BANK OF MAHARASHTRA vs 1. MRS. YASHODA KAMLAKAR RAUT on 1 October 2019

1. Mrs. Yashoda Kamlakar Rau! R/a: House No.384, Talyacha Pada, Dist: Palghar. Pin Defendant No. 1

2. Mr. Kamlakar R/ a: House T t Virar (East), Defendant No. 2 aJ. Raut, 384, Khardi Koshimbe, Tal Post: Dahisar, Virar (East), Dist: . Pin: 401,303 Defendant No.3 Present: Mr. 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 Institutions Act,1993 ('RDDB Act") (since changed to "Recovery of Debts and Bankruptcy Act, 1993") against the ) ) atisa. "[i::!i:r W ) ) ) ) ) ) ) ) ) ) ) ) rQ-n )

Defendants for the recovery of a sum aggregating to Rs. 'i,2,76,202/- (Rupees Twelve lacs Seventy Six thousand Three hundred and Two only) in respect of the credit facility mentioned in the OA alongwith cos! charges, pendente lite future interest as stated therein from the date of filing of this oA till its realisation. Parties : Applicant is a "Bank" within Sec. 2(d) of the RDDB Act and lender t facility to Defendant No. 1. Defendant No. 1 is carrying on business availed credit facility from the Applicant for their personal guarantee as additional securi Factual matrix :

1. (a) As per OA, Applicant 15,00,000/- ("RTL") for Tools after Defendant N therefor and additional

(b) Defendant N House G) were and 3 provided No. 1", a Term Loan of Rs. Manufacturing Equipments and of brick she ffi, I"{#H. 2 tion and security creation providing their personal guarantee as mortgage on her immoveable property being 64, Hissa No. 10 in Village Khardi Koshimbe in District Thane as security for RTL by executing which got registered with SRO, Vasai. operation of the RTL Account was not satisfactory and there in payment of instalments in respect of RTL on due dates. It is further averred that in spite of several requests by the Applicant, Defendant No. L, failed to pay overdue amounts and regularise the account of the RTL, Hence the account got classified as Non-Performing Asset and Applicant initiated recovery action against the Defendants by issuing Recall Notice through its Advocate calling upon all the Defendants to repay the entire { J

outstanding amount of the RTL. 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 falting within its territorial jurisdiction as per RDDB Act, ordered issue of Summons to the Defendants.

(b) On the OA getting transferred to this Tribunal, Transfer N the Defendants by Registered Post with could not be effected. Flence, on an application made Tribunal allowed substituted service through per publica sent to service was carried out by the Applicant and Service Affi filed.

(c) As Defendants did not appear either in or ex- advocate and did not on 07 /12/ 2018 by an file Written Statements, the Order of the Tribunal. Eroceedings:

3. As directed by the Manager (Law), (which have been and also under through Mrs. Kavita Thattil, Senior various Documents as Annexures by the Tribunal and marked as "Exhibits") of Account together with the Certificates 4ct,189L, as Annexures (which are marked Of the Documents filed as Exhibits and gone through following are found relevant for the Tribunal to consider the OA on merit. AS

Observation Order TOA 2095 of 2016 (Ex-parte)(Final) Claim made: filed by the Applicant, certified as per Bankers Books as factored by amount recovered as declared in the with claim in OA- Further, the case of the Applicant is t, tallied various Documents (including the above referred Exhibits) filed alongwith Claim Affidavit, which is a sworn Statement, which has gone unchallenged as the Defendants did not participate in the Tribunal proceedings and remained ex-Parte' In mY view' there is no question of disbelieving the Exhibits and Claim Affidavit and other evid.ences let in by the Applicant and the Applicant has proved its case beyond reasonable doubt to the extent of sanctioning the RTL, completing documentation Exhibit Document Facility S. No "l3u Sanction Letter (office CoPY) ,r16r, Demand PromissorY -te (original) N ,r17r, Hypothecation of Comp. Deed (Original) ,r18r, Personal Guarantee Def2&3 of (Original) ,r19r, Disbursement (Ori ginal) Stamped ReceiPt ,r20r, Stamped Disbursemen forN ,r21r, Stamped for RTL ,r14r, ,byDefl with SRO, (Regd ) '22',t Confirmation SecuritY Original) '23t Notice (Office copy) Rupee Term Loan (Rs. 15,00,000/-) N

o and d.isbursement of the RTL' I

The Applicant has claimed interest at the rate of 11.20% p.a. with monthly rests in respect of the RTL from the date 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 contract between the Appticant 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 facility, I am of the opinion that of justice will be served if the rate interest is awarded at the rate of interest basis. simple

6. In the light of above discussions, the Order passed on the following terms

(i) This Original Application terms set out below;

(iii) tion is being allowed and and decree to be issued on the

(ii) There shall be a the Applicant for Rs.12,76,302/- (Rupees Twelve lacs Three hundred and Two only) alongwith future 11.00% per annum (on simple interest basis) from Original Application till the date of realisation in respect ("Decreed Amount for RTL"); No. 1, the Borrower, and Defendant No. 2 and 3, the Guarantors, are ordered to pay, jointly and severally, to the Applicant, within a period of 30 days, the Decreed Amount for RTL and, 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 Rupee Term Loan (covered by Exh "17" being the moveable assets charged & Exh "'!.4" beine the immoveable property mortgaged) b" attached / taken possession of and be sold to the extent of / O p.KG

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 / shortfall, as the case may be; (i") Based on the Original Documents placed before this Tribunal, s by the pleadings, it is Declared that there is a valid, hypothecation / charge on the moveable assets of the the Borrower, as per Exh"17" in favour of the A t validly Term Loan; (") Based on the Original Documents this supported by the and enforceable pleadings, it is Declared that mortgage over the immoveable in Exh "'1,4" in favour of the Applicant validly securing :ft ("i) Defendant No. 1

on oath, to the Recovery Officer, Debts Recovery bai, both moveable and immoveable assets of theirs as L is directed to declare, on oath, both moveable and business(es) carried on by her for the purpose of a directed under Clause (iii) above;

(vii) L to 3 are injuncted from dealing with the assets described in Exh and Exh "1-4" as also assets declared on oath as per Clause (vi) above in any manner whatsoever till the complete recovery of Decreed Amount under Clause (ii) above;

(viii) Recovery Certificate be issued forthwith as per above decree and sent to the Recovery Officer, Debts Recovery Tribunal - III, Mumbai; C

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

- ilI, (Pronounced in open Court) Dated : 1't October 2019 ........ .s\\\\N" '\\\x*-