BANK OF BARODA vs MR. BABAN GAJIRAM BHUSARE on 11 October 2019

1. Mr. Baban Gajiram Bhusare, 4b. R/o Row House No. 8C, 6 Patil Near Shree Krishna Mandir,,Chuia,ale, Satpur, Nashik. Pin : 422 007

2. Mrs. Shobha Baban Bh'uSare, R/o Row House No. 8C, 6'Pat4 Park, Near Shree Krishna Mandif,'Chunchale, Satpur, Nashik. Pin .422 007 Present : ik, Advocate, Counsel for Applicant Bank Defehaants 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. 18,67,828/71 (Rupees Eighteen lacs Sixty Seven thousand Eight hundred and Twenty Eight and paise Seventy One 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 and 2 with the liability being joint and several. Defendant No. 1 and 2 are hereinafter individually and collective referred to as "the Defendants". Factual matrix :

1. (a) As per OA, Applicant provided to the De dants credit facility in the form of Housing Loan of Rs. 6,26,000/- (" Housing Loan based on the documentation and security creation by Ilefendants for the purchase of Row House No. 15 in Plot No. 8 in Gat No. 09 in Village Chunchale Nashik Taluk in District Nashik whin local limits of Municipal Corporation, Nashik ,y4 (hereinafter "RH No. 15"). R I,15 alongwith accompanying open space purchased out of the L 1 was mortgaged in favour of the Applicant by the Defendants by way o Mort ge by Deposit of Title Deeds as security for HL-1.

(b) As per OA, at the furthe est of the Defendants, Applicant provided to the Defendants another credit facility in the form of Housing Loan of Rs. 12, •100/- ("HL-2") also as Housing Loan based on the documentation and eation by the Defendants for the purchase of Row House No. 4 in at No. 109 in Village Chunchale Nashik Taluk in Disrict Nashik withi ocal limits of Municipal Corporation, Nashik (hereinafter "RH No. 4"). RH-4 alongwith accompanying open space purchased out of the HL-2 was mortgaged in favour of the Applicant by the Defendants by way of Mortgage by Deposit of Title Deeds as security for HL-2.

(c) HL-1 and HL-2 are hereinafter referred to as the "Housing Loans".

(d) As per the OA, in spite of repeated / several demands by the Applicant calling upon the Defendants to pay and clear the outstanding dues in respect of the

Housing Loans, the Defendants failed and neglected to pay the overdue amounts in respect of Housing Loans. Applicant initiated action for recovery by issuing Recall Notice through the Advocate to the Defendants calling upon the Defendants to pay and clear entire outstanding amounts in respect of each of HL-1 and HL-2 and, consequent on failure of the Defendants to pay, the Applicant filed this OA.

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 'Sum mons to Defendants.

(b) On transfer to this DRT, Transfer Notices were ordered to be served on the Defendants. Transfer Notices sent by Post .did not get served and retuned with Postal endorsement "Left Address". Hence, on on application taken out by the Applicant, Tribunal allowed substituted se i-v isi, of Transfer Notices through paper publication, which was carried out by the. Applicant and filed necessary Service Affidavit.

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(c) As the Defendants did not appe, idler in person or through advocate and file Written Statements, the Detendt ere set ex-parte on 09/03/2018 by an Order of the Tribunal. Proceedings :

3. A ected by the Tribunal, Applicant filed, through Shri. Yogesh Chindha atil, Chief Manager, Claim Affidavit enclosing various Documents as Annexures (which have been taken on record by the Tribunal and marked as "Ex ) and also filed Certified Statement of Account together with the Certificate under Information Technology Act, 2000 and Certificates under Bankers Books of Evidence Act, 1891, as Annexures (which are together marked as Exhibit "25", "26", "27" & "28"). Of the Documents filed as Exhibits and gone through by the Tribunal, the following are found relevant for the Tribunal to consider and dispose of the OA on merit.

S. No. Facility Document Exhibit

1. Housing Loan -1 (Rs. 6,26,000/ -) Sanction Letter (Office Copy) "15"

Loan Agreement for Housing Loan (Original) "16"

Declaration - cum - Undertaking - cum - Authority (Original) "17"

Declaration by Def 1 & 2 i/r of RH No. 15 to be mortgaged (Origina ,\. "18"

Agreement of Sale i/f of Def 1 & 2 i of the RH No. 15 (Regd with SRO, .r- Nashik - 1) (Original) 4, "18" Memorandum of Entry recorded by Applicant i/r of mortgage of RH No.

