,000/-. The loan was sanctioned vide Sanction Letter dt.06.12.2010 Exh.18.

2. 4. To secure the above Crop Loan under DKCC Facility of Rs.1,98,000/-, the Defendant No.1 executed Hypothecation-Agreement dt.06.12.2010 Exh.19, Demand Promissory Note dt.06.12.2010 Exh.20, Letter of General Lien and Set Off dt.06.12.2010 Exh.21 and Letter of Continuity dt.06.12.2010 Exh.22. The Defendant No.2 and 4 stood Guarantors and executed Letter of Guarantee dt.06.12.2010 Exh.23 and Letter of General Lien and Set-Off dt.06.12.2010 Exh.24.

3. 5. The Defendant No. 1 also executed Charge Deed alongwith 7/12 extract dt.09.09.2009 Exh.26 mortgaging the property i.e. All that piece and parcel of land bearing Survey No.56 situated at Village Mawadi, Taluka Dindori, District Nashik.

4. 6. The Defendant No.1 executed Letter of Acknowledgement of Debt and Security dt.15.01.2014 Exh.27.

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1. 7. 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. 8. Recall Notice was issued to Defendants through the Advocate of the Applicant Bank on 02.06.2015 Exh.28 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.10,91,020/- alongwith interest at the rate of 10.50% p.a. under Term Loan and Rs.2,80,230/- alongwith interest at the rate of 10% p.a. under Crop Loan has been filed.

3. 9. 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.

4. 10. To prove his case, the Applicant Bank has filed Claim Affidavit of Mr. Jayant Bapat, 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. 11. The Applicant Bank has placed on record Statement of Account alongwith I.T. Certificate Exh.30 and Exh.32 which dkun 07-12-2023

corroborates the version of Mr. Jayant Bapat, Chief Manager, of Applicant Bank.

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.

13. In view of evidence brought on record, this Tribunal finds that the Defendant No.1 availed the loan and he mortgaged the property i.e. All that piece and parcel of land bearing Survey No.56 situated at Village Mawadi, Taluka Dindori, District Nashik 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 Recall Notice dt.02.06.2015 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.10,91,020/- alongwith further interest at the rate of 10.50% p.a. under Term Loan and Rs.2,80,230/- alongwith further interest at the rate of 10% p.a. under Crop Loan from the date of filing of application till payment and/or realization. Defendant No.1 to 3 are held jointly and severally liable to pay outstanding due of Rs.10,91,020/- alongwith interest pendente lite and future interest at the rate of 10.50% p.a.

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under Term Loan and Defendant No.1, 2 and 4 are held jointly and severally liable to pay outstanding due of Rs.2,80,230/- alongwith interest pendentelite and future interest at the rate of 10% p.a. under Crop Loan. Thus, Applicant Bank has been able to prove his case by preponderance of probabilities. Transfer Original Application No.1953 of 2016 is allowed accordingly.

1. 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 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 10.50% p.a. under Term Loan 10% p.a. under Crop Loan from the date of filing of Original Application till final recovery is made from Defendants.

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ORDER

O.A. stands allowed with cost and the Defendant No.1 to 3 are held jointly and severally liable to pay to the Applicant Bank within two months a sum of Rs.10,91,020/- together with interest pendentelite and future interest @10.50% per annum under Term Loan and Defendant No.1, 2 and 4 are held jointly and severally liable to pay outstanding due of Rs.2,80,230/- together with interest pendentelite and future interest @10% per annum under Crop Loan 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.56 situated at Village Mawadi, 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.

1. 15. Defendant No.1 to 4 are directed to declare, on oath, to the Recovery Officer, Debts Recovery Tribunal - III, Mumbai,

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both moveable and immoveable assets of them for the purpose of attachment and sale for realizing the shortfall.

1. 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 08.02.2024 before Learned R.O., DRT - III, Vashi, Navi Mumbai.

2. 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.

3. 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 :

07.12.2023.

Dictated on 07.12.2023.

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

Typed By - Mrs. Monika Pawar, Stenographer.