DENA BANK vs BARKU on 27 February 2019

1. Shri. Barku Krishna Post: Yesgaon Tal Dist: Nashik. Pin

2. Sau. Shobhabai Post: Yes Dist: N aJ. Malegaon,

- 423 203 J K Naik, Advocate, Counsel for Applicant Bank remained ex-parte {"

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) ) ) ) ) ) Defendant No. 3 This Original Application (OA) is filed by Applicant under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Acf 1993 ('RDDB Act") (since changed to "Recovery of Debts and Bankruptcy Act, 1993") against the Defendants for the recovery of a sum aggregafing to Rs. 10,53,186/18 (Rupees Ten lacs Fifty Three tl'rousand One hundred and Eighty Six and paise Eighteen only) in ql ) ) ) ) Khurd,

Order TOA 1712 of 2016 (Ex-pafte)(Final) respect of the credit facility mentioned in the OA alongwith cost, charges, pendente lite future interest as stated therein from the date of filing of this OA tilI its realisation. Parties Applicant is a Bank within Sec. 2(d) of the RDDB Act and lender of credit facility to Defendant No. 1. Defendant No. 1 to 3 are individuals. Defendant No. L availed the applicant as detailed below for which Defendant o.2 guarantee by way of additional security. Factual matrix:

1. (a) As per OA, on approached provided credit facility of Cash Credit to Defendant No. 1 based on the documentation and Defendant No. L. Defendant No. 2 and 3 provided guarantee.

(b) As per OA, to pay the outstanding dues of the Applicant and Advocate Notice calling upon the Defendants outstanding amount of the CCL. On the failure of the the OA has been filed. itself of the OA being within limitation and falling jurisdiction as per RDDB Act, ordered issue of Summons to (b) Transfer Notices to the Defendants were sent through Registered Post with Acknowledgement Due. Postal covers addressed to the Defendants returned undelivered with postal endorsement "Refused to take RPAD return to sender". As per Regulation 19 of The Regulations of Practice 2010, Tribunal declares that the same constitutes valid service on the Defendants.

2. J Order TOA l7l2 of 2016 (Ex-parte)(Fina1)

(c) As the Defendants neither appeared in person nor appeared through advocate and filed Written Statements, the Defendants were set ex-parte on 08/12/2017 by an Order of the Tribunal. Proceedings:

3. As directed by the Tribunal, Applicant filed, through Shri. Nitin Gunvantrao Kovathalakar, Senior Manager, Claim Affidavit enclosing ts as Annexures (which have been taken on record by the ked as "Exhibits") and also filed Certified Statement of Account the Certificates under Bankers Books of Evidence ].891, hich are marked as Exhibit "22","23" &. "24') d as Exhibits and gone through by the Tribunal, the found relevant for the Tribunal to consider and dispose of on El.idences 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 S. No. Facility $'; Dotument Exhibit &"BM Report (Office ,r13r, Demand Promissory Note (Original) "L4" fuffi thecation Agreement (Original) ,r15r, fuersonal Guarantee of Det 2 & 3 (Original) ,r19il Cash Credit (Rs. 8,48,400/-)

1. Acknowledgement of Debt & Security (Original) tl20t' Recall Notice (Office Copy) ,r21r, has gone unchallenged. In my view, there is question of disbelieving the w\ %. I

5. Order TOA l7l2 of 2016 (Ex-parte)(Final) 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 CCL, completing Documentation and disbursement of the CCL. The Applicant has claimed interest at the rate of 13.50% p.a. with half-yearly rests for all the facilities from the date of filing of the OA till its realisation. Having regards to Sec. 19(20) of the RDDB Act (which is Sec. 34 of Civil Procedure Code, 1908) Defendants comes to an end on the contract between the filing of the OA. discretion in awarding pendente lite and future terest. interest charged by banks for facility, I am will be served if the rate interest is interest basis for all the facilities. and rate of of justice of 11,.00% p.a. on simPle

6. In the light 0f above Order passed on ttre is being allowed and

(i) rhis with costs and decree to be issued on the terms (ii in favour of the Applicant for Rs. 10,53,186/ 18 (Rupees thousand One hundred and Eighty Six and paise Eighteen future interest at the rate of 11.00% per annum (on simple interest basis) from the date of filing of the original Application till the date of realisation in respect of Cash Credit Limit ("Decreed Amount for CCL");

(iil) Defendant No. L, the Borrower, and Defendant No. 2 and3, the Guarantors, are ordered to pay, joir,tly and severally, to the Applicant, within a period of 30 days, the Decreed Amount for CCL and, in event of the said Defendants

Order TOA 1712 of 2016 (Ex-parte)(Final) failing to pay and discharge the dues as directed or in the event of shortfall, the assets forming security for the Cash Credit Limit (covered by Exh "15" beirtg the moveable assets charged) be attached / taken possession of and be sold to the extent of realising the dues / shortfalT, as the case may be, and in the event of further shortfall, the 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 sold for realising the dues f shortfall, as the case may be; (i") Defendant No. 1 to 3 are directed to declare, and and to assets on oath, both moveable Debts Recovery Tribunal - III, Mumbai, of their as also Defendant No. f. is and immoveable assets of the attachment and sale as directed (") Defendant No. 1 to 3 are Exh"!5" as also assets whatsoever till above; ("r) ("ii)

- III, Mumbai; for the purpose of with the assets described in Clause (iv) above in any manner of Decreed Amount under Clause (ii) forthwith as per above decree and sent to the Recovery Tribunal - III, Mumbai; to appear before the Recovery Officer, Debts Recovery on

Order TOA 1712 of 2016 (Ex-parte)(Final)

(viii) Copies of final order be sent to all concerned free of cost and File be consigned to records. TS Presiding Officer, Debts Recovery Tribunal - I[, Mumbai, (Pronounced in open Court) Dated : 27th F ebruary 2019 {kg "\;\.. E"$v g &\ \$e/'6-