STATE BANK OF INDIA vs MRS MEENA GANESH JADHAV on 9 August 2019

1. Mrs. Meena Prop. :M/s. Residing at (Prop. Concern) ) GP

o. 76,IlissaNo. 1, At Wada, Dist: Thane At Pali, Post: Posheri, : Thane - 421303

2. Mr Namdev Jadhav,

3. Mr. Satish Namdev Jadhav,

4. Smt. Pramila Namdev Jadhav, Def 2to 4 Residins at G P House No. 388, At Pali, Post: Posheri, Tal: Wada, Dist: Thane - 421,303 ) ) ) ) ) ) ) ) ) ) ) ) ) )') )

I Order TOA 8 of 201 8 (Ex-parte)(Final) Present Shri. Sachin A Koli, Advocate, Counsel for Applicant Bank Defendants remained 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 aggrega$rrg to Rs. 23,93,557 /69 (RuPees Twenty Three lacs Ninety Three thousand Five hundred and and paise sixty Nine only) in respect of the credit facility mentioned in cost, charges, pendente lite fiftluLre interest as stated therein from the this OA till its realisation. ;*, dffip Parties Applicant is a Bank within Sec. 2(d) of the and of credit facility to Defendant No. 1. Defendant No. 1 is the Sole Proprietary Firm carrying on business under the name Suraj Service Station ("the Firm") and availed credit facility the Firm and the credit facility was additionally secured tee of Defendant No. 2 to 4. Defendant No '1,,3 and 4 also on their immoveable property (as detailed below) t facilitv

1. (u) on being approached by Defendant No. 1, Applicant provided Cash acility of Rs. 7,0o,ooo/- to Defendant No. L for meeting the operations of the Firm based on the documentation and security creation by Defendant No. 1, who executed all documents and created all securities for and on behalf of and in the name of the Firm. Defendant No. 2 to 4 provided additional security by way of personal guarantee for the said facility. Defendant No' 1' 3 and.4, as security for the facrllty, mortgaged their immoveable property being ir. S.

J Order TOA 8 of 2018 (Ex-parte)(Final) G P House No. 602, Gat No. 76,Hissa No. 1, in Pali, Post Posheri in Taluk Wada in District Thane ("the said Asset") by way of Registered Deed of Mortgage which got registered with SRQ Bhiwandi- 2.

(b) As per furthel averment in the OA, on the request of Defendant No. 1, Applicant enhanced the Cash Credit Facility of Rs. 7,00,000/- to Rs. 15,00,000/- (enhanced facility of Rs. 15,OO,OOO/- is hereinafter referred to as "CCF") and provided the same to the Firm based on the documenta securitv creation by DefendantL, who executed all documents and for the CCF for and on behalf of and in the name of the o.2 to 4 provided additional securi$ by way of guarantee CCF Defendant No. 1-, 3 and 4, as security for executed Supplemental Registered Deed of Mortgage in respect which got registered with SRO, Bhiwandi - 2.

(c) As per OA, the operation of satisfactory and there was failure on the part of necessary information and statements as to the further averred that in spite of several requests of the No. 1 did not regularise the account of CCF consequently got classified as Non- Recall Notice to all the Defendants, tstanding amount of the CCF and, on ,OA has been filed. Performing calling upon to repay, the itself of the OA being within limitation and falling jurisdiction as per RDDB Act, ordered issue of Summons to (b) Summons to the Defendants wele sent by Registered Post with Acknowledgement Due. Postal covers to Defendant No. 1, 2 and 4 got served and Acknowledgement Due Cards received back. As regards Defendant No. 3, service through post could not be completed and, on the application made by Applicant Tribunal allowed substituted service through newspaper publication, which was carried out. Applicant filed Service Affidavit. entire ou the

2. iissued 'q1ceF

Order TOA 8 of 2018 (Ex-partexFinal)

(c) As Defendants did not appear either in person or through advocate and file Written Statements, the Defendants were set ex-parte on 20/03/2019 by an Order of the Tribunal. Proceedings :

3. As directed by the Tribunal, Applicant filed, through Mr. Padmakar Deshpande, Manager at Stressed Assets Recovery Branch, Affidavit enclosing various Documents as Annexures (which have by the Tribunal and marked as "Exhibits") and also filed Account together with Information T Act, 2000 under Bankers Books of Evidence Act, 1891, record tof as Exhibit "28"). Of the Documents filed Tribunal, the following are found dispose of the OA on merit. tes are marked and gone through by the to consider and the Exhibit r,,,,Document S. No ,r19il of Arrangement for Rs. /- (Office Copy) tietter ,;r.fi ;sgp ,r19il ffit of Loan-cum-HYPothecation for Rs. 200,000/- (Original) ,r20r, Personal Guarantee of Def 2 to 4 i/r of Rs. 200,000/- (Original)

2. ,r21r, Deed of Mortgage by Def 1.,3 & 4 i/t of their immoveable property (Regd with SRO, Bhiwandi-2) securing Rs. 7,00,000/ - (Original) "22" Letter of Arrangement for Rs 15,00,000 / - (Office Copy) ,r23r, Cash Credit F Cash Credit Facility Enhanced to (Rs. 15,00,000/-) n

(Rs.7 Agreement for overall limit of Rs. 15,00,000 / - (Original) *3*,."

