STATE BANK OF INDIA vs M/S. ACE CONDUCTORS LLP on 4 July 2019

1. Mls. Ace Cond

i) Plot No. 102, She ustl Estate, Village : Palghar And also at

ii) Flat No. 5, 47,Shivsadan, Nagar, (East), M B, Trishul CHSL, School, Chakal MIDC, Caves Road, Andheri (East), ) ... Applicant L ) ) ) ) t i ) ) ) ) ) ) ) ) ) ) iv{umbai * 400 059

2. Mr. Rajesh Purushottam Sharma, Flat No. 5,1't Floor, Plot No. 4Z Shivsadan, Shri Rajasthan CHSL, J B Nagar, Andheri - Kurla Road, Andheri (East), Mumbai * 400 059 Defendant No. 1 Defendant No. 2 Wagle ) ) Manager VERSUS Shri Andheri

2. Mr. Pramod Yogesh Kaushik, Flat No. 5,118, Trishul CHSL, Opp. Canossa School, Chakal MIDC, Mahakali Caves Road, Andheri (East), Mumbai - 400 059 Order -l.OA 5 19 o1-2018 (E,x-palte)(Final) Defendant No. 3 RD Act and lender of credit facilities to ) ) ) ) ) Present Shri. Sachin A Koli, Advocate, Counsel for Applicant Bank Defendants remained ex-Parte This original Application (oA) is filed by Applicant under 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, Act") (since changed to "Recovery of Debts and Bankruptcy Act, 1 the Defendants for the recovery of a sum aggregating to 88, Eighty Eight lacs Ninety Five thousand Four hundred Eighty Two only) in respect of the various credit facili the OA alongwith cost charges, pendente lite future interest as sta from date of filing of this OA tilI its realisation. Parties : Applicant is a Bank within Sec Defendant No. 1 Firm 2 and 3 are partners. Defendant No bility Partnership Firm registered under the of Partnership Act, 2008 ("Defendant No. 1 Firm") with o. 3 as the Partners. Firm availed credit facilities from the Applicant for which Defendant 2 and.3 provided their personal guarantee as additional security Factual matrix :

1. (a) As per OA, on the application of the partners, Applicant provided to Defendant No. l Firm credit facilities of Demand Cash Credit Limit of Rs. 20,00,000/- ('ccl') and Medium Term Loan of Rs. 50,00,000/- ("MTL") (CCL and MTL

J OrderTOA 519 of 2018 (Ex-par1e)(Final) are collectively called "Credit Facilities") based on the documentation and security creation by Defendant No. 2 and 3 who executed all documents. and created all securities for and on behalf of and in the name of Defendant No. 1 Firm as its Partners. Defendant No. 2 and,3 also provided additional security to the Credit Facilities in the form of joint and several personal guarantee.

(b) As per the OA, the Defendant No. 1 Firm committed breaches of the terms and conditions on the basis of which the Credit Facilities were d and also failed and neglected to clear the outstanding dues in Credit Facilities and regularise the accounts, compelling the Notice to the Defendants through its Advocate, called upon ay the entire outstanding amount of the Credit Since ts failed to repay the same, OA has been filed

(c) I" the OA, as a part of seeking of dues, Applicant sought reliefa gainst Defendant of permanent injr.rnction against - (a) Defendant No. 2 creating third party interest in respect of hi.s Flat viz No Oth Floor, Tower No. 1, Oberoi Road, Andheri (East), Mumbai alongwith Car P party interest in No. 3 from dealing with / creating third Flat No. B-11, First Floor, Trishul CHS Ltd., (East), Mumbai.

2. (a) itself of the OA being within limitation and falling jurisdiction as per RDDB Act, ordered issue of Summons to (b) on of the OA to this Tribunal, Summons were sent to the Defendants through Registered Post with Acknowledgement Due. Postal covers sent to Defendant No. 1 and 3 got served and Acknowledgement Due Cards received back. However, Postal cover sent to Defendant No. 2 returned undelivered with postal endorsement "lJnclaimed". Applicant filed Service Affidavit. As per Regulation 19 of The Regulations of Practice 2010 (framed pursuant to power Splender-Gtand, Jogesl'rwari Tribunal,

Orcier TOA 5 l9 of 201 8 (Ex-parte)(Final) conferred under sub-Section(1) of Sectior.22 of RDDB Act), service is deemed to have been completed on Defendant No. 2.

(c) As Defendants did not appear either in person or through advocate and did not file Written Statements, the Defendants were set ex-parte on15/11'/2018 by an Order of the Tribunal. Proceedings : a.) As directe& by the Tribunal, Applicant filed, Deshpande, Manager (Stressed Assets), Claim Affidavit Documents as Arurexures (which have been taken on record and marked as "Exhibits") and also filed Statement of Account together with the Certificate issued und Technology Ac! 2000 and Certificates under Bankers 189'L, as Annexures (which are marked as Exhibit the Documents filed as Exhibits and gone through by are found relevant for the Tribunal to consider on merit. Observation on Evidences provided& Claim made :

4. The Statement of Account filed by the Applicant, certified as per Bankers Books of Evidence Act, 1891, tallied with claim in OA. Further, the case of the Applicant is based on various Documents (including the above referred Exhibits) filed alongwith Claim Affidavit, which is a sworn Statement, which Exhibit Document Facility S. No ,r10r, of Arrangement (Office CoPY) ,r11r, Agreement of Loan Hypothecation (Original) cum- ,r12r, Personal Guarantee of Def 2 & 3 (Original) ,r13r, Revival Letter by Def 1 (Original) "1_4" Recall Notice (Office CoPY) ) . Padmakar Tribunal Cash Credit Limit

1.

