Debts Recovery Tribunals and Appellate Tribunals
BANK OF BARODA (DENA BANK) vs VILAS ASHOK AVARE on 6 March 2019
Dena Bank, a body corporate constituted under Barf<ing Companies (Acquisition and Trarsfer of Unde aking) Act 1970 having its Head Office at Coryorate Centre, C-10, "G" Block, Bandra -Kur Compler; Bandra (East), Mumbai-400 051
its Branch office Eituate at Renuka Plaza, ancl Trva bak Road, BhaLlrtrkali, ,\ashik Ci thror.rgh Asst. Ceneral N,lanagcr
PrcEe,JLted on | 14042015
RegtEtercd on | 02,/7U2015
'lftnsf ellled | 03/10/2076
Decided on : 06/03/2019
Duration : 04(D)/03(M)/03(Y)
r\Pplicant
Dcfc clint \o. I
IN THF, DEBTS RECOVERY TRIBUNAL - III AT MUMBAI
DATED THIS 6th DAY OF MARCH 2019
PRESENT : SHRI. T S ASOKRAJ
PRESIDING OFFICER
T O A No. 1520 of 2016
<6"p
Defcndani No. 2
De{endant No. 3
4. NIr
aram Balde,
Post :
lal: Dincloi,
Dist N
422 202
Defendant No. 4
Nls. llekha Najr, Aclvocate, Counsel for r\pplicantBank DelenLlants remainccl cx partc T]1is Oliginal Applicatiolr (OA) is liled by r\pplicanl unller ScctiffI 19 of tho Ilccovcry of Dcbts Drrc to Banks an(l Fjnancial Institutions Act, 1993 ("RDDB Ar:f')
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1. NIr. \rilas,\shok Avare,
I'ost: Karadlva[ Tal : Dinclori,
Dist Nashik 422 202
2. N,Irs. Anusaya Ashol< Avarc,
Post: Karanjwar, Tal : Dindoi,
Dist Nashik - 422 202
3. trh. Balu \{ahadu Biude,
Post: Karanjlvan, Tal : Dirdoi,
Dist Nashik - 422 202
Present:
Order TOA 15211 01 2016 (F\ pa[c)(l]i.al)
(since changed k) "Rccovcry oi D-"bts and tsnnkruptcy Act, 1993") agnjnst thc Defcndants fol thc rccoverl of a sum aggrcgating to Rs. 20,80,516/ (RuPees Trvenlt- lacsEighty thousand Five hundred and Sirteer-ronly) jn iespcct o[ the various (]iedit {acilities me1-Itioned in the OA alongwitll cost, chatges, Pel lcntr lire future inh-rost as stated thelein from the Llate of {iling of this OA lill its realisation.
Applicant is a llank H,ithin Scc. 2(ct) of the ITDDB Aft a1ld lend Delendant No. 1 and 2.
ties to
t lacilities
Defendant No. 1 to 4 are individuals. Defendant fuom Lhe Applicant Ior $'hjch Defendant Ncr additional security. Defendant No. 1
referred to as "the Borrowers"
1.(a) As per OA, Applicant pr
f
9,40,000/- ("A
pclsonal lluarantee as
tl1, and severally
ty of Agricultur.1l l'erm l-oan of Ils.
oI lts. .1,20,000,r ("DKCC laciljitr')
) to the tsorrorlers based o11 thc
tion bI the Borr'orvcrs. DeFendant No. J anLl 4
Credit
tv in the form of joilt and ser,cral Per'sonal lies were sccurcd b], mortgage seeudtv .rcated lrv thc tcd Declaratiorl utder Sec. 5 of \'laharashha Provision of Agricultural Crcciit by Bank Act, 197,1 in resPect of their lands located in Village Karaniwan, Taluk Dindori, Distdct Nashik, and got the san]e registeled !\'ith SRO, Dindod, bcsides lleiting the l)ednration registered in tltc 7 / 12 Register under luah.lrashtra LanLl Revetlue Code, 1966.
(b) As per OA, thc Borrorvers were not r'egular iu rcpa) ir18 thc a[lour1ts duc under the accounts and failcd and neglectell to make pa)rnenl oI princilral amount, intercst and othei mollies in respcct oI the Credit lacilities. It is {urdrer avcrcd that the Borrou,crs collunitleci clefaults in observation and Performanc-" of the CCF
Paities
\'"r
Factual B4EII :
"'P.
