Debts Recovery Tribunals and Appellate Tribunals
CENTRAL BANK OF INDIA vs SHIVAJI NARAYAN on 11 October 2019
Presented on : 02/12/2015
Registered on : 27/09/2016
Transferred on : 03/10/2016
Decided on : 11/10/2019
Duration :14(D)/00(M)/03(Y)
IN THE DEBTS RECOVERY TRIBUNAL - III AT MUMBAI
DATED THIS 11th DAY OF OCTOBER 2019
PRESENT : SHRI. T S ASOKRAJ
PRESIDING OFFICER
T 0 A No. 257 of 2017
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 Arvind Chambers, Can Branch, Nashik Taluk, Dist. Nashik through Branch Manager Applicant
1. Mr. Shivaji Narayan Berad,
Post : S No. 123(P), Shilapur
Pin : 422 001
2. Mr. Anant Sudam
Post : Madsang
3. Smt. Laxmi
Pos
t : Nashik
Defendant No. 1
)
ashik. Pin 422 001) .... Defendant No. 2
Defendant No. 3
)
)
)
Berad,
)
& Dist. Nashik. Pin 422 001)
aik, Advocate, Counsel for Applicant Bank dants 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. 18,13,397/- (Rupees Eighteen One Thirteen thousand Three hundred and Ninety Seven 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, which provided credit facilities to Defendant No. 1, an agriculturist by occupation, for which, Defendant No. 2 and 3 provided their personal guarantee in favour of Applic s additional security.
Factual matrix :
1.(a) As per OA, on being approached by Defendant No. 1, Apant sanctioned to Defendant No. 1, credit facilities aggreg to Rs. 13,20,600/- comprising of Term Loan of Rs. 11,09,600/- ("TL")
er CKCC Scheme) of
Rs. 2,11,000/- ("CL")(TL and CL eluxe tively referred to as "the
Credit Facilities"). The TL was
ursed
L was allowed to be utilised
based on the documentatio* d sec y creation by Defendant No. 1 as also personal guarantee provided by fendartt No. 2 and 3 as additional security.
(b) Defendant No. 1
icultural land located in Gat No. 123 in Village Shilapur in m District Nashik as security for the Credit Facilities by eiseeu ge Deed in favour of the Applicant which got registered
- 1.
(c) It
Sanction Letter dated 03/08/2009 (Exh "11") has totalling is left out in total. This error got reflected in the Loan-cum- Agreement (Exh "13") (Exh "21") and Personal Guarantee of Defe t No. 2 (Exh "15") and Defendant No. 3 (Exh "16") where TL captured erroneously as Rs. 11,09,000/- (instead of sanctioned amount of Rs.11,09,600/-).
However, Mortgage Deed (Exh "19") has correctly captured the T-L, sanction detail as Rs. 11,09,600/-.
(d) 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 respect of the Credit Facilities. Applicant, therefore, initiated recovery
proceedings by issuing Recall Notice, through its Advocate, calling upon all the Defendants to repay the entire outstanding amounts of the Credit Facilities and, on their failure 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 Reg te t with Due Cards received back. Applicant filed Service Affidavit.
(c) As the Defendants, neither appeared in pers n nor throug#dvocate and also did not file Written Statements, the Trib on A,12/ 2017 passed an Order setting the Defendants "ex-parte".
Proceedings :
3. As directed by the Tribunal,' Applica through Shri. Pradip P Gilankar, Acknowledgement Due Card which got delivered and AcknoWlec Branch Manager, Claim (which have bee tak and also filed Cer under The I
Books of
enclose g various Documents as Annexures the Tribunal and marked as "Exhibits")
of Account together with the Certificate Techriology Act, 2000 and Certificates under Bankers 1, as Annexures (which are marked as Exhibit "19", "2
" & "29"). Of the Documents filed as Exhibits and gone the Tribunal, the following are found relevant for the Tribunal to ispose of the OA on merit.
S. No.
Facility
Document
Exhibit
1.
2.
Term Loan (TL)
(Rs.11,09,600/-)
Crop Loan (CL)
(Rs. 2,11,000/ -)
S
Sanction Letter (Office Copy)
"11"
D P Note for CL (Original)
"12"
Loan-cum-Hypothecation Agreement
for TL + CL (Original)
"13"
Per. Guarantee of Def 2 for TL + CL
(Original)
"15"
Per. Guarantee of Def 3 fob'
(Original)
.,.
