Debts Recovery Tribunals and Appellate Tribunals
MAHARASTRA GRAMIN BANK vs M/S. KARTIKA ISPAT PVT LTD on 16 May 2019
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Maharashtra Gramin Bank,
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a Regional Rural Bank constituted under the Regional )
Rural Banks Act,1976 having its Head Office at Jeevanshri, Plot No. 35, Sector G, Town Centre, CIDCO, Aurangabad and one of its branch Nashik City Branch at Ashok Pride, Govind New Mumbai - Agra Road, Nashik - 422
through its Branch Manager
1,. M/s. Kartika Ispat PvL Ltd.,
Regd Office : Gat No. 172,
Near Wadhawa
MIDC lndl. Estate,
Dist. Nashik -
2. Shri.
of
Arya, (Son)
Behind Mhasoba Mandir,
Naslrik - 422101.
(b) Smt. Laxmi Dayakishan Arya, (Wife)
House No. 606 / 0214 / 30 / 24,
Village :Deolali, Nashik Road, Nashik :422101'
(c) Mrs. Kavita Anil Singal, (Daughter)
10'1, / 102,"8" Wing, EdenGardens, Chembur, Presented on : 27/07/20'15
Registered on : 31,/12/20L5
Transferred on : 21,ft0/20L6
Decided on:L6/05/2019
Duration : L6(D)/05(MY03(Y)
Applicant
Defendant No. 2(a)
Defendant No. 2(b)
IN THE DEBTS RECOVERY TRIBUNAL - III AT MUMBAI
DATED THIS 16th DAY OF MAY 2019
PRESENT : SHRI. T S ASOKRAJ
PRESIDING OFFICER
T O A No.1535 of 20'l'6
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) .. Defendant No. 2(c)
Mumbai - 400 088
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n
3. Shri. Manish Dayakishan Arya,
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(Director of Def 1 and Guarantor & Mortgagor) )
A-2, Pride Monarch, Behind Mhasoba Mandir, )
Nashik Road, Nashik - 422101,
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4. Smt. Laxmi Daya Kishan Arya,
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(Guarantor & Mortgagor)
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House No. 606 / 021,4 / 30 /. 24,
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Village :Deolali, Nashik Road, Nashik :422'J.01" )
5. M/s. Rohan Ispat Pvt. Ltd.,
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A-2, Pride Monarch, Behind Mhasoba Mandir, )
Nashik Road, Nashik - 422101,
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(Guarantor & Mortgagor)
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Present: Shri. Sachin A Koli, Advocate,
Defendants remained ex-parte
This Original Application (OA) is filed
Recovery of Debts Due to Banks
(since changed to "Recov.ry o4f
Defendants for the recovery of a
Defendant No.4
t
A
t
Section 19 of the
Act,1993 ("RDDB Acf')
Act, 1993") against the
to Rs. 14,87,11,,269/- (Rupees
pplicant Bank
Fourteen crores Eighty Seven
thousand Two hundred and Sixty Nine
only) in respect of
mentioned in the OA alongwith cost,
charges, pendente lite
stated therein from the date of filing of this OA till its realisa A
Rural Bank established under Sec. 3 of Regional Rural Bank Act, 1
by Bank of Maharashtra) and a "Barrk" within Sec. 2(d) of the RDDB Act lender of credit facility to Defendant No. 1
Defendant No. 1, the borrower, is a company registered under the Companies Act, 1956 ("Defendant No. 1 Company") with Defendant No. 2 and 3 as the Directors.
Defendant No. 4 is an individual and wife of Defendant No. 2.
a
J
Order TOA 1535 of 2016 (Ex-parte)(Final)
Defendant No. 5 is a company registered under the Companies Act, 1956
("Defendant No. 5 Company") with Defendant No. 2 and 3 as the Directors.
Defendant No. 1 Company, Defendant No. 3 and 4 and D
are the mortgagors of their respective immoveable additional security for the credit facilities availed by the Defendant N, from the Applicant.
:ia.*r'
On the death of Defendant No. 2, on an
No
of 2018) taken out by
the Applicant Tribunal by its Order
d Defendant No. 2(a),
Defendant No. 2(b) and Defendant N
of Defendant No. 2, tobe
No. 2 and discharge the
brought on record to represent
guarantee obligation.
OA
amended on 13/12/2018 and
Defendant No. 2(a),
record.