(collectivelv called
.'i,.
l
Ordc. IO l-<20 oi20 !61E\-parcl{[]iall
telrns and conditions oI the Credit Facilitics as stated in the O-,\, lcsulting ill Applicant issuing Recall Notice, callhg upon all ihe Defcndants to reptry thc entire outstanding amount oI thc Crcdit facilities and, conscquent fu failurc o{
thc Dcfcndants to repay, the OA has been filed.
2. (a)Tribunal, after satjslying itselJ of the OA being within liaritation and falling within its tcrritoial jurisdjction as p-"r RDDB Act, ortlcred Defendants.
(b) Sunrmons to the Defendants were sent by way of Acknorvleclgcment Due n'hjch got served on resp
and
Applicant liled Servi.e Affidavit.
(c) As Defendants did not appcal cither
advocale and Iile
oar/ 10/2017 b) ar1
Wdtten Statements, the Delendants
Order of the Tribur-ral.
Proceedings :
through N1I. Ilahul \1 Cirase,
to
3. As directed bv the
t
It'lanager,
have been
filed
on
Documcnts as Annerures (rt hich
and marked as "ExhiLrits") ancl also
t tollether rvith the CertiJicatc issued under ct, 2000 and Certificirtes undcl Llankers Books of Annexures (rvhi.h are mitrkcd .1s Exhibit "27", "29" &
filed as Exhibits arrd gone through by the Tribunal, the lclevant lor the Idbunl to consider and dispose oI thc OA
SNo
Faciliqr
DocumeDt
Exhibit
AgIi. Term Loan
(Rs.9,a0,000/-)
Loan Proposal ar, d Branch Nlanagcr's
Report (Of{ice Copl,
"74"
De and Promissory Notc (Original)
"|s"
Hypothccation Agreement (Originnl)
"16"
\
order T( )A I 52r oI 20 I 6 (tx-parte)U inal)
as per Bankers Books
Observation q4 Evidences
de
4. The Statenent of AccouDt
of Eviclence Act, 1E91,
Applic.11rt is based on
Exhibirs) filed
Exhibits
the A
5. The
OA. furthcr, the case of the
ts (inclucling the above referred
vit, u'hich is a s(.orn Statenent, rvhich , there is no question of disbelieving the other evidences let in by the Applicallt and its case bevond reasonable doubt to the extent of Facilities, completing Documentation and disburcement Iicant has claimed interest at the rate oi 13.751," p.a. lr'ith !early rests for both the far:ilitiesfrom the datc of filing of thc O-A til1 its Ir'alisation. HaYJn6
regards to Scc. 19(20) oI the RDDB Act (\a.hich is analogous to Sec. 34 of Civil Procedue Code, 190E) the .ontract betueen the Applicant ancl l)efenclants comes to an end on thc filing of the OA.Thus the Tribunal has discretion in awarding penLlentelite ancl Iuturc intclest. Considcring thc ratc oI intercst "17"
Pcrsor-Ial Cuarantcc of DcI3&,1
(o ginal)
I-oan Proposal and Branch N4anagcr's
Report (OfIice Copy)
" 19"
Demand Promissory Note (Odginal)
"20"
"21"
H) polhecation Agreencnt (C)riginal)
2.
DKCC Facilitv
(Rs.'1,20,000/-)
I'crsonal Grrarantee of Def3&,1
(Oiginal)
"22"
3.
Common for all
Credit Facilities
Recall Notice (Office Copy)
" 25'
has gol e
Mortgagc b-v way of Dec)aration by
Dc{ 1& 2 and Regd rvith SRO,
Din.tod (Original) $'ith 7 / 12 Extract
Order TOA 1520 of2016 (Ex-pane)(Final)
In the light of above dis(ussions, the C)riginal ApPlication is being allo$'ecl and Orcler passed or1 the follorving terms.
