BANK OF MAHARASHTRA vs ANGEL CREATION on 19 June 2019

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n. I L-5- Bank of Maharashtra, a body corporate under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1 and having its Head Office at'Lok Manga(, 1501, Shivaji Nagar, Pune - 5 and one of its branch Moreshwar Smruti, Nirmal Chawk, Nirmal, Vasai, Dist: Thane - 401 304 thro its Branch 1,. Angel Creation (Sole Prop Fiifrr), Principal Borrower Prop : Mr. Nitin Vinod 1302 (Old), Rai V Uttan Road, Bha

2. Mr. Vijay Guarantor dJ th Naskar, B/ Building, Bhayandar (East), Taluk: Dist: Thane Presented on z 08/08/20L6 Registered on : 24/02/2018 Transferred on : 19/04/20L9 Decided on:19/06/20L9 Durati on : 25 (D)/03 (My01 (Y) licant Defendant No. L Defendant No. 2 Defendant No. 3 Defendant No. 4 IN THE DEBTS RECOVERY TRIBUNAL - III AT MUMBAI DATED THIS 19th DAY OF IUNE 2019 PRESENT : SHRI. T S ASOKRAJ PRESIDING OFFICER T O A No. 514 of 20L8 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Shri. Sachin A Koli, Advocate, Counsel for Applicant Bank Defendants remained ex-parte Present .-- La---

4. Mrs. Veena Vinod Mahtre, Guarantor & Mortgagor 1302 (Old), Rai Village, Swagat Niwas, Uttan Road', Bhayandar (West), Dist: Thane

Order TOA 511 of 2018 (Ex-pafie)(Final) 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 aggregattng to Rs. 24,20,643/74 (Rupees Twenty Four lacs Twenty thousand Six hundred and Forty Three and paise Seventy Four only) in respect of the various credit facilities mentioned in the OA alongwith cost charges, pendente lite this OA till its realisation. of filing of future interest as stated therein from the Parties : Applicant is a "Bank" within Sec. 2(d) of the RDD to Defendant No. 1. Angel Creation, theDefendant No. Firm ("Defendant No. 1 Firm") lith .B is a Sole Proprietary as the Sole Proprietor Defendant No. 2 to 4 are their joint and several personal guarantee as t facilities provided by the Applicant to Defendant No. 1 Firm. also mortgaged her immoveable property as security for the cre request of Mr. Nitin Vinod Mahtre. as the Sole Proprietor of 1 Firm, Applicant provided Rupee Term Loan of Rs.9,97,000/- Cash Credit Facility of Rs. 15,00,000/- ("CCF")(collective1y called "Credit Facilities") to Defendant No. 1 Firm based on the documentation and security creation by Mr. Nitin Vinod Mahtre. the Sole Proprietor, who executed all the documents and created all securities for and on behalf of and in the name of the Defendant No. 1 Firm.

(b) Defendant No. 2 to 4 provided additional security in the form of joint and and 1errder of credit facilities several personal guarantee. i

J OrderTOA 511 of 2018 (Ex-parte)(Final)

(c) Prior to sanction of the Credit Facilities by the Applicant Defendant No. 4 also created mortgage on her immoveable property being House bearirig no. 1302 (Old), Rai Village, Swagat Niwas, Uttan Road, Bhayandar (West) in the District Thane by executing Deed of Simple Mortgage and got the same registered with SRO, Thane - II.

(b) As per OA, the Defendant No. 1 Firm and Mr. Nitin Vinod Mahtre, the Sole Proprietor, committed various defaults in complying with terms and the the the conditions of the Credit Facilities and, in spite of Defendant No. 1 Firm and Mr. Nitin Vinod Mahtre, obligation to repay the amount due under the CCF and also instalments due under RTL. Applicant recall outstanding amount in respect of the Credit Facilities and to all the Defendants (Defendant No. 1 Firm to the atten Nitin Mahtre. the Sole Proprietor) calling upon them amount of the Credit Facilities and, on their A has been filed.

