Debts Recovery Tribunals and Appellate Tribunals

BANK OF MAHARASHTRA vs MAHESH NARAYAN on 19 June 2019

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Bank of Maharashtra,

a body corporate under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1

and having its Head Office at'Lok Mangal', 1501", Shivaji Nagar, Pune - 5 and one of its branch at Moreshwar Smruti, Nirmal Chawk, Nirmal, Vasai, Dist: Thane - 401 304 thro its Branch

L. Mahesh Narayan Patil,

Principal Borrower

Post: Khardi Koshimbe, T

Presented on : 08/08/201,6

Registered on : 24/02J2018

Transferred on : 19/04/2018

Decided on:19/06/20L9

Duration : 25 (D)/03(My01, (Y)

Defendant No. 1

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.513 of 2018

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2. Mr. Narayan Magl

Guarantor

Post: Khardi

Dist: Thane

Defendant No. 2

J

ts, Shrushti Complex,

Virar (West), Taluk: Vasai,

Defendant No. 3

Present

Sachin A Koli, Advocate, Counsel for Applicant Bank Defendants remained ex-parte This Original Application (OA) is fiied by Applicant under Section L9 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 {or the recovery of a sum aggregating to Rs. 1'J.,22,763/20 (Rupees etaji Mr G

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Order TOA 513 of 2018 (Ex-paftexFinal)

Eleven lacs Twenty Two thousand Seven hundred and Sixty Three and paise Twenty only) in 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 facility to Defendant No. 1- Defendant No. 2 and 3 provided their personal as addi ty for the credit facility. Defendant No. 1 and 2

property as security for the credit facility.

...|..:.

jointlr held immoveable

Factual matrix :

1.(a) As per OA, Applicant

Rs. 15,00,000/- ("TL") to

Defendant No. 1 based on the

and security creation by him and

the additional security of

guarantee from Defendant

No. 2 and 3.

(b)'Defendant No. 1

their House No. 13 (in Survey No. 2/4),

Khardi-

I{rardiin Taluk Vasai in the District Thane to secure ting Deed of Simple Mortgage and got the same Vasai - II.

No. 1 committed various defaults in complying with conditions of the TL and, in spite of several reminders, failed to repa instalments due under TL, resulting in the Applicant issuing Recall Notice to all the Defendants,calling upon them to repay the entire qutstanding amount of the TL and filed this OA on their failure to repay.

2. (a)Tribunal, after satisfying itself of the OA being within limitation and falling within its territorial jurisdiction as per RDDB Act, ordered issue of Summons to erm the Defendants i\.

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Order TOA 513 of 2018 (Ex-parte)(Final)

(b) Summons to the Defendants were sent by Registered Post with Acknowledgement Due. While postal covers addressed to Defendant No. 1 and 2 got served and Acknowledgement Due Card received back, in respect of Defendant No. 3, neither Acknowledgement Due Card received back nor the postal cover returned undelivered. However, the download from Postal Site confirmed delivery of the cover on Defendant No. 3, thus service on all the Defendants complete. Applicant filed Service Affidavit.

(c) As Defendants did not appear either in person or through file Written Statements, the Defendants were set ex-parte Order of the Tribunal.

Proceedings :

3. As directed by the Tribunal, Applican Babu Dhandore, Branch Manager, Claim as Annexures (which have been taken on and marked as "Exhibits")

and also filed Certified

together with the Certificates

under Bankers Books of

as Annexures (which are marked

as Exh7blt "21"

ts filed as Exhibits and gone through

relevant for the Tribunal to consider

by the Tribunal,

and dispose

on

did not

an

found

Exhibit

o . "'e*Fa,gitP'

Document

,r13r,

Request Letter of Defs (Original)

"-l_4"

Demand Promissory Note (Original)

,r15r,

Receipts by Def 1 (3 Nos.)(Original)

,r16r,

Comp. Deed of Hypothecation (Orl)

,r17r,

Personal Guarantee of Def 2 & 3 (Or1)

,r18r,

Deed of Simple Mortgage by Def 1 &2

i/ r of joint immoveable property

(Regd with SRO, Vasai-If (Original)

,r20r,

Recall Notice (Office Copy)

#ffirinLoan

ff**oo'ooo/-)

Order TOA 513 of 2018 (Ex-parte)(Final)

Observation on Evidences provided& Claim made :

The Statement of Account filed by the Applicant, certified as per Bankers Books of Evidence Act, 189'1, 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 has gone unchallenged as Defendants remained ex-parte. In my view, there is no question of disbelieving the Exhibits and C1aim and other evidences let in by the Applicant and the Applicant has beyond reasonable doubt to the extent of sanctioning the documentation and disbursement of the TL.

