STATE BANK OF INDIA vs M/S. JSD METAL INDUSTRIES LLP on 19 June 2019

1. M/s. JSD Metal

i) Plot No. 102, She ustl Estate, :Palghar Village Acchad, And also at

ii) Flat No. 5, 4T,Sltivsadan, Nagar, (East), B, Trishul CHSL, Schoof Chakal MIDC, Caves Roa{i, Andheri (East),

2. Mr. Rajesh Purushottam Sharma, Flat No. 5,1't Floor, Plot No. 4Z Shivsadan, Shri. Rajasthan CHSL, J B Nagar, Andheri- Kurla Road, Andheri (East), Mumbai - 400 059 Presented on : 26/07 /201,6 Registered on : 24/02/2018 Transferred on : 19/04/20L8 Decided on:L9/06/2019 Duration : 25 (D)/03(MY01 (Y) Applicant Defendant No. 1 IN THE DEBTS RECOVERY TRIBUNAL - III AT MUMBAI DATED THIS lgthDAY OF IUNE 2019 PRESENT : SHRI. T S ASOKRAI PRESIDING OFFICER T O A No.516 of 20L8 ) ) M ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) . Defendant No. 2 )

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2. Mr. Yogesh Chandra Kaushik, ' Flat No. 5,11B, Trishul CHSL, Opp. Canossa School, Chakal MIDC, Mahakali Caves Road, Andheri (East), Mumbai - 400 059 Order TOA 5 l6 of 201 8 (Ex-parte)(Final) .. Defendant No. 3 of the the ) ) ) ) ) Present: Shri. Sachin A Koli, Advocate, Counsel for Applicant Bank Defendants remained ex-parte This Original Application (OA) is filed by Applicant Recovery of Debts Due to Banks and Financial Institutions Act, 1 (since changed to "Recovery of Debts and Bankru Act, 1993 Defendants for the recovery of a sum Ninety Three lacs Eighty Four thousand to Rs. 93,84,241/90 (Rupees Forty One and paise Ninety only) in respect of the various in the OA alongwith cost charges, pendente lite futlre this OA till its realisation. the date of filing of Parties : Applicant is a Bank Defendant No. 1. B Act and lender of credit facilities to Defendant No. , is a Limited Liability Partnership Firm registered under Limited Liability Partrership Act, 2008 ("Defendant No.

1. t No. 2 and 3 as the Partners, who also provided their ) as additional security for the credit facilities. Factual matrix :

1. (a) As per OA, on the application of Defendant No. 2 and 3 as partners of Defendant No. 1 Firm, Applicant provided credit facility in the form of Demand Cash Credit Limit of Rs. 20,00,000/ - ("CCL") and Medium Term Loan of Rs. 50,00,000/- ("MTL") (collectively called "Credit Facilities") to Defendant No. L Firm based on the documentation and security creation by Defendant No.

,} J Order TOA 5 I 6 of 2018 (Ex-pafie)(Fina1) 2 and 3 who executed all documents and created all securities for and on behalf of and in the name of Defendant No. 1 Firm as its Partners. Additional security to the Credit Facilities in the form of joint and several personal guarantee was also provided by Defendant No. 2 and 3.

(b) As per the OA, the Defendant No. 1 Firm committed breaches of the terms and conditions on the basis of which the Credit Facilities were sanctioned and also failed and neglected to clear the outstanding dues in Facilities and regularise the accounts. Applicant by through its Advocate, called upon all the Defendants to outstanding amount of the Credit Facilities. Since the to form of - (i) permanent injunction t No. 2 arrrd 3 in the against dealing with f creating third party interest in ble property being Flat as detailed in Para 6(d) being Floor, Tower No. 1, Oberoi Splender-Grand, Jogeshwari V Road, Andheri (East), Mumbai; and (ii) permanent No. 3 against dealing with / creating third his immoveable property being Flat as detailed in Para 6 No. 8-1L, First Floor, Trishul CHS Ltd., Mahakali (East), Mumbai.

2. (") itseU of the OA being within limitation and falling jurisdiction as per RDDB Act, ordered issue of Summons to (b) on of the OA to this Tribunal, Summons were sent to the Defendants through Registered Post with Acknowledgement Due. Postal covers sent to Defendant No. 1 and 3 got served and Acknowledgement Due Cards received back. However, Postal cover sent to Defendant No. 2 returned undelivered with postal endorsement "Unclaimed". Applicant filed Service Affidavit. As per Regulation 19 of The Regulations of Practice 2010 (framed pursuant to power the Credit issued repay the same, OA has been filed. (") h the OA, Applicant also sought relief t t

Order TOA 516 of 2018 (Ex-partexFinal) conferred under sub-Section(1) of Section 22 of RDDB Act), service is deemed to have been completed on Defendant No. 2.

(c) As Defendants did not appear either in person or through advocate and did not file Written Statements, the Defendants were set ex-parte on1,4/11'/2018 by an Order of the Tribunal. Proceedines :

3. As directed by the Tribunal, Applicant filed, Deshpande, Manager (Stressed Assets), Claim Affidavit Documents as Annexures (which have been taken on record and marked as "Exhibits") and also filed Statiffirent of Account together with the Certificate issued Technology Act, 2000 and Certificates under Bankers (which are marked as Exhibit " !891-, as Arurexures Exhibits and gone through by are found relevant for the Tribunal to consider ose on merit. Observation on Evidences provided& Claim made: The Statement of Account filed by the Applicanf certified as per Bankers Books of Evidence Act, 1891., 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 the Documents filed as

Exhibit S. No. Facility g . Document ,r10r, Letter of Arrangement (Office Copy) ,r11r, Agreement of Loan Hypothecation (Original) cum- ,r12r, Personal Guarantee of. Def 2 & 3 (Original) ri&\ i ru}:L 4 -S9 -q,t k"q$tu |; w^ ''' .. 1

2. ,r73r, Revival I;etter by Def 1 (Original) "L4" Cash (Rr. -) Recall Notice (Office Copy)

Order