BANK OF MAHARASHTRA vs SHRI.SHIVMILAN RAMRAJ SINGH AND ORS on 9 July 2019

1. (a) As per OA, APPlicant 33,!5,000/- ("RTL") as Bungalow in Plot No. 40 and District N ( the documentation provided

(b) RTL was Rupee Term Loan of Rs. purpose of construction of No.76/1. in Village Deolali, Taluk the name of Defendant No. 2) based on by the Borrowers.Defendant No. 3 additional securitY for the RTL. by the mortgage by Defendant No. 2 in respect of basis. Defendant No facilitv. No. l and above together with buildings and structures thereon constructed thereon out of the RTL, both present and was created by way of Mortgage by Deposit of Title Deeds by No.2.

(c) As per OA, the Borrowers did not care to repay the RTL as per the agreed terms and conditions and failed and neglected to observe the terms and conditions of RTL Defendant No. 3 also did not care to fulfil his undertaking and guarantee as promised under the Guarantee executed by him. Applicant accordingly issued Recall Notice to all the Defendants, calling upon them to repay the entire the t. J Order OA 97 ol 201 7 (Ex-partexFinal) outstanding amounts of the RTL. On the Defendants failing to repay' the OA has been filed.

2. (a)Tribunal, after satisfying itself of the oA being within limitation and falling within its territorial jurisdiction as per RDDB Act, ordered issue of sumrnons to the Defendants.

(b) Summons to the Defendants were sent by Re Acknowledgement Due. Postal cover sent to undelivered with postal endorsement "Refused"' As per is deemed to have

J OI Post with )of as per Regulations of Practice 2010, the Service Postal covers sent to Defendant No' Acknowledgement Due Card received Download from Postal Site in Service Affidavit. As Defendants did not aPPear Written Statements, the Defendant No. 2 and

o. 3. Applicant filed through advocate and file ex-parte on 19/01,/2018 bY an (.) Proceedings:

3. As directed Patil, are ( pplicant filed, through Shri. Vikrant Kamalakar Affidavit enclosing various Documents as been taken on record by the Tribunal and marked as filed. Certified Statement of Account together with the er Bankers Books of Evidence Act, 1891,, as Annexures (which as Exhibit "g6"& "40").Applicant also filed Pursis (Exh"41") enclosing 2 Original Title Deeds pertaining to the immoveable properties mortgaged which were also taken and marked as Exhibits. of the Documents filed as Exhibits and gone through by the Tribunal, the following are found relevant for the Tribunal to consider and dispose of the oA on merit' In Order of the Tribunal'

Order OA 97 of 2017 (Ex-parte)(Final) Evidences provided& Claim made:

4. The Statement of Account filed by the Applicant, certified as per Bankers Books of Evidence Act, 1891 filed with C1aim Affidavit, 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 Statemenf which has gone unchallenged, as the Defendants remained ex-parte. S. No. Facility Document Exhibit ,r70r, Sanction Letter (Office Copy) Agreement for Housing Loan (Or1) "1_4" Demand Promissory Note (Original) ,r13r, Personal Guarantee of Def 3 (Original) ,r29il ,r30r, *t -?I .rillli! Declrr of Def 2 i/r of properties to be mortgaged Affidavit of Def 2 i/ r of properties to be mortgaged Agreement for.Sale i/f of Dof-2 i/r of PIot No. a0 (Regd with SRO, Nashik) (Original) ,r42r, Sale i/ f of Def 2 i/ r of o.4 with sRo, Nashik) ,r44r, Memo of Entry recorded by Applicant i/r of mortgage transaction con'rpleted (Original) cz Confmn Letter of Def 2 i/r of deposit of title deeds of immoveable properties mortgaged (Original) JJ

Rupee Term Loan (Rs. 33,15,000/-) Recall Notice (Office Copy) ,r40r, lnil iSlt .t#

Order OA 97 of 2017 (Ex-parte)(Final) 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 RTL, completing documentation and allowing drawl out of the RTL'

The Applicant has claimed interest at the rate of 10.95% p.a. with monthly rests and penal interest at the rate of 2.00% p.a. on simple interest from the date of filing of the OA till its realisation. Having re of the RDDB Act (which is analogous to Sec. 34 of Civil Procedure the contract between the Applicant and Defendants comes to an end of the OA. Thus the Tribunal has discretion in pen'dintelite and future interest. Considering the rate of interest d for similar facility, I am of the opinion that interest of if the rate interest is awarded at the rate of 10.00% p.

6. In the light of above Order passed on the the Application is being allowed and (0 rhis allowed with costs and decree to be issued on the

(ii) a Decree in favour of the Applicant for Rs. 43,04,225/- (Rupees lacs Four thousand Two hundred and Twenty Five only) from the date of filing of the OA till the date of realisation in respect of Rupee Term Loan ("Decreed Amount for RTL");

(iii) Defendant No. L and 2., the Borrowers, and Defendant No. 3, the Guarantor, ate ordered to pay, jointly and severally, to the Applicant, within a period of 30 ER days, the Decreed Amount for RTL and, in the event of the said Defendants

Order OA 97 of 2017 (Ex-parte)(l-'inal) failing to pay and discharge the dues as directed or in the event of shortfall, the asset forming security for the Rupee Term Loan (covered by Exh "42" & Exh "44" beirtg the immoveable properties mortgaged) be attached / taken possession of and be sold and, after paying and satisfying the Decreed Amount for RTL or the shortfall, as the case may be, the surplus be returned and paid to Defendant No. 2. Contrarily, in the event of further shortfall, the said Defendants be proceeded against personally by way of p decree and business assets / personal assets / estates of 2 and personal assets / estates of Defendant No. 3 be attached the dues / shortfa[ as the case may be;

(iv) Based on the Original Documents placed supported by the and enforceable pleadings, it is Declared that there mortgage over the immoveable Exh"42" andExh"A4" in favour of the Applicant v ee Term Loan; (") Defendant No. 1 to 3are on oath, to the Recovery Officer, SU Debts Recovery oftheirs as also moveable joint$ or a ,r42r, both moveable and immoveable assets 2 are directed to declare, on oath, both of the business(es) carried on by them either purpose of attachment and sale as directed under ("i) 1 to 3are injuncted from dealing with the assets described in Exh 44" as also assets declared on oath as per Clause (v) above in any manner whatsoever till the complete recovery of Decreed Amount under C1ause (ii) above;

(vii) Recovery Certificate be issued forthwith as per above decree and sent to the Recovery Officer, Debts Recovery Tribunal - III, Mumbai; a .t

.t

Order OA 97 of 2017 (Ex-parte)(Fina1)

(viii) Parties are directed to appear before the Recovery Officer, Debts Recovery Tribunal - III, Mumbai; (i*) Copies of final order be sent to all concerned free of cost and File be consigned to records. S Debts

- III, (Pronounced in open Court) Dated .)*July 2019 .*&+ rW