BANK OF BARODA vs KALABAI on 27 June 2019

1. Smt. Kalabai Balasaheb Deshmukh, 19/ A, Haste Dumala, Tal: Dist: Nashik. Pin :422202

2. Mr. Baiasaheb Village Haste Dist: Nashik. ) ) ) ) ) ) ) ) )

3. Mr Defendant No. 3 Barde, Advocate, i/b}dV Kini & Co., Counsel for Applicant Defendants rerr"rained ex-parte This Original Application (OA) is filed by Applicant under Section 19 of the Recovery of Debts Due to Banks and Financial lnstitutions Act, 1993 ("RDDB Act") (since changed to "Recovery of Debts and Bankruptcy Act, 1993") against the Defendants for the recovery of a sum aggregating to Rs. 33,31,,100/- (Rupees Thirty Three lacs Thirty One thousand and One hundred only) in respect of the various n Order TOA l87l of 2016 (Ex-parte)(Fina1) credit facilities mentioned in the OA alongwith cost, charges, pendente lite futare interest as stated therein from the date of filing of this OA tilt their realisation. Parties : Applicant is a "Bank" within Sec. 2(d) of the RDDB Act and lender of the credit facilities to Defendant No: 1 for which Defendant No. 2 and 3 provided their personal guarantee as additional security. Factual matrix

1. (a) As per OA, Applicant provided Crop Loan of Rs. 91,000/- (,,CL" Term Loan (for Land Levelling) of Rs. 1-,38,000/- L") and Rupee Term Loan (for Grape Plantation) of Rs. 14,24,000/ - Defendant No. 1 based on the documentation and security crea for ve credit facilities besides executing Declaration ashtra Provision of Facilities for Agricultural Credit in respect of her agricultural lands located in Gat No. 27 ofV Dumala in Taluk Dindori in District Nashik and got with SRO, Dindori. Defendant No. 3and4 as additional security for the respective credit facilities.

(b) As per OA, 1 failed to maintain the accounts for the Credit Facilities and conditions of sanction and also failed to in spite of repeated requests and reminders. Because of tion, the accounts of the Credit Facilities got Non-Performing Asset. Applicant also issued Recall Notice dvocate to all the Defendants, calling upon them to repay the entire outstanding amounts of the Credit Facilities. On the failure of the Defendants 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 Summons to its A the Defendants by AS

J Order TOA I 871 o1'20 l6 (Ex-parte)(Final) Order of the Tribunal. Proceedings :

3. As directed by the Tribunal, Applicant filed, Ms. Manager, Claim Affidavit enclosing various (which have been taken on record by the as "Exhibits") and also filed Certified Statement of Certificates under Bankers Books of Evidence Exhibit "34' &. "35").Of the the Tribunaf the following dispose of the OA on (which are marked as and gone through by for the Tribunal to consider and S. No. Facili-ry"',lrtrtl...1... .. Document i {sa l"r--"-.r Exhibit Sanction Letter (Common) (Office Copy) ,r12r, D P Note for CL (Original) ,r13r, Comp. Hypothecation Agreement for CL (Original) ,r15r, Per. Guarantee of Def 2 & 3 for CL (Original) '16' Letter of Ack of Debt for CL (Original) ,r1gu D P Note for RTL-1 (Original) ,r1gr, '1". 14,24,000/ -)

1. erm /-) Loan-2 ,r21r, Comp. Hypothecation Agreement foi RTL - 1 (Original)

(b) Summons to the Defendants were sent by Registered Post with Acknowledgement Due which got delivered on the Defendants and Acknowledgement Due Cards received back. Applicant filed Service Affidavit enclosing the Acknowledgement Due Cards.

(c) As Defendants did not appear either in person or through advocate and file Written Statements, the Defendants were set ex-parte on 21./09/2017 by an * et ffij''

Order TOA 1871 of 2016 (Ex-parte)(Final) Observation on Evidences

4. The Statement of Applican! certified as per Bankers Books of Evidence Act, claim in OA. Further, the case of the Applicant is Documents (including the above referred Exhibits) Affidavit, which is a sworn Statement, which as the Defendants remained ex-parte. In my view, there 1S the Exhibits and Claim Affidavit and other the Applicant and the Applicant has proved its case beyond doubt to the extent of sanctioning the Credit Facilities, completing ticrn and disbursal / drawl out of the Credit Facilities. The Applicant has claimed interest at the rate of 12.00% p.a. in respect of CL with half-yearly rests and at the rate of 13.25% p.a. in respect of RTL-1 and RTL-2 with half-yearly rests and penal interest at the rate of 2.OO% p.a' on simple interest basis for all the facilities all interests conunencing from the date

,r22r, Per. Guarantee of Def 2 & 3 for RTL-1 (Original) ,r24r, Letter of Ack of Debt for RTL-1 (Original) /_J D P Note for RTL-2 (Original) ,r27r, Comp. Hypothecation Agreement for RTL - 2 (Original) ,a,,,. "28" 'rti ii..tir,. 'i r';:: tl30't Per. Guarantee of Def 2 &. (Original) Letter of Ack oJ Debt for (Original) ,r31r, 1 t/r of (Regd her ) Def JJ Recall Notice (Office Copy)

