BANK OF BARODA vs VITHOBA PANDHAR PELMAHALE on 22 December 2023

**JUDGMENT**

1. 1. The case of the Applicant Bank is that the Defendant No.1 approached the Applicant Bank vide Application dt.24.04.2007 Exh.10 for grant of Term Loan-I of Rs.7,39,000/- for Pipeline, Development of grape garden and Cultivation of Grapes. The Applicant Bank considered the request of Defendant No.1 and sanctioned Term Loan-I.

2. 2. To secure the aforesaid Term Loan-I of Rs.7,39,000/-, the Defendant No.1 executed Hypothecation Agreement for Agriculture Loan dt.11.05.2007 Exh.11, General Letter of Lien and Set-Off dt.11.05.2007 Exh.13. Defendant No.2

*[Signature]* 22-12-2023

stood Guarantor and executed Deed of Guarantee dt.11.05.2007 Exh.12 and General Letter of Lien and Set-Off dt.11.05.2007 Exh.14.

1. 3. Defendant No.1 also executed Declaration dt.26.04.2007 Exh.15, whereby, he mortgaged the immovable property i.e. All those pieces and parcels of land bearing Survey No.16/P area admeasuring 1 H 76 R situated at Village-Pade, Taluka-Dindori, District - Nashik.

2. 4. The Defendant No.1 again approached the Applicant Bank vide Application Form dt.26.09.2008 Exh.17 for grant of Agricultural Term Loan under DKCC of Rs.3,36,000/- for Pipeline, Development of grape garden and Cultivation of Grapes. The Applicant Bank considered the request of Defendant No.1 and sanctioned Term Loan under DKCC.

3. 5. To secure the above Agricultural Term Loan under DKCC of Rs.3,36,000/-, the Defendant No.1 executed Hypothecation Agreement for Agriculture Loan dt.06.10.2008 Exh.18, General Letter of Lien and Set-Off dt.06.10.2008 Exh.20, Letter of Continuity dt.06.10.2008 Exh.22 and Demand Promissory Note dt.06.10.2008 Exh.23. Defendant No.2 stood Guarantor and executed Deed of

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Guarantee dt.06.10.2008 Exh.19 and General Letter of Lien and Set-Off dt.06.10.2008 Exh.21.

1. 6. The Defendant No.1 again approached the Applicant Bank vide Restructuring Application dt.04.07.2010 Exh.24 for Restructuring the aforementioned loan facilities. Applicant Bank considered the request for Restructuring. To secure aforesaid Restructuring, the Defendant No.1 executed the Agreement for Restructuring of Credit Facility dt.01.10.2010 Exh.25.

2. 7. The Defendants also executed Acknowledgement of Debt & Security dt.01.11.2010 Exh.26 and dt.10.01.2014 Exh.27.

3. 8. 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.

4. 9. Demand Notice was issued by the Applicant Bank to Defendants on 27.02.2013 Exh.28 calling upon Defendants to repay and clear the dues within 60 days of the Applicant Bank under the said loan but Defendants did not bother to pay. Thereafter, Legal Notice was issued to Defendants through the Advocate of the Applicant Bank dt.28.03.2015

*[Signature]* 28-12-2023

Exh.29 calling upon the Defendants to pay and clear the dues of the Applicant Bank under said loan but to no effect, hence, this Original Application for recovery of Rs.21,06,998/- alongwith future interest has been filed.

10. 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.

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

12. The Applicant Bank has placed on record Statement of Account alongwith Certificate under Banker's Book Evidence Act alongwith IT Certificate Exh.31 which corroborates the version of Mr. Subodh Kumar, Chief Manager, of Applicant Bank.

13. 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.

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14. 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 those pieces and parcels of land bearing Survey No.16/P area admeasuring 1 H 76 R situated at Village-Pade, Taluka-Dindori, District - Nashik with the Applicant Bank and Defendant No.2 stood Guarantor but the Defendant No.1 and 2 failed to repay the outstanding loan amount despite repeated requests and Legal Notice dt.28.03.2015 was sent by the Bank through Advocate but still Defendants failed to repay the outstanding loan amount. Hence, Applicant Bank is entitled to recover Rs.21,06,998/- alongwith further interest from the date of filing of application till payment and/or realization. Defendant No.1 and 2 are held jointly and severally liable to pay outstanding due of Rs.14,94,272/- alongwith interest pendentelite and future interest at rate of 10.75% p.a. under Term Loan-I and Rs.6,12,726/- alongwith interest pendentelite and future interest at rate of 11.75% p.a. under Agricultural Term Loan under DKCC. Thus, Applicant Bank has been able to prove his case by preponderance of probabilities. Transfer Original Application No.1924 of 2016 is allowed accordingly.

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15. 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 10.75% p.a. and 11.75% p.a. under Term Loan-I and Agricultural Term Loan under DKCC respectively 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 and 2 are held jointly and severally liable to pay to the Applicant Bank within two months a sum of Rs.14,94,272/- together with interest pendentelite and future interest @10.75% per annum under Term Loan-I

*Chun* 22-12-2023

and Rs.6,12,726/- together with interest pendetelite and future interest @11.75% p.a. under Agricultural Term Loan under DKCC 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 those pieces and parcels of land bearing Survey No.16/P area admeasuring 1 H 76 R situated at Village-Pade, 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.

16. Defendant No.1 and 2 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.

17. 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 23.02.2024 before Learned R.O., DRT - III, Vashi, Navi Mumbai.

18. The Defendant No.1 and 2 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.

19. 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 : 22.12.2023.

Dictated on 22.12.2023.

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

Typed By - Mrs. Monika Pawar, Stenographer