2. Order TOA 5 l9 ol20l 8 (Ex-partexFinal) has gone unchallenged as the Defendants did not defend themselves and remained ex-parte. In my view, there is no question of disbelieving the Exhibits and Claim Affidavit and other evidences let in by the Applicant and the Applicant has proved its case beyond reasonable doubt to the extent of sanctioning the Credit Facilities, completing documentation and disbursement of the Credit Facilities. 5" The Applicant has claimed interest at the rate of 17.30% p. y rests in respect of CCL and at the rate of 18.05% p.a. with monthly of MTL, both to start from the date of filing of the OA till their ving regards to Sec. 19(20) of the RDDB Act (w analo -*.. gou"slto Sec. 34 of Civil

Procedure Code, 1908) the contract comes to an end on the filing of the awarding pendente lite and charged by banks for similar will be served if the rate in 1S interest basis for both the and Defendants the has discretion in the rate of interest opinion that interest of justice the rate of 12.00% p.a. on simPle Original Application is being allowed and In the light of Order passed

ORDER

(i)

(ii) There shall be a Decree in favour of the Applicant as under - (u) For Rs. 28,51.,82'L/32 (Rupees Twenty Eight lacs Filty One thousand Eight hundred and Twenty One and paiseThirty Two only) alongwith future interest at the rate of 12.00% per annum (on simple interest basis) from the following terms. '?;)*ir. 'V, xr't'{:,:,. 'i 'iat. ',:.4.'i. This Original Application is allor,r,ed with costs and decree to be issued on the terms set out below;

Order TOA 5 19 of 2018 (Ex-parte)(Final) date of filing of the Original Application till the date of realisation in respect of Cash Credit Limit ("Decreed Amount for CCL"); (b) For Rs. 60,43,615/50 (Rupees Sixty lacs Forty Three thousand Six hundred and Fifteen and paise Fifty only) alongwith future interest at the rate of 12.00% per annum (on simple interest basis) from the date of filing of the Original Application tillthe date of realisation in respect of Medium Term Loan ("Decreed Amount for MTL");

(iii) Defendant No. 1 Firm, the Borrower, and Defendant No. 2 of Defendant No. 1 Firm and Guarantors, are ordered estates of attache (i") to and severally, to the Applicant within a period the Decreed Amount for CCL and, in the event of the said to pay and discharge the dues as directed or in the event of AS security for the Cash Credit Limit (covered by attached / taken possession of ble assets charged) be extent of realising the dues / shortfall, as the case may and ent of further shortfall, the said Defendants be proc by way of personal decree and business assets No. 1 Firm and personal assets / d and sold for realising the dues / shortfall, as the Borrower, and Defendant No. 2 and 3, the Partners L Firm and Guarantors, are ordered to pay, jointly and Applican! within a period of 30 days, the Decreed Amount for in the event of the said Defendants failing to pay and discharge the dues as directed or in the event of shortfall, the assets forming security for the Medium Term Loan (covered by Exh "71" being the moveable assets charged) be attached / taken possession of and be sold to the extent of realising the dues f shortfall, as the case may be, and in the event of further shortfall, the said Defendants be proceeded against personally by way of personal decree and business assets / other assets of Defendant No. 1 Firm and personal assets / to the MTL and,

OrderTOA 519 of 2018 (Ex-par1e)(Final) estates of Defendant No. 2 and.3 be attached and sold for realising the dues / shortfall, as the case may be; (") Based on the Original Documents placed before this Tribunal, supported by the pleadings, it is Declared that there is a valid, subsisting and enforceable hypothecaaon / charge on the moveable assets of the Defendant No. 1 Firm, the Borrower, as per Exh "!\" in favour of the Applicant Cash Credit Limit and Medium Term Loan; ("i) Defendant No. 2 and 3 are directed to declare, on oath, to the Debts Recovery Tribunal - III, Mumbai, both the ble assets the Defendant No. 1 Firm, of theirs as also Defendant No. 2 and 3, are directed to declare, on oath, Defendant No. 1 Firm for the Clause (iii) and / or Clause (iv) a

(vii) Defendant No. 1 to 3 are Ex1n "11" artd manner w Clause (ii)

(viii) In to ble assets of sale as directed under with the assets described in oath as per Clause (vi) above in anY lete recovery of Decreed Amounts under Order under Clause (vii) above, Defendant No. 2 is with his Flat being Flat No. 1002, 10u' Floor, Tower No' Jogeshwari - Vikhroli Link Road, Andheri (East), M m any manner whatsoever till the complete recovery of Decreed Amounts under Clause (ii)above; (i") In addition to the Injunction Order under Clause (vii) above, Defendant No. 3 is injuncted from dealing with his Flat being Flat No. B-11, First Floor, Trishul cHS Ltd., Mahakali Caves Road, Andheri (East), Mumbai in any manner the

Order TOA 519 ol20 l8 (Ex-par1e)(Final) whatsoever till the complete recovery of Decreed Amounts under Clause (ii) above; (*) Recovery Certificates be issued forthwith as pel above decrees and sent to the Recovery Officer, Debts Recovery Tribunal - III' Mumbai; (*i) Parties are directed to appear before the Recovery Officer, Recovery Tribunal - III, Mumbai;

(xii) Copies of final order be sent to all to records' (Pronounced in oPen Court) Dated . 4ttJuly 2019 concerned free of cost and File TS Presiding Recovery Tribunal - I[, Mumbai.