5. The Applicant has claimed interest at the L

o//o p.a. with quarterly rests

from the date of fiting of the OA till

regards to Sec.

19(20) of the RDDB Act (which

Civil Procedure Code,

1908) the contract between the

comes to an end on

the filing of the OA.Thus tfib

in awardin g pendentelite

and future interest.

the

of interest charged bY banks for

ta

similar facility, I

interest of justice will be served if the rate interest is 10.00% p.a. on simple interest basis'

6. In the

the Original Application is being allowed and terms.

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ORDER

(0 This Original Application is allowed with costs and decree to be issued on the terms set out below;

(ii) There shall be a Decree in favour of the Applicant for Rs. 1'1,22,763/20 (Rupees Eleven lacs Twenty Two thousand Seven hundred and Sixty Three and paise Twenty only) alongwith future interest at the rate of 10.00% per annum (on at

Order TOA 513 of 2018 (Ex-par1e)(Fina1) simple interest basis) from the date of filing of the Original Applicafion till the date of realisation in respect of Rupee Term Loan ("Decreed Amount,for RTL"); (ii| Defendant No. 1,, the Borrower, Defendant No. 2 and 3, the Guarantors, and Defendant No. 2, the Mortgagor (alongwith Defendant No. 1), are ordered to pay, jointly and severally, to the Applican! within a period of 30 days, the Decreed Amount for RTL and, in the event of the said to pay assets and discharge the dues as directed or in the event of forming security for the Rupee Term Loan (covered by the moveable assets charged & Exh "18" the immovea mortgaged) be attached / taken s<$ld and be to the extent of realising the dues / shortfall, as the in the event of further shortfall, the said Defendants be by way of personal decree and business / estates of Defendant No. 1 and personal assets / No. 2 and 3 be attached and sold for realising the dues may be;

(iv) Based on the before this Tribunal, supported by the pleadings, it is is a valid, subsisting and enforceable hypotheca moveable assets of the Defendant No. L, the Borrower, favour of the Applicant validly securing the Rupee T (") Documents placed before this Tribunaf supported by the it is Declared that there is a valid, subsisting and en-forceable mortgage over the immoveable properties described in Exh "18" in favour of the Applicant validly securing the Rupee Term Loan; ("i) Based on the Original Documents placed before this Tribunal, supported by the pleadings, it is Declared that there is a valid, subsisting and enforceable joint

Order TOA 513 of 2018 (Ex-pafie)(Final) and several and unconditional and irrevocable personal guarantee of Defendant No. 2 and 3 (8xh"17") validly securing the Rupee Term Loan;

(vii) Defendant No. L to 3 are directed to declare, on oath, to the Recovery Officer, Debts Recovery Tribunal - III, Mumbai, both moveable and immoveable assets of theirs as also Defendant No. L is directed to declare, on oath, both moveable and immoveable assets of the business(es) carried on by him purpose of attachment and sale as directed under Clause (iii) above;

(viii) Defendant No. 1 to 3 are injuncted from with the ln Exh"16"an'td Exh "18" as also assets th as per.Clause (vii) above in any manner whatsoever till the com Clause (ii) above;

(ix) Recovery Certificate be issued Recovery Officer, Debts Decreed Amount under decree and sent to the T Mumbai; (*) Parties are Tribunal - III, M ("i) Copies of (Pronounced in open Court) Dated . 19tn June 2019 the Recovery Officer, Debts Recovery to all concerned free of cost and File be consigned Presiding Debts Recovery Tribunal - III, Mumbai. to

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