2. (a)Tribunal, after satisfying within limitation and falling within its RDDB Act, ordered issue of Summons to the Defendants.

(b) Summons sent by Registered Post with ay were Acknow t postal covers addressed to Defendant No. 1, 2 Acknowledgement Due Card received back, postal cover No. 3 returned undelivered with postal endorsement Applicant filed Service Affidavit. As per Regulation 19 of The of Practice 2010 (framed pursuant to power conferred under sub- Section(1) of Section 22 of RDDB Act), the service is deemed to have been made on Defendant No. 3.

(c) As Defendants did not appear either in person or through advocate and did not file Written Statements, the Defendants were set ex-parte on14/11./2018 by an Order of the Tribunal.

Order TOA 5 1 I of 2018 (Ex-parte)(Fina1) Proceedings :

3. As directed by the Tribuna| Applicant filed, through Mr. Amit Babu Dhandore, Branch Manager, Claim Affidavit enclosing various Documents as Annexures (which have been taken on record by the Tribunal and marked as "Exhibits") and also filed Certified Statement of Account together with the Certificates under Bankers Books of Evidence Act, 1891,, as Annexures (which are marked as Exhibit "23", "24" & "25"). Of the Documents filed as and gone through by the Tribunal, the following are found consider and dispose of the OA on merit. 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 to Exhibit S. No Facility D;#Frnent .#, ,r11r, Request Letter of Defs (Original) ,r12r, Demand Promissory Note (Original) Receipts 6yz Def 1. (2Nos.)(Original) ,r13r, Comp. Deed of Hypothecation (Orl) ,r74r, ,r15r, -1" Rupee Term Loan (Rs.9,97,000/ -) Persohal Gtlalantee '( J igirral)' ::" ":i"'t':"""'' of. Def 2 to 4 Letter of Defs (Originat) Ss.t'tiegt "1_6" ,r17r, Demand Promissory Note (Original) Receipt by Def 1 (Original) ,r19il ,r19r, Comp. Deed of Hypothecation (Or1) ,r20r, .i:& -a.; g- "# &.k*. %

2. Cash (Rr. Personal Guarantee of Def 2 to 4 (Original) Deed of Simple Mortgage by Def 4i/r of her immoveable property (Regd with SRO, Thane) (Origina1) ,r21r, ,r22r, Common for all Credit Facilities Recall Notice (Office Copy) Facility

Order TOA 5 I I of 201 8 (Ex-parte)(Final) Applicant is based on various Documents (including the above referred Exhibits) filed alongwith Claim Affidavit, which is a sworn Statemen! which has gone unchallenged as Defendants remained ex-parte. 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 Credit Facilities, completing Documentation and disbursement of the Credit Facilities.

5. The Applicant has claimed interest at the rate of 12.40% p.a in respect of both RTL and CCF from the date of filing of the their realisation. Having regards to Sec. 19(20) of DB Act (which is analogous to Sec. 34 of Civil Procedure Code, 1 between the Applicant and Defendants comes to an end on the the Tribunal has discretion in awarding pendente Considering the rate of interest charged by banks for of justice witl be served if t*6 of the opinion that interest warded at the rate of \1.00% p.a. te on simple interest basis and

6. In the light of a Original Application is being allowed and Order passed terms.

ORDER

(i) Application is allowed with costs and decree to be issued on the out below; (i0 There shall be a Decree in favour of the Applicant as under - (u) For Rs. 8,01.,256/30 (Rupees Eight lacs One thousand Two hundred and Fifty Six and paise Thirty only) alongwith future interest at the rate of 11.00% per annum (on simple interest basis) from the date of filing of the

Order TOA 5 I I of 2018 (Ex-parte)(Final) Original Application till the date of realisation in respect of Rupee Term Loan ("Decreed Amount for RTL"); (b) For Rs. 1.6,19,387 /44 (Rupees Sixteen lacs Nineteen thousand Three hundred and Eighty Seven and paise Forty Four 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 1n respect of Cash Credit Facility ("Decreed Amount for

