CENTRAL BANK OF INDIA vs MR DAULAT RAMCHANDRA SHELKE on 7 October 2019

1. Mr. Daulat Ramchandra Shelke, Post : Bahaduri, Taluk : Chandwad District :Nashik. PiR : 422 005

2. Mr. Haribhau Shank-a r Holkar Post : Bahaduri, Taluk : Ch a District : Nashik. Pin : 4210

3. Mr. RA1111%11 Post : Bahaduri, T District : hram Jadhav, Chandwad. n : 422 005 Presented on : 24/09/2015 Registered on : 24/06/2016 Transferred on : 03/10/2016 Decided on : 07/10/2019 Duration :13(D)/03(M)/03(Y) IN THE DEBTS RECOVERY TRIBUNAL - III AT MUMBAI DATED THIS 7th DAY OF OCTOBER 2019 PRESENT : SHRI. T S ASOKRAJ PRESIDING OFFICER T 0 A No. 1723 of 2016 Central Bank of India, ) a body corporate under the Banking Companies ) (Acquisition and Transfer of Undertakings) Act, 1970 ) and having its Head Office at "Chander Mukhi", ) Nariman Point, Mumbai - 400 021 and one of it ) branches situated at Pimpalgaon (Baswant), ) Niphad, Dist : Nashik. Pin : 422 009 through' Branch Manager VERSUS Defendant No. 1 Defendant No. 2 Defendant No. 3 Present . Shri. J K Naik, 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 Defendants for the recovery of a sum aggregating to Rs. 28,63,568/- (Rupees Twenty Eight lacs Sixty Three thousand Five hundred and Sixty Eight only) in respect of the various credit facilities mentioned in the OA alongwith cost, 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 of credit facilities to Defendant No. 1, an agriculturist by occupation, and Defendant No. 2 and 3 provided their personal guarantee as additional security. Factual matrix :

1. (a) As per OA, Applicant provided Term Loan of Rs. 16,25,000/- ("TL") ana Crop Loan (under CKCC Scheme) of Rs. 4,45,000/- ("CL")(TL an.CLare hereinafter collectively referred to as "the Credit Fa ) to Defendant No. 1 based on the documentation and security crea do by him with Defendant No. 2 and 3 providing personal guarantee asadditiOnal security.

(b) The Credit Facilities were also secured 1)\ :wrtgage security created by Defendant No. 1 who executed Silnple Mortgage Deed in respect of his agricultural land located in Gat 110 and Gat No. 136 in Village Bahaduri in Taluk Chandwad in District Nashiktand the said Simple Mortgage Deed got ; registered with SRO, Chailairod.

(c) As per OA, in spite of 'repeated / several demands made by the Applicant, Defendant No. 1 failed and neglected to pay / repay the outstanding dues in regp t of the Credit Facilities. Applicant, therefore, initiated recovery by issuing Recall Notice, through its Advocate,calling upon all the is to repay the entire outstanding amounts of the Credit Facilities. On thefa g e 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 Defendants.

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

(c) As regards Defendant No. 1, he attended a few times proceedings before Registrar, but not filed Written Statement and, as regards Defendant No. 2 and 3, they neither appeared in person nor through advocate and also did not file Written Statements. Hence, the Tribunal on 19/01/2018 assed an Order directing OA be proceeded and decided against Defendant.1 "Without Written Statement" and against Defendant No. 2 and 3 setting them -parte". Proceedings :

3. As directed by the Tribunal, Applicant fil through Mrs. Soni Kumari, Branch Manager, Claim Affidavit enclosing v sous r=jacuments as Annexures (which have been taken on record by the Tribunes eked as "Exhibits") and also filed Certified Statement of Account together with the Certificates under Bankers Books of Evidenc*Act, 1891, as Annexures (which are marked as Exhibit "22", "23", "24", " 6"). Of the Documents filed as Exhibits and gone through by the Tribul al o lowing are found relevant for the Tribunal n merit. S. No. , F'ci 1 i ty Document Exhibit

1. . <;:, Tenn L( (IL (Rs.16,2 00/-) rop Loan (CL) R 4,45,000/-) Sanction Letter (Office Copy) "12"

D P Note for TL (Original) "13"

D P Note for CL (Original) "14"

Loan-cum-Hypothecation Agreement for TL + CL (Original) "15"

Per. Guarantee of Def 2 & 3for TL + CL (Original) "16"

Mortgage Deed by Def 1 i/r of his Agricultural Lands (Regd with SRO, Chandwad) (Original) "20" to consider and dispose of the proved its case beyond reasonab Facilities, completing documentation he extent of sanctioning the Credit bursement of / drawl out of the Credit Facilities.