Defendant No. 2(c) were brought on
Factual makix
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1. (u) No. l" Company was enjoying various credit facilities of India and on being approached by Defendant No. 1 transfer of credit facilities, Applicant provided Working Capital the form of Cash Credit Facility of Rs. 1200,00,000/ - ("CCF"), Bank Guarantee Facility (security f pefiormance f financial) of Rs. 1L0,a0,000/- ('BG') and Term Loan of Rs. 104,00,000/- ('RTL') (CCF, BG and RTL are hereinafter collectively referred to as "the Credit Facilities") to Defendant No. 1 Company based on the documentation and security creation by Defendant No. 2 and,3, as authorised by the Board Resolution dated 08/04/ 201,4. Defendant No. 2 to 4 and Defendant No. 5 Company prorzided joint and several guarantee as additional security for the credit facilities availed by the Defendant No. l Company from the Applicant.
Order TOA 1535 of 2016 (Ex-paftexFinal)
(b) Defendant No. 2to 4 and Defendant No. 5 Company provided joint and several guarantee as additional security for the Credit Facilities.
(c) Defendant No. 1 Company (in respect of its Non-Agricultural Land in Gat No. 172 n Village Malegaory Taluk Sinnar in District Nashik), Defendant No. 3 (in respect of his Flat No. A-2, Ground Floor, Pride Monarch Apartment in Village Deolali, Taluk & Diskict Nashik), Defendant No. 4 (in respect of her Flat No. F- L01, First Floor, Green Meadow Co-operative Housing in Village Deolali, Taluk & District Nashik) and Defendant No. 5 of its Non-Agricultural Land in Gat No. 391 in Village ln District Nashik) provided mortgage security as for the Credit Facilities by way of Mortgage of Titl'e Deeds (d) As per the OA, after availing the the Defendant No. L Company failed to deposit the sale ted goods in the CCF Account, failed to pay the RTL Account failed to provide funds in the BG Guarantees which were .; invoked by the beneficiarids pay interest in respect of debit balances in all the Facilities. It is further averred that there was the accounts 28/02/2015. No. 2 to of various documents. Consequently, Assets and got classified as so on
2. (a) pon the Defendant No. 1 Company, Defendant t No. 5 Company to repay the entire outstanding Facilities and, on their failure to repay, the OA has been after satisfying itself of the OA being within limitation and falling within its territorial jurisdiction as per RDDB Act, ordered issue of Summons to Defendant No. 1" Company, Defendant No. 2 to 4 and Defendant No. 5 Company, which was completed.
(b) After the transfer of the OA to this Tribunal, Transfer Notices were ordered to be served on the Defendant No. 1 Company, Defendant No. 2 to 4 and Defendant No. 5 Company, which were sent by Registered Post with
Acknowledgement Due. Postal covers addressed to Defendant No. 1 Company (to their Flat No. A-2, Nashik Road Address) and Defendant No. 3 and Defendant No. 5 Company got delivered. However the postal cover addressed to Defendant No. 2 returned with postal. endorsement "Deceased" and the postal cover addressed to Defendant No. 4 returned with postal endorsement "unclaimed". Consequently, Defendant No. 2(a), Defendant No. 2(b) and Defendant No. 2(c), representing Estate of Defendant No. 2 brought on record and the Postal covers were sent to them by with Acknowledgement Due. While postal covers addressed to 2(u) and 2(b) (Defendant 2(b) and Defendant No. 4 are one and the returned undelivered with postal valid service as Regulations of Defendant No. 2(c) got served and Transfer Notices were served Applicant filed Service Affidavit.
(c) As Defendants did not a file Written Statements, & ppear or through advocate and did not set ex-parte on07/03/2019bY an Order of the Proceedings As Applicant filed, through Mr. Suhas Dinkar Sawant, Affidavit enclosing various Documents as Annexures taken on record by the Tribunal and marked as "Exhibits") Certified Statement of Account together with the Certificates Books of Evidence Act, 189L, as Annexures (which are marked as Exhibit "39','40","41"&"52"). Of the Documents filed as Exhibits and gone through by the Tribunaf the following are found relevant for the Tribunal to consider and dispose of the OA on merit. .alh,.. -.r-(which constitutes cover addressed to Card received. Thus J.
