BANK OF BARODA (DENA BANK) vs Mr Bhausaheb Chaburao on 26 February 2019

1. NIr. Nathc Bhausaheb Cha Post : Hatnore, Tal Dind

2. NIr. Coclsc B Post : Umrale, T

3. N,lrs. Bolas I'ost

4. a

5. Mr aclav Puncllik, licarlt 001 ).. ) .122 001 ) ) Defendant No.2

t. Nashik .122 001 )... Defcnclant No.3 bu, indori, Dist. \ashik 422001 )... I)efcnLl.urt No''l DefcDdarlt No.l Post 'l-al Dindori, Dist. Nashik - 422 001 ) ... Dcfenclant No'5 I'resent: l\'Is. Sophia, Advocate, i/b Rajesh t, Shcthitr, Advo'atcs for APlJln'art Bank Dcfendants rcnrained er-Par'tc This Originnl Application (OA) is flled b' APplicant undcr Section 19 of thc Recover,v of Dcbts l)ue to llanks ancl financial Institutions A't,:t993 ("RDDB Act") (since changed to "Rccoverv of Debts anrl Bankruptcv Act, 1993") against thc

O.der TOA 1966 ()12016 (l-\-parlel(fjtxl) De(entlants {or the lccoven' of a sum aggregatur[i to Rs. 11,94,761/ (liupees Fleven lacs Nineh'lour thousand Scven hundrccl and Sixf Onc onl)) in rcsPect of the va ous crcdit facilities mentioned in the C)A along$'ith (ost, charges, fc,lr'rrf /ifr futurc interest as statell therein Irom thc date of filing of this OA till its realisation' Parties Applicant is a Bank $'ithir1 Scc. 2(d) of thc RDDB Act and lcnder f.rcilities to De{endant No. 1 Defendant No. 1 to 5 are individuals. Defendant No frorn the App different securiq'. licant for which Defendant No. 2 to g11arant-"e in combination for each of the credit out b-"lorv, as additional Factual matrix :

1. (a) As per OA, at the req 1, Applicant provicled creciil facilitiesof Agdcultural T ,000/- ('Al'L") and Crop Loan oI Rs. 4,62,000/- ( hereirafter collectivcl,v refer'red lo irs "Crcdit Facili No. l based on thc documcnlation ancl sectlily Delendant No. 2 and 3 providing additional onal guaritntcc for i\TL aDcl Defcnclnnt No '1 and 5 ty in the form ol Personal guarantee Ior (-1.. Crcdit securecl by nror tgagc oI agricultural lands rlith Dcfendant .r Declaration undel Scc. 5 of N4ahnrashtra Provision of for Agricultural Crcdit bv Bar-rk Acl, 1974 in respect o{ his :rgricultural F lands locatccl in Village Hatnore, Taluk Dindoli, Distrjct Nashik, and got thc same registcred r{ith SRO, Dindori, besidcs getiing thc Declaration registcred i1.I thc 7 / 12 Register undcr N'laharashtra Land Revetlue Codc, 1956

(b) As pcr averment in the OA, Deferldant No. 1 t{as highlv irrcgular in opcrating the .rl'counts oI Credit Iacilitics and intercsls aor scvcral nonths dnLl several instalments l{.crc not paid and rendined overdue in sPite o{ DefendaDi No I \.

Ordc. TOA 1966 o1 2016 (Ex-Fnel(l-liii) making good ea ling. lt is Ilrrther tlvcrred that Dclcnclant No. 1 comnittc.l various irrcgularities an(l brcach-"s oI thc terms and conditions oi the Crcdit Facilities as stated in the O-,\. APpticant accordingllr issuecl Recal] Notice by u,'ay of Advocate Notice calling upon all thc DefenLlants to repav the entire outstanclir-Ig amount of the Credit Iacilities $'hich i{'as resPolded by th' Defendants b) denia! as per the OA. Consequent to failurc of thc Defendants to repav, the OA has been filcd. within its te itorial ju sdiction as per RDDB ordcrecl Defendants.