Order -lOA I 871 of 2016 (Ex-partc)(Final) of filing of the OA till its realisation. Having regards to Sec. 19(20) of the RDDB Act (which is analogous to Sec. 34 of Civil Procedure Code, 1908) the conkact between the Applicant and Defendants comes to an end on the filing of the OA. Thus the Tribunal has discretion in awarding pendente lite and future interest. Considering the rate of interest charged by banks for similar facilities, I am of the opinion that interest of justice will be served if the rate interest is awarded at the rate of 10.00% p'a. on simple interest basis for CL the rate of 12.00% p.a. on simple interest basis for both RTL-1 and

6. In the light of above discussions, the Original lication is bein d and Order passed on the following terms W

(r) This Original Application is decree to be issued on the terms set out below; (i0 There shall be a Applicant as under -

(u) For Rs. Twenty Seven thousand Three hundred and future interest at the rate of 10'00% per interest basis) from the date of filing of the Original the date of realisation in respect of Crop Loan ("Decreed lor CL"); (b) For Rs. 2,79,'1.61./- (Rupees Two lacs Seventy Nine thousand one hundred and Sixty One only) alongwith future interest at the rate of 12.00% pet annum (on simple interest basis) from the date of filing of the Original Application till the date of realisation in respect of Rupee Term Loan - 1 ("Decreed Amount for RTL-1"); hf *ie 1ii::rt Jlii

\

OrderTOA l87l of 2016 (Ex-parte)(Final) (.) For Rs. 30,24,557 /- (Rupees Thirty lacs Twenty Four thousand Five hundred and Fifty Seven only) alongwith future interest at the tate of 72o/o per annum (on simple interest basis) from the date of filing of the original Application tilI the date of realisation in respect of Rupee Term Loan - 2 ("Decreed Amount for RTL-2"); (ii| Defendant No. 1, the Borrowet, and Defendant No, 2 and 3, the ordered to pay, joi.,tly and severally, to the Applicant days, the Decreed Amount for CL and, in the event of the event by Exh are of 30 the "15" being the failing to pay and discharge the dues as directed or in assets forming security for the Crop Loan moveable assets charged & Exh mortgaged) be attached / taken P realising the dues / shortfall, immoveable ProPerties and sold to the extent of in the event of further personally by waY of assets / estates of Defendant t No. 2 and 3 be attached and AS ,r31r, of shortfall, the said Defendants personal d.ecree and business No. 1 and personal assets sold for realising the case may be; (i") Defendant N , and Defendant No. 2 and 3, the Guarantors, are ordered severally, to the Applicant, within a period of 30 for RTL-1 and, in the event of the said Defendants the dues as directed or in the event of shortfall, the security for the Rupee Term Loan - 1 (covered by Exh "21" moveable assets charged & Exh "31" being the immoveable properties mortgaged) be attached. / taken possession of and be sold to the extent of realising the dues / 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 / personal assets / estates of Defendant No. 1 and personal assets / estates of Defendant No. 2 and 3 be attached and sold for realising the dues f shortfalJ,, as the case may be; s10n i! Ordel TOA 1871 of 2016 (Ex-parte)(Final) (") Defendant No. 1, the Borrower, and Defendant No. 2 and 3, the Guarantors, are ordered to payt jointly and severally, to the Applicant, within a period of 30 days, the Decreed Amount for RTL - 2 and., in the event of the said Defendants failing to pay and discharge the dues as directed or in the event of shorffaII, the assets forming security for the Rupee Term Loan - 2 (covered by Exh "27" being the moveable assets charged & Exh "3\" being the immoveable properties mortgaged) be attached / taken possession of sold to the extent of realising the dues / shortfall, as the case may event of further shortfall, the said Defendants be proceeded against of personal decree and business assets / assets / estates No. L and personal assets / estates of sold for realising the dues / shortfall, as ("i) Based on the Original Documen pleadings, it is Declared that hypothecatton / Borrower, as per charge validly securing ).

(vii) Based on p it a. No.2 be attached and supported by the subsisting and enforceable of the Defendant No. 1, the xh "27" in favour of the Applicant .,l&n andffi on Exh "15 Term Loan - 1 and Rupee Term Loan - placed before this Tribunal, supported by the that there is a valid, subsisting and enforceable immoveable properties described in Exh "31" it'L favour of validly securing the Crop Loan, Rupee Term Loan - 1 and Rupee T

(viii) Defendant No, 1 to 3 are directed to declare, on oath, to the Recovery Officer, Debts Recovery Tribunal - III, Mumbai, both moveable and immoveable assets . of theirs as also Defendant No. 1 is directed to declare, on oath, both moveable and immoveable assets of the business(es) carried on by her for the purpose of 1S

-'\rt r\

Order TOA l87l of 2016 (Ex-parte)(Final) attachment and sale as directed under Clause (iii) and f or Clause (iv) and / or Clause (v) above; (i*) Defendant No. 1 to 3 are injuncted from dealing with the assets described in F,xh"15",Exh"21" and Exh "27" as also Exh "31" as also assets declared on oath as per Clause (viii) above in any manner whatsoever till the complete recovery of Decreed Amounts under Clause (ii) above; (*) Recovery Certificates be issued forthwith as per above the Recovery Officer, Debts Recovery Tribunal - III, Mumbai; (*i) Parties are directed to appear before Officer, Debts Recovery Tribunal - III, Mumbai;

(xii) Copies of final order be sent to of cost and File be consigned to records. & S Presiding Officer, Debts Recovery Tribunal - III, Mumbai. (Pronounced in Dated