"16"
Mortgage Deed
Def 1 i/r of ' .,
Agricultural
s (Regd #h SRO,
ir
Nashik-1
iginal \, ,
"19"
D P NIO'.., for ll.
(Origin=. ) (pursuant
-•
t•
• ,.
•,,
"20"
Lo
cation Agreement
O
r TL
(Original) (pursuant to
enawal)
"21"
'lotice (Office Copy)
"24"
Observation on E
d& Claim made :
4.
The State
t A
n filed by the Applicant, certified as per Bankers Books 91, tallied with claim in OA. Further, the case of the ased on various Documents (including the above referred alongwith Claim Affidavit, which is a sworn Statement, which has g unchallenged 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 let in by the Applicant and the Applicant has proved its case beyond reasonable doubt to the extent of sanctioning the Credit Facilities, completing Documentation and disbursement of the Credit Facilities.
22. In the light of above discu
al Application is being allowed and
Order passed on e follq
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ORDER
However, as pointed out under Para 1(c) above, there is variance in the amount of TL captured in various Security Documents. Accordingly, the Order and Decree on enforceability for recovery in respect of TL shall be as per the relevant Security Document.
5. The Applicant has claimed interest at the rate of 13.50% p.a. with monthly rests in respect of both the facilities under the Credit Facilities, from t date of filing of the OA till its realisation. Having regards to Sec. 19( o e DB Act (which is analogous to Sec. 34 of Civil Procedure Code, 19 tract between the Applicant and Defendants comes to an end on the fili o e OA. Thus the Tribunal has discretion in awardin' dente lite and future interest. Considering the rate of interest charged bybanks similar facilities, I am of the opinion that interest of justice will$b1. se if th to interest is awarded at the rate of 12.00% p.a. on simpt is foriwth the facilities under the Credit Facilities. •
(i) Original ica n is allowed with costs and decree to be issued on the
(ii) The be a Decree in favour of the Applicant as under - (a) For Rs. 14,90,759/- (Rupees Fourteen lacs Ninety thousand Seven hundred and Fifty Nine only) alongwith future interest at the rate of 12.00% per annum (on simple interest basis) from the date of filing of the Original Application till the date of realisation in respect of Term Loan ("Decreed Amount for TL"); or • wer, and Defendant No. 2 and 3, the Guarantors, are
(b) For Rs. 3,22,638/- (Rupees Three lacs Twenty Two thousand Six hundred and Thirty Eight only) alongwith future interest at the rate of 12.00% per annum (on simple interest basis) from the 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 arantors, are ordered to pay, jointly and severally, to the Applicant, p 'od of 30 days, the Decreed Amount for TT, and, in the event of the f ants failing to pay and discharge the dues as directed or in the event o or all, the assets forming security for the Term Loan (co d by Ex 13" read with Exh "21" being the moveable assets charged & Exh •" being the immoveable properties mortgaged) be attached / en pOssessio •f and be sold to the extent of those assets forming se ell for realising the dues / shortfall, as the case may be, and in the ev rtfall, the said Defendants be proceeded against personal nal decree and business assets / personal assets / estates ant . 1 and personal assets / estates of Defendant No. 2 4nd 3,,be sold for realising the dues / shortfall, as the case may be;
(iv) Defendant Or tly and severally, to the Applicant, within a period of 30 d Amount for CL and, in the event of the said Defendants and discharge the dues as directed or in the event of shortfall, the asset rming security for the Crop Loan (under CKCC Scheme)(covered by Exh "13" read with Exh "21" being the moveable assets charged & Exh "19" 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 /
(v) Parties are direcird to the Recovery Officer, Debts Recovery Tribunal - III, Mumli nt to all concerned free of cost and File be consigned T S Asokraj, Presiding Officer, Debts Recovery Tribunal - III, Mumbai.
(vi) Copies of estates of Defendant No. land personal assets / estates of Defendant No. 2 and 3 be attached and sold for realising the dues / shortfall, as the case may be;
(v) 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 business(es) carried on by him for purpose of attachment and sale as directed under Clause (iii) and / o bove;
(vi) Defendant No. 1 to 3 are injuncted from dealin: with the assets scribed in Exh "13" & "21" and Exh "19"as also assets • red on o as per Clause (v) above in any manner whatsoever till co ete recovery of Decreed Amounts under Clause (ii) above;
(vii) Recovery Certificates be issued bove decrees and sent to the Recovery Officer, Debts Recawry I, Mumbai; (Pronounced in open Court) Dated :11th October 2019