(b) Summons to the Registcrcd Post \a.itlr -Acknorvledgement Due. hr res Acknowledgement Cards were delivery. ln rcspect of Defenclant No. 2, Ac u,as not leccivecl back. However doh'nload from articles delivcry traaking s-Yste coniirtnecl dclivcrv. App

(c) As Delenllants person or through advocate and file \{rittcn \\'cIe sel ex partc ()l1 19/01/2018 bY an Older oI Tlibunal, Appli.ant filcr.1, through N{I. Ja)'ant Bapat, Chiel Affidavit enclosing various Documents as Amexures (i\'hich ha takcn on recold by the Tribunal anci narked as "ExlTibits") anr-1 also filccl Certified Statemcnt of Account togethei i\'-ith the Ccrti{jcates under Banlers Books of Evidcncc Act, 1891, as Arulexur'€rs (u'hich :rrc miukeLl as Erhibit "2E"& "29"). Ot the Docuncnts filed .is Exhibits trnd gone through br the lribunal, the lollorving arc {ound releva[t Ior lhe Tlibunal to r:onsitler-and Dc{cndants n 1, 3, 4 and 5, .'.\ \\

2. (a)Tdbunal, alter satislying itselJ o{ the Or\ bcirlg l{'ithin linitation and lalling Alfidal.it in thc matter. n"-_tft* disoose of the ()A on mcrit.

Ordcr IOA 1966 of20l6 (Flx-lurtc)(rinall made :

4. The Statement of Applicant, certified as per Bankers Books of Evidence $iith .laim in OA. Further, the case of the ApP Documents (including the abovc referrcd Claim Affidavit, rvhich is a sworrl Statcment, whi.h ln mv vielv, thcle is no question of disbelieving thc Alfidavit and othcr evillcnces let in b)' the APpliciillt 'u'l t has proveLl its case beyond reasonable doubt to lhc extent of thc Creclit lacilities, conPleting Documcntation and disbursement / drawl out ol the Credit Facilities. Though tlle Sanction Proposal ior AfT. harl Crop Loan of Rs. 2,10,000,1- as Part oI it and DocuNentittion lor '\IL coverorl the said Crop Loan also, there is no mention of the s;rid Crop T,oa1t irl Lhe O/\ or Exhibit DocumcrrI "77' Loar I'roposal & BNI RcPort (O11ice Cnp,y) I IyPothecation Agreement (Original) "13" Demand Promissory Note (Odginal) "15" Pcr Guarantcc of Def 2 & 3 (Original)

Agri. Term Loan (Rs. a,70,000/-) "18 ntt" Loan Proposal & BM Cupy) Hvpothecation Agrecment ( Demand Note (Original) & 5 (Original) Per Cuaran Crop Loan (Rs. a,62,000/-)

"24" of laration by " 26" Recall Notice (Office Copy) Clommon for all Creclit facilitics r\ \ claim theiefor Facility S. No. ""12" "20" Promissory "22" Def 1 and Regd rvifi SRO, Dindori (Oiginal) with 7 / 12 Extract Nlortgage

3. Observation on the ordcr IOA 1966 o1 2016 (Er'pade)(Findl) The Applicant has claimed htcrest at the rate oi 10.509; P.a. $'ith vearly rests m respect oI ATL and interest at the rate oI13.00% P a. ltith !'earl)' rests in respo't of CL both lrom thc clate of fililg of thc OA tilt its realisation. Hirving regards to Sec. 19(20) of the RDDB Act (which is analogous to Sec. 34 of Civil I'rocedure Code, 1908) the contracL befi{'een the Applicant and Delenclants 'omes to an cnd on the filing of the Or\.Thus thc Tribunal has discretion in atvarcling pe dente Iite and futule interest. Conside ng the rate of barrls for sirnilar facilities, I am of the oPinion that in u,ill be selIled if the rate inlerest is aifar(lcd at the rate of 10.50-"1 by