Order TOA 8 of 2018 (Ex-partexFinal) Observation on Evidences provided& C1aim

4. The Statement of Account filed by the A as per Bankers Books of Evidence Act, 189'1., talTied with oA. ; the case of the Applicant is based on the above referred Exhibits) filed alongwith Claim is a sworn Statement, which & has gone unchallenged as thE ex-parte. Ir,, -y view, there is no question of ts and Claim Affidavit and other evidences let in Applicant has proved its case beyond reasonable of sanctioning the CCF, comPleting documenta / drawl out of the CCF. interest at the rate of 15.20% p.a. with monthly rests of the OA till its realisation. Having regards to Sec. 19(20) (which is analogous to Sec. 34 of Civil Procedure Code, 1908) the act between the Applicant and Defendants comes to an end on the filirg of the OA. Thus the Tribunal has discretion in awardingpendente 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 12.00% p.a. on simple interest basis

,r24r, Agmt of Hypothecation for Rs. 15,00,000/ - (Original) ZJ Personal Guarantee of Def 2to 4i/r of Rs. 15,00,000/- (Original) :i=i. rt ".)r7tt ,r26r, Deed of Further Mortgage bY Def 1',3 &. 4 i/r of their immoveable property (Regd with SRO, Bhiw additional Rs. 8,00,000/- Recall Notice (Office Copy)

Order TOA 8 of 201 8 (Ex-partexFinal)

6. In the light of above discussions, the Original Application is being allowed and Order passed on the following terms.

ORDER

(i) This Original Application is allowed with costs and decree to be issued on the terms set out below;

(ii) There shall be a Decree in favour of the Applicant for Rs. 23, Twenty Three lacs Ninety Three thousand Five hundred and and paise Sixty Nine only) alongwith future the rate of:,:,,12.00% per annum Original Application till (on simple interest basis) from the the date of realisation in respect of CCF"); F Amount for Service Station ("the Firm") (for as sole proprietor, borrowed), date (iir) Defendant No. the operation Defendant No. 1 ("the of which N 1., ), and Defendant No. 1, 3 and 4, the Mortgagors, are y and severally, to the Applicant, within a period of Amount for CCF and, in the event of the said Defendant No. 2 to 4 failing to pay and discharge or in the event of shortfall, the assets forming security for (covered by Exh "24" being the moveable assets "21" read with Exh "26" being the immoveable property by the Defendant No. 1, 3 and 4) 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 Defendant No. 1, the Firm, Defendant No. 2 to 4 be proceeded against personally by way of personal decree and business assets / other assets of the Firm and personal assets / estates of Defendant No. 1, to 4 be attached and sold for realising the dues / shortfall, as the case may be;

Order TOA 8 of 2018 (Ex-parte)(Fina1)

(iv) Based on the Original Documents placed before this Tribunal supported by the pleadings, it is Declared that there is a valid, subsisting and enforceable hypothecation / charge on the moveable assets of M/s. Suraj Service Station ("the Ffum"), which were charged by Defendant No. 1 as Sole Proprietress, as per Exh "24" it'L favour of the Applicant validly securing the Cash Credit Facility; (") Based on the Original Documents placed before this by the pleadings, it is Declared that there is a valid, subsisting mortgage over the immoveable properties described it:.Bx}:."2l" Exh "26" in favour of the Applicant validly Cash Credit Facility; ("i) Defendant No. 1 to 4 are directed to the Recovery Officer, Debts Recovery Tribunal - III, and immoveable assets on oath, both moveable of theirs as also Defendant No. 1 *. and immoveable assets of WI re Station ("the Firm") of which S Defendant No. 1 is the the purpose of attachment and sale as directed

(vii) Defendant N Suraj Service Station ("the Firm") are injuncted from described in Exh "14" arrdExh"2l" read with Exh on oath as per Clause (vi) above in any mallner complete recovery of Decreed Amount under Clause (ii)

(viii) Recovery Certificate be issued forthwith as per above decree and sent to the Recovery Officer, Debts Recovery Tribunal * III, Mumbai; (i") Parties are directed to appear before the Recovery Officer, Debts Recovery Tribunal - III, Mumbai;

Order TOA 8 of 2018 (Ex-parte)(Fina1) (*) Copies of final order be sent to all concerned free of cost and File be consigned to records. Presiding Debts Recovery Tribunal - Mumbai. (Pronounced in open Court) Dated : 9th August 2019 q&,.