Debts Recovery Tribunals and Appellate Tribunals

BANK OF BARODA vs GORAKH on 27 February 2019

Cites 0, Cited by 0

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bL-,-2A

Presented on : 04/04/20L4

Registered on : 20/06/20L6

Decided on:27/02/2019

Duration : 07(D)/08(My02(Y)

IN THE DEBTS RECOVERY TRIBUNAL - III AT MUMBAI

DATED THIS 2rhDAY OF FEBRUARY 2019

PRESENT : SHRI. T S ASOKRAJ

PRESIDING OFFICER

T O A No. 1711 of 201.6

Dena Banh

a body corporate under The Banking Companies (Acquisition and Transfer of Undertaking) Act 1970

having its Head Office at Dena Corporate Centre, C-10,'G' Block, Bandra -Kurla Complex, (East), Mumbai-400 051 amongst other places of its Branch Office at Post Tilak Road, Branch, Taluk Malegaon, Dist: Nashik. Pin through Chief Manager

1. Shri. Gorakh Tulshiram

Post: Yesgaon Khurd, T

Dist: Nashik. Pin

Defendant No. 1

2. Shri. Nanabhau

Post: Y

Dist: N

Defendant No. 2

J

Malegaon,

- 423203

Defendant No. 3

] K Naik, Advocate, Counsel for Applicant Bank remained ex-parte This Original Application (OA) is filed by Applicane. 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. 17,79,172/- (Rupees Seventeen lacs Seventy Nine thousand One hundred and Seventy Two only) in )

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Order TOA 171l of 2016 (Ex-parte)(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 till 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 and agriculturists by No. 1 availed credit facility from the Applicant for hich and 3

stood personal guarantee by way of additional Factual matrix:

1.(a) As per OA, on being a

3 offering to stand

Limit of Rs. 13,02,000/-

documentation and

security of

(b) As per OA,

Defendant

A

2.(")

A

Defendant No. 2 and

facility of Cash Credit

No. 1 based on the

by

No. 1 and the additional

No. 2 and 3.

making repeated / several demands,

to pay the outstanding dues of the

t issued Advocate Notice calling upon all the entire outstanding amount of the CCL. On the failure rcpay, the OA has been filed 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) Transfer Notices to the Defendants were sent through Registered Post with Acknowledgement Due. Postal covers addressed to allthe Defendants retumed undelivered with postal endorsement "Refused to take RPAD return to r i\

J

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

sender". As per Regulation 19 of The Regulations of Practice 2010, Tribunal declares that the same constitutes valid service on the Defendants.

(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 * Order of the Tribunal.

Procee4ings:

3. As directed by the Tribunal, Applicant filed, through Kovathalakar, Senior Manager, Claim Affidavit enclosing v as Annexures (which have been taken on record the as "Exhibits") and also filed Certified Sta with the Certificates under Bankers Books of are marked as Exhibit "23", "24", EE

as Annexures (which

filed as Exhibits

and gone through by the

found relevant for the

Tribunal to consider and

Observation on Evidences provided& Claim made:

4. The Statement of Account filed by the Applicant, certified as per Bankers Books of Evidence Act, 1891, talTied with claim in OA. Further, the case of the Exhibit

S. No

"t,.,:,:,,, ",...

..,:::,:,,11:t D}r]uOr"nt

'13"

Loan,,P.foposal

coPv)

& BM Report (Office

"-L4"

fuemand Promissory Note (Original)

l)

Hypothecation Agreement (Original)

!

,r17r,

Personal Guarantee of Def 2 & 3

(Original)

,r21r,

Acknowledgement of Debt & Security

(Original)

,r22r,

Cash

(Rr.

,*:''\'c',

t#) ;.

\'.....r!

Recall Notice (Office Copy)

Applicant is based on various Documents

the above referred

Order TOA lT ll of 2016 (Ex-parte)(Final)

Exhibits) filed alongwith Claim Affidavit, which is a sworn Statement, which has gone unchallenged. 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 CCL, completing Documentation and disbursement of the CCL.

5. The Applicant has claimed interest at the rate of 13.50

rests for all the facilities from the date of filing of the Having regards to Sec. 19(20) of the RDDB Act (which is %p.

Civil Procedure Code, 1908) the contract

and

Defendants comes to an end on the filing oA.

Tribunal has

discretion in awarding pendente lite

Considering the rate of

interest charged by banks for f.acrlity, t interest of justice will be served if the rate

11..00% p.a. on simple

interest basis for all the

6. In the light of above

Application is being allowed and

Order passed

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ORDER

is allowed with costs and decree to be issued on the be a Decree in favour of the Applicant for Rs. 17,79,172/- (Rupees Seventeen lacs Seventy Nine thousand One hundred and Seventy Two only) alongwith 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"); ,ly tion. of

(ii) :

Order TOA l7l1 of 2016 (Ex-parte)(Fina1)

(iii) Defendant No. 1", the Borrower, and Defendant No. 2 and 3, the Guarantors, are ordered to Pay, joi.tly and severally, to the Applicant, within a period of 30 days, the Decreed Amount for CCL and, in the event of the said Defendants failing to pay and discharge the dues as directed or in the event of shortfalf the assets forming security for the Cash credit Limit (covered by Exh "1s" being the moveable assets charged) be attached f taken possession of and be sold to the extent of realising the dues f shortf.al7, as the case may the event of further shortfall, the Defendants be proceeded against personal decree and business assets / personal assets / No. 1 and personal assets / estates of No. 2 of and sold for realising the dues f shortfall, as the be; (i") Defendant No. 1 to 3 are directed to Recovery Officer, Debts Recovery Tribunal - I[, and immoveable assets on oath, both moveable of their as also Defendant and immoveable assets of on by him for the purpose of attachment and sale as

(iii) above; (") Defendant No. from dealing with the assets described in Exh"15" as on oath as per Clause (iv) above in any manner recovery of Decreed Amount under Clause (ii) ("0 be issued forthwith as per above decree and sent to the Officer, Debts Recovery Tribunal - III, Mumbai;

(vii) Parties are directed to appear before the Recovery Officer, Debts Recovery ar1di'3 be .,....,, ,,.r:J,, Tribunal - III, Mumbai;

Order TOA lT ll of 2016 (Ex-parte)(Final)

(viii) Copies of final order be sent to all concerned free of cost and File be consigned to records. S Presiding Officer, Debts Recovery Tribunal - III, Mumbai. (Pronounced in open Court) Dated :Z7hFebruary 2019

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