Al) "18"

2. Housing Loan - 2 (Rs. 12,69,000/-) A '-- S "20"

Loan \ e ent for Housing Loan ,Original) "21"

'D ration - cum - Undertaking -

- Authority (Original) "22"

Declaration by Def 1 & 2 i/r of RH No. 4 to be mortgaged (Original) "23"

Agreement of Sale i/f of Def 1 & 2 i/r of the RH No. 4 (Regd with SRO, Nashik - 1) (Original) "23" Memorandum of Entry recorded by Applicant i/r of mortgage of RH No. 4 (Original) "23"

3. Common for All Recall Notice (Office Copy) "24"

Observation on Evidences provided& Claim made :

4. The Statement of Account filed by the Applicant, certified as per Bankers Books of Evidence Act, 1891, tallied with claim in OA. Further, the case of the Applicant is based on 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 proceedings and remained ex-parte as. In my view, there is no question of disbelieving the Exhibits and Claim Affidavit and other evid es let in by the Applicant and the Applicant has proved its case beyond doubt to the extent of sanctioning the respective Housing Loan leting documentation and disbursement of the said Hgysing Loans.

5. The Applicant has claimed interest at the rate of 13.25% p.a. with monthly rests from the date of filing of the OA t. realisation in respect of both HL-1 and HL-2. Having regards to Sec. 19(20) of th RDDB Act (which is analogous to Sec. 34 of Civil Procedure Code, 1908 ntract between the Applicant and Defendants comes to an en on the fi of the OA. Thus the Tribunal has discretion in awarding perk e and future interest. Considering the rate of interest charged by banks fo r facilities, I am of the opinion that interest of justice will b ed if the rate interest is awarded at the rate of 10.00% p.a. on simple inferest asis'for both HL-1 and HL-2. ht of above discussions, the Original Application is being allowed and on the following terms.

ORDER

(i) This Original Application is allowed with costs and decree to be issued on the terms set out below; date o 'ling ,of Housing

(ii) There shall be a Decree in favour of the Applicant as under - (a) For Rs. 5,66,590/- (Rupees Five lacs Sixty Six thousand Five hundred and Ninety only) alongwith future interest at the rate of 10.00% per annum (on simple interest basis) from the date of filing of the Original Application till the date of realisation in respect of Housing Loan - 1 ("Decreed Amount for HL-1"); (b) For Rs. 13,01,238/71 (Rupees Thirteen lacs One thousand Two hundred and Thirty Eight paise Seventy One only) alongwith rate of 10.00% per annum (on simple interest basis) from of the Original Application till the date of realisation in respe Loan - 2 ("Decreed Amount for HL-2"); st at the

(iii) Defendant No. 1 and 2, the Borrowers, are ordered to pay, jointly and severally, to the Applicant, within a period of 30 days„ the Decreed Amount for HL -1 and, in the event of the saidefendants failing to pay and discharge the Vk dues as directed or in the event o hortfail, the assets, being Row House, r forming security for the Housing Loan - 1-(covered by Documents constituting Exh "18") be attached / taken'possession of and be sold and, after settling the Decreed Amount for I IL-1 or shOrtfall, as the case may be, the surplus, if any, be returned and paid to the Defendants. Contrarily, in the event of further shortfall, the said Defendants be proceeded against personally by way of pers al decree and personal assets / estates of Defendant No. 1 and 2 be ad sold for realising the dues / shortfall, as the case may be;

(iv) Defe t No. 1 and 2, the Borrowers, are ordered to pay, jointly and severally, to the Applicant, within a period of 30 days, the Decreed Amount for HL - 2 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, being Row House, forming security for the Housing Loan - 2 (covered by Documents constituting Exh "23") be attached / taken possession of and be sold and, after settling the Decreed Amount for HL - 2 or shortfall, as the case may be, the surplus, if any, T S Asokraj, Presiding Officer, Debts Recovery Tribunal - III, Mumbai.

be returned and paid to the Defendants. Contrarily, in the event of further shortfall, the said Defendants be proceeded against personally by way of personal decree and personal assets / estates of Defendant No. 1 and 2 be attached and sold for realising the dues / shortfall, as the case may be;

(v) Defendant No. 1 and 2 are directed to declare, on oath, to the Recovery Officer, Debts Recovery Tribunal - III, Mumbai, both moveable and imi veable assets of theirs for the purpose of attachment and sale as directe under use (iii) and / or Clause (iv) above;

(vi) Defendant No. 1 and 2 are injuncted from d g with the asset described in Exh "18" and Exh "23" as also assets declared on riath as per Clause (v) above in any manner whatsoever till the complete recovery, of Decreed Amounts under Clause (ii) above;

(vii) Recovery Certificates be issued forth er above decree and sent to the Recovery Officer, Debts R ry Tribuna - III, Mumbai;

(viii) Parties are directed to appe fore the Recovery Officer, Debts Recovery Tribunal - III,

(ix) Copies of final orebe sent to all concerned free of cost and File be consigned to records. (Pronounced in open Court) Dated :11th October 2019