(iii) Angel Creation ("Defendant No. 1 Firm"), Mr. Nitin Vinod Sole No. 2 tffi, the Guarantors, y, jointly and severally, to the Applicant, within a period of for RTL and, in the event of the said tin Vinod Mahtre and Defendant No. 2 to 4 failing to the dues as directed or in the event of shortfall, the assets the Rupee Term Loan (covered by Exh "-L4" beirrg the charged & Exh "21" being the immoveable attached / taken possession of and be sold to the extent / shortfall, as the case may be, and in the event of said Defendant No. 1 Firm, Mr. Nitin Vinod Mahtre 2 to 4 be proceeded against personally by way of assets / other assets of Defendant No. 1 Firm and of Mr. Nitin Vinod Mahtre and Defendant No. 2 to 4 sold for realising the dues / shortfall, as the case may be; (i") Defendant No. 1 Firm, the Borrower, Mr. Nitin Vinod Mahtre, Defendant No. 2 to 4, the Guarantors, and Defendant No. 4, the Mortgagor, are ordered to pay, jointly and severally, to the Applicant, within a period of 30 days, the Decreed Amountfor CCF and, in the event of the said Defendant No. 1 Firm, Mr. Nitin Vinod Mahtre and Defendant No. 2 to 4 failing to pay and discharge the dues as directed or in the event of shortfall, the assets forming security for the Cash Proprietor of the Defendant No. 1 Firm), and Defendant No. 4, the Mortgagor, are estates

Order TOA 511 of 2018 (Ex-parte)(Final) Credit Facility (covered by Exh "19" being the moveable assets charged & Exh "21" being the immoveable property mortgaged) be attached / taken possession of and be sotd to the extent of realising the dues / shortfall, as the case may be, and in the event of further shortfall, the said Defendant No. 1 Firm, Mr. Nitin Vinod Mahtre and Defendant No. 2 to 4 be proceeded against personally by way of personal decree and business assets / other assets of Defendant No. 1 Firm and personal assets / estates of Mr Mahtre and Defendant No. 2to 4 be attached and sold for as the case may be; (") Based on the Original Documents placed pleadings, it is Declared that there is by the ting and enforceable hypothecanon / charge on the of efendant No. 1 Firm, the Borrower, as per Exh "L4" securing the Rupee Term Loan w of the Applicant validly ("i) Based on the Original this Tribunal, supported by the pleadings, it is isa

(vii) mortgage over valid, subsisting and en{orceable described in Exh "2\" irr favour of the Applicant the Rupee Term Loan and Cash Credit Facility; Documents placed before this Tribunaf supported by the that there is a valid, subsisting and enforceable joint and unconditional and irrevocable personal guarantee of t No. 2 to 4 validly securing the Rupee Term Loan (Exh "15") and Cash Credit Facility (Exh"20");

(viii) Mr. Nitin Vinod Mahtre and Defendant No. 2 to 4 are directed to declare, on oath, to the Recovery Officer, Debts Recovery Tribunal - III, Mumbai, both moveable and immoveable assets of theirs as also Mr. Nitin Vinod Mahtre, as Sole Proprietor of Defendant No. 1 Firm, is directed to declare, on oath, both

Order TOA 511 of 2018 (Ex-parte)(Final) moveable and irnmoveable assets of the Defendant No. 1 Firm for the purpose of attachment and sale as directed under Clause (iii) and f or Clause (iv) above; (ir) Defendant No. 1 Firm, Mr. Nitin Vinod Mahtre and Defendant No. 2 to 4 ate injuncted from dealing with the assets described in Exh "-L4" & "19" an:rd' Exh "21" as also assets declared on oath as per Clause (viii) above in any mannel whatsoever tilI the complete recovery of Decreed Amounts Clause (ii) above;

(r) Recovery Certificates be issued forthwith as per above decrees to the Recovery Officer, Debts Recovery Tribunal - umbai;

(xi) Parties are directed to appear Tribunal - III, Mumbai; , Debts Recovery

(xii) Copies of final order be to records. of cost and File be consigned TS Presiding Officer, Debts Recovery Tribunal - III, Mumbai. all