17. The Applicant has claimed int at the rate of 13.50% p.a. with yearly rests in

Recall Notice (Office Copy) "21" Observation on Evidences provided& Claim made :

4. The Tribunal notices that the Claim Affidavit carries the mistake in Claim Amount which was there in the OA and which got corrected at the time of registration scrutinisation of OA. Hence the Tribunal is going by the claim under OA (which is a lesser amount on correction). Statement of Account filed by the Applicant, certified as per Bankers Books of Evidence 1891, tallied with claim in OA. Further, the case of the Applicant is bases 1 various Documents (including the above referred Exhibits) filed alongwarr Claim Affidavit, which is a sworn Statement, which has gone tilichallenged as the Defendants did not participate in the proceedings and file Written Statements. In my view, there is no question of disbelieving the Exhibits and Claim Affidavit and other evidences le A) the Applicant and the Applicant has respect of both-t ities of the Credit Facilitiesfrom the date of filing of the OA till its realisati r Y Ha ing regards to Sec. 19(20) of the RDDB Act (which is an ous to Sec. of Civil Procedure Code, 1908) the contract between the and Defendants comes to an end on the filing of the OA.Thus the discretion in awarding pendente lite and future interest. Cons ring 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 for both the facilities.

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 as under - (a) For Rs. 23,42,428/- (Rupees Twenty Three lacs Forty lousand Four hundred and Twenty Eight only) alongwith future inte a e rate of 12.00% per annum (on simple interest basis) from the date o i g of the Original Application till the date of real tion in reject of Term Loan ("Decreed Amount for TL"); (b) For Rs. 5,21,140/- (Rupeeslao Twenty One thousand One hundred Five ..„, and Forty only) alongwith fure interest atthe rate of 12.00% per annum (on simple interestasis) fromthe date of filing of the Original Application till the date,,of realisation in respect of Crop Loan (under CKCC Scheme) ("Decreed 'Amount for CL");

(iii) Defendant No. 1, the Borrower, and Defendant No. 2 and 3, the Guarantors, are ordered to pay, jointh and severally, to the Applicant, within a period of 30 ."‘ clathe Decreed, Amount for TL and, in the event of the said Defendants iatlirig to pay and discharge the dues as directed or in the event of shortfall, the fling security for the Term Loan (covered by Exh "15" being the move assets charged & Exh "20" 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 / shortfall, as the case may be;

(iv) Defendant 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 CL 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 Crop Loan (under CKCC Scheme)(covered by Exh "15" being the moveable assets charged & Exh "20" being the immoveable properties mortgaged) be attached / taken possession of and J?? sold to the extent of realising the dues / shortfall, as the case may bel- arid in the event of further shortfall, the said Defendants be proceeded against peibonall\ bv,way of personal decree and business assets / personal assets / estates "of Defendant No. land personal assets / estates of Defendant No. 2 and 3be attached and sold for realising the dues / shortfall, as the case in, be;

(v) Defendant No. 1 to 3are directed to declare, on oath, to the Recovery Officer, Debts Recovery Tribunal - III, Mumb<li, both moveable and immoveable assets of theirs as also Defendant No. lis directed to declare, on oath, both moveable and immoveable assets of business(es) carried on by him for the purpose of attachment and sale as directe under Clause (iii) and / or Clause (iv) above;

(vi) Defendant No, 1 to are injuncted from dealing with the assets described in Exh "15" and Exh "20(ra,, also assets declared on oath as per Clause (v) above in anv -wanner \vhc-4svver till the complete recovery of Decreed Amounts under

ii) above;

(vii) Recoy Certificates be issued forthwith as per above decrees and sent to the Recovery Officer, Debts Recovery Tribunal - III, Mumbai;

(viii) Parties are directed to appear before the Recovery Officer, Debts Recovery Tribunal - III, Mumbai; sokra Presiding Officer, Debts Recovery Tribunal - III, Mumbai. (Pronounced in open Court) Dated :7th October 2019

(ix) Copies of final order be sent to all concerned free of cost and File be consigned to records.