Order TOA 1535 of 2016 (Ex-parte)(Fina1) Exhibit Document S. No Facility ,r11r, Sanction Letter (Office CoPY) ,r13r, Demand Promissory Note (Original) ,r\4r, Cash Credit Facility Agreement (orl)
Cash Credit Facility (Rs. 12,00,00,000/-) '11" "19"
1. "21"
2. ttaA, /-.* '26" J. ,r28r, ,r27r, ,r31r, ,r32r, JJ ,r34r,
4. ,r29il ,r30r, JO BG Facility Sanction Letter (Office CoPY) (Rs. 110,00,0A0/-) Demand Promissory Note (Original) Counter Guarantee for BG (Original) Rupee Term Loan (Rs. 104,00,000/-) Sanction Letter (Office CoPY) Demand Note Agreement Loan Common for all Comp. tion (Orl) Credit Facilities ') ,,4 &
i/r of proposed of Def3 i/, of proposed (Original) of Def4 i/r of ProPosed mortgage (Original) DecLr of Def5 i/r of proposed mortgage (Original) Memorandum of EntrY recorded by Applicant i/r of mortgage created by DefL, 3, 4 &. 5. (Original) Letter from Def 1-,3, 4 & 5 confirming deposit of title deeds i/r oI mortgage created (Original) Recall Notice (Office CoPY)
of
Order TOA 1535 of 2016 (Ex-parte)(Fina1) Obseryation on Evidences provided& Claim mede:
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 Apptcant is based on various Documents (including the above referred Exhibits) filed alongwith Claim Affidavit, which is a sworn Statement, which has gone unchallenged as the Defendants remained ex-parte. Ir, *y view, there is no question of disbelieving the Exhibits and Claim and other evidences let in by the Applicant and the Applicant has reasonable doubt to the extent of sanctioning the Credit F documentation and allowing drawls of the acilities
The Applicant has claimed interest at in respect of CCF and RTL and at the p.a. with monthly rests %p. monthly rests in respect of BG Facility, all from Having regards to Sec. 1O(ZQof OA till its realisation. is analogous to Sec. 34 of Civi] Procedure Code, 1 the between the Applicant and Defendants comes to an filing of the OA. Thus the Tribunal has discretion in aw future interest. Considering the rate of interest charged facilities, I am of the opinion that interest of justice rate interest is awarded at the rate of 12.00% p.a. rate of 14.00% p.a. for BG Facility on simple interest
6. above discussions, the Original Application is being allowed and on the following terms.
Order
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 as under - (u) For Rs. 13,27,15,896/- (Rupees Thirteen crores Twenty Seven lacsFifteen thousand Eight hundred and Ninety Six only) alongwith future interest at the rate of 12.00% 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 Facility ("Decreed Amount for CCF"); (b) For Rs. 76,42,007 / - (Rupees Seventy Six lacs Forty and Seven only) alongwith future interest at the rate of um (on simple interest basis) from the date of filing of the ti11 the date of realisation in respect of Bank Guarantee F,
(iii) Defendant No. 1 by his Estate), Company, Amount for BGF"); (") For Rs. 83,53,366/- (Rupees hundred and Sixty Six only) per annum (on simple Application till the date ("Decreed Amount for ,r); *. Eighty Three thousand Three at the rate of 12.00% of filing of the Original of Rupee Term Loan No. 2 (since deceased and represented Defendant No. 4 and Defendant No. 5 Defendant No. 3, Defendant No. 4 and the Mortgagors, are ordered to pay, jointly and t, within a period of 30 days, the Decreed Amount for event of the said Defendant No. L Company, Estate of 2 (represented by Defendant No. 2(a), Defendant No. 2(b) and No. 2(c), the Legal heirs), Defendant No. 3, Defendant No. 4 and Defendant No. 5 Company, failing to pay and discharge the dues as directed or in the event of shortfall, the assets forming security for the Cash Credit Facility (covered by Exh "28" being the moveable assets charged & Exh "30" read with Ex}:. "29" being the immoveable properfies mortgaged by Defendant No. 1 Company, Defendant No. 3 and 4 and Defendant No. 5 Company) be attached f taken possession of and be sold to the extent of real.ising the dues f shortfall,
as the case may be, and in the event of further shortfall, the said Defendant No. 1 Company, Estate of Defendant No. 2, Defendant No. 3, Defendant No. 4 and Defendant No. 5 Companybe proceeded'against personally by way of personal decree and business assets / other assets of Defendant No. 1 Company, Estate of Defendant No. 2 and personal assets / estates of Defendant No. 2(a), Defendant No. 2(b) and Defendant No. 2(c) to the extent each of them inherited / succeeded to the Estate of Defendant No. 2 and personal / estates of Defendant No. 3 and 4 and business assets / other No. 5 Company,be attached and sold for realising the dues / ase may be; and represented ( (i") Defendant No. 1 Company, by his Estate), Defendant Company, the Guarantors, Defendant No. 5 Company, Defendant No. 3, the No.