Citations and Judicial Treatment
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ORDER
(i) This Ot-iginal Applica terms set out Lrclorv;
(a) Ior Rs. 11,67,642/- (Rnpe hundrecl anr-l Forty Tlvo 12.00,'/" pei annum ( tion is allowed with costs and decree to 1e interest the datc resPcct the thousand Six at the rate of of filing of the oI Agricultural Irorr 1n Term Loarl (b) For Rs. 6, TL")) s l'rvelv-" thousand Eight hunllred and futurc int.rrest at the ratc of 12-00% per t basis) Ir()rr the datc oI filiDg of the Original t for DKCC la.ility"); 4ru1
(iii) No. I anLt 2, the Borroners, and Deiendant No- 3 ancl 4, the s, are ordered to par,, jointh- and severally, to the Applicatlt \,ithin a period of 30 davs, the f)ccrced Amount Ior ATI- nnd. in thc eYent of the Dcfcndants failing to pa,v and discharge thc dues as directed or in thc event oF shotfall, the assets lorming sccurity for the Agricultural TeIm Loan (covere,1 b]-Exh "16" bcing the moveablc asscts chalgell & Exh "18" being the immovcablc propertics mortgaged) be attached / taken possession oI and be chargcd bv banks for similar facilities, I am of the opirlion th.1t interest ofiusH.c rvill be served if the rate intcrcst is a\varlled ai thc rate oI I2.00?i, p.a. on sirnple intcrcst basis Ior both ATL and DKCC Iacilih. (
(ii) Thcrc shall be a Decree in favour of the Applicant as under Oiginal Applicatior till Seventv Four -.. Y \k riI clate oF r-"alisation in respect of DKCCI Facility"
(iv) Defendant No. I and 2, the Bolrowcls, and L)cfcndant OrddTOA 1520.1 2016 (F\ fade)(f inrl) and 4, rhe of event by Exh being the inlmoYenble and be sold to the bc, and in thc cvc11t oI sold b the extent o{ realising thc clu-"s / shortfall, as the case mal be, and in the event of {urthcr sholtIall, the Defendants be proceede.l against personalh by (.a1- o{ pcrsonal decree and busiless assets / persona] assets / estates of Dclcndait No. 1 and 2 and persural assets / estates of Defeidant No. 3 ancl 4 be atlached antl soltl fo;r rcalising the ducs / short{al1, as the case ma}, be; Guarantors, ale ordercd to pa, joinfly and severally, to poiod of 30 davs, the Dccrecd Amountfor DKCC -Facfity the Defendants failing to pay and discharge the as of shortfall, ihe asscts Iorming securih for D I "21" being the movcablc assets No. 1 ancl 2 and p
(v) Basecl on P
(vi) s proPerties mortgagcd) be attached extent of realising the clues / turther 6horda11, the personal decrec and bu personallv by rr'a."- oi .lsscts / L-st.1tcs of Dclcrclant Defendant No. 3 ard 4 be attached as the (ase may be; placed bcforc this I'ribunal, suppoltcd bv thc that there is a valid, sLrbsistjng and L'nJorceable ble froperties describccl in Exh "1E" in favour of y securing thc -Agricultural Term Loan and DKCC lra.ilit),; tl-re Original I)ocuments }rlaced before this Tlibunal, supported b) the plea.lings, it is Dcclared that there is a valid, subsisting ancl cnforccablc joint and sevcr.tl per'solral guala[tee of Delenclant No. 3 arld,1 bcng Exh "17" and lxh "22" in firvour of thc Applicant validly securing the Agricultural 'Ierm I-oan and DKCC facilitv; and sold Ior realising the shortfall,
(r'ii) Dclcndant No. I b il are dircctcd to declare, on onth, to the Recovcrv Offi(er, Debts Re.o\'-"i! Tribunal IIl, Nlumbai, both lrovcab]e and inxnol'cable assets oI thcirs as also Defendant No. 1 and 2 are dirccted to declare, o]r oirth, both moveable and immol eable assets of thc business callied on b), thcm jointly ()1 severalh- Ior the purpos-o of attachnent arld sale as dire(:ted undel Cl:rusc (iii) and / or Clause (iv) above;
(viii) Defendant No. 1 to 4 are injuncted ftom dealing with *L Order ToA l52U 01 2016 (F\-f.r[c)(l inr ) tn vii) d sent to thc EvJ., "-l-6" & " 27" and. Exh "18" as also assets declared on oath Amounts under Clause (ii) above;
(ix) Recovcry Ccrtificatcs be issued fqth ReNvery Offtrer, Debts Recov
(x) Parties are clirccted to Tribunal - III, Nlumbai; erv OfIicer, Debts Rccovery' emed fiec of cost and File bc consigned app
(xi) Copies of final to records. Presiding Olficcr l)ebts Recover,v Iribunal lll, N{umbai. en Court) Dated : 6 ' 201.9 above in any nanncr whatsoever hll thc cornplete recovclv