6. In the light of abovc discussions, lhe Older passed on the follou,ing terms. is being allot,ed ancl

(i) This Original Applica and dccree to be issue(l Lnl the terms set oul be CI

(ii) There shall of thc Applicant as uncler -

(a) For pees Scvt11 lacs Eight), One thousand 'l_wo hundred th future irltcrcst at drc rate of 10 5016 PCr annum basis) flom the date of {iling of the Original till thc clate of rcalisation 1 rcsPect oI Agr'i.ultural Telm Loan ed Amount for ATL"); (b) Rs.4,13,51l/- (Rupees }our lacs l llirteen thousand Five hundred and Eleven ontl') alongr,ith futurc interest at the rate of 12.00'1, Per a nuDl ()I1 simfle intcrcst basis) from the date of filing of thc O gi]lal Applicntion till the dak- oI rcalisation in rcspecl of Crop Loar-r ("Decreed Amount for CL"); fol ATL and

12. t10?i p.a. for CL, both on simPle hterest b.1sis. qp \

Order TOA 1956 012016 (li\ fo e)(Final)

(iii) Defenclant No. l, thc Borro*'er, and Defendant No 2 'rnd 3, thc Gualantors' are ordcred to Pa\', jointh'and severally, to the ApPlicant, ('ithin a Period oI 30 davs, the Decreed Amount Ior AlL and, h the evcnt of the said Defonll:rnts failing to pay and ciischarge thc clues as dirccted or rn thc evcnt of shortfall' the assets Iolnling secudtv k)r the Agdcultural Telm Loan ((overed bv Exh "12" being the moveable assets charged & Exh "24" being thc irnmoveable propertics mortgagecl) be attachecl / takcn possession of ld to ihe extent of realising thc dues / sholtfall, as the case mav ent of furthcr shortfall, thc said Dcfendants be procecLled against oI personal declce arld business assets / No. 1 arcl pcrsonal assets / estatcs of sold for rcafising the Llues / shortlal], as

(iv) Dcfendaft No. 1, thc Borro]'er, ordered to pay, iointly davs, thc Decreed Amoun faiting to pa], and dis assets forming moveable moltgaged ar1t, $,ithin a Periocl of 30 event of the said De{endants or in the evcnt oF shortfall, the an (covcred by Lxh "19" bcing the "24" being, thc jmmoveirble Propertics possession of and be sold to the cxterlt oI assets / egtatcs and 3 be q} attachcd ancl 5, the (,uarantos, are as thc case lnay be, arld in thc cYent of further bc proceeded against Personallv Lx- h'a,v of Lrusiness assets / personal assets / cstates o[ Defendanl assets / estiltes of Delendant No. 4 and 5 be attached and the rlues / shortfall, as the (asc nlay be; (r,) Bascci on thc Onginiil Documcnts Placcd beforc this Tribunal, strpported b1-the pleadirgs, it is Dcclarecl that thcrc is a valid, subsisting and enJorceable hypothccation / charge on lhe moveable assets of the Defefclant No t' the Boro$'er, as per Exh "l2" ancl Exh "l9" i1 favour of the Applicant virlidly securing the Agricultural Tr:rm Loan and Crop l.oirn; and

(vi) B.iscd on the Original Docurncnts Placed bclore this Tribunal, supPorted by the plcadings, it is Declared that Lhere is a valid, subsisting and cnJorceable mortgage over the iDmoveable Pr'oPerties described in Exh "24" in lavorrr of the Applicant validly securing the Agdcultural Tcrm Loan and Crop Loan; (\,ii) Defendant No. I to 5 are dirccted [o dcclare, on oath, to the Re'overy Officer, Ordcr'lO \ I966 ol2{rl6 (E\-pdrle)(Fin.L) and b1c assets him for OI Debts Recovery Tribunal lll, N't11mbai, both moveablc of therrs as also DeFendant No. 1 is directed to cieclar'c, and immovcable assets o{ the business carricd on bv attachment and sale as directed under Clause (iii and

(viii) Dcfcndant No. 1 to 5 are injuncted Lxh"12"&"19" and Exl "24" as also above in any manner wha Amounts under Clause (ii)

(ix) Rccovery Certificatcs be Recovery O

(x) Partics are (l'ronounced ir1 open Court) Datecl : 26tr' February 2019 / or Clause the assels describeLl i1 as per Claose (vii) recovery of Decreed per abovc decrees and sent to the

- III, N{umbai, bclore the Ilecovery OIIicer, Debts Recover) be sent to all conccrned free of cost and lile be consigned TS PresidiDg Officer, Debts Rccoverl T|ibunal - lll, Ntumb:ri. moveablc