Defendant No. 4 and ordered to pay, jointly and db. severally, to the Applicant, ffii a 30 days, the Decreed Amount for BGF and, in the event No. 1 Company, Estate of Defendant No. No. 2(a), Defendant No. 2(b) and Defendant No. 2 ), Defendant No. 3, Defendant No. 4 and Defendant N to pay and discharge the dues as directed or in the assets forming security for the Bank Guarantee Exh "28" being the moveable assets charged & Exh "30" being the immoveable properties mortgagedby Defendant , Defendant No. 3 and 4 and Defendant No. 5 Company) be taken possession of and be sold 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 Company, Estate of Defendant No. 2, Defendant No. 3, Defendant No. 4 and Defendant No. 5 Company be proceeded against personally by way of personal decree and business assets / other assets of Defendant No. 1 Company, Estate of Defendant No. 2 and personal assets / estates of Defendant No. 2(a), Defendant No. 2(b) and Defendant No. 2(c) to the l0
extent each of them inherited / succeeded to the Estate of Defendant No. 2 and personal assets / estates of Defendant No. 3 and 4 and business assets / orher assets of Defendant No. 5 Company, be attached and sold for realising the dues f shoftf.all., as the case may be; (") Defendant No. L Company, Defendant No. 2 (since deceased and represented by his Estate), Defendant No. 3, Defendant No. 4 and No. 5 Company, *re Guarantors, and Defendant No. 3, 4 and to and severally, to the Applicant, within a p RTL and, in the event of the said Defendant No. 2 (represented by Defendant No. 2(c), the Legal heirs), Defendant No. 5 Company, in the event of shortfall, the (covered by Exh "28" Exh "29" being the being Company, / taken as the case eriod of 30 the for No. 1 any, Estate of o. Defendant No. 2(b) and No No. 4 and the dues as directed or for the Rupee Term Loan charged & Exh "30" read with mortgagedby Defendant No. 1 Defendant No. 5 Company) be attached the extent of realising the dues f shortfall, of further shortfall, the said Defendant No. @np 1 Comp No. 2, Defendant No. 3, Defendant No. 4 and N pany be proceeded against personally by way of personal assets f other assets of Defendant No. 1 Company, Estate No. 2 and personal assets / estates of Defendant No. 2(a), No. 2(b) and Defendant No. 2(c) to the extent each of them inherited / succeeded to the Estate of Defendant No. 2 and personal assets / estates of Defendant No. 3 and 4 and business assets / other assets of Defendant No. 5 Company, be attached and sold for realising the dues / shortfall, as the case may be; Defendant No. 5 Company, the Mortgagors, are ordered
(vi) Based on the Original Documents placed before this Tribunaf supported by the pleadings, it is Declared that there is a valid, subsisting and enforceable hypothecatron / charge on the moveable assets of the Defendant No. 1 Company, the Borrower, as per Exh "28' irr favour of the Applicant validly securing the Cash Credit Facility, Bank Guarantee Facility and Rupee Term Loan;
(vii) Based on the Original Documents placed before this by the pleadings, it is Declared that there is a valid, subsisting mortgage over the immoveable properties described in Exh "30" Exh "29" il'L favour of the Applicant validly Cash Qrcdit Facility, Bank Guarantee Facility and Rupee Term
(viii) To the Recovery Ofhcer, Debts 3 and 4 are directed to declare, Mumbai,Defendant No. and immoveable assets of theirs; Defendant No. & to declare, on oath, both moveable and immovea No. 1 Company and Defendant No. 5 Company; a), Defendant No. 2(b) and Defendant No. 2(c) are oath, both moveable and immoveable assets of Estate of 2 including moveable and immoveable assets inherited by each of them to the Estate of Defendant No. 2, or intestate succession, for the purpose of as directed under Clause (iii) and f or CLause (iv) and / or (ir) Defendant No. 1 Company, Defendant No. 2(a), Defendant No. 2(b) and Defendant No. 2(c), Defendant No. 3, Defendant No. 4 and Defendant No. 5 Company are injuncted from dealing with the assets described in Exh "28" artd Exh"SO" read with Exh"29" as also assets declared on oath as per Clause (viii) above in any manner whatsoever till the complete recovery of Decreed Amounts under Clause (ii) above; t2
(*) Recovery Certificates be issued forthwith as per above decrees and sent to the Recovery Officer, Debts Recovery Tribunal - III, Mumbai; (*i) Parties are directed to appear before the Recovery Officer, Debts Recovery Tribunal - III, Mumbai;
(xii) Copies of final order be sent to all concerned free of cost and consigned to records. bts Tribunal- III, Mumbai. (Pronounced in open Court) Dated :1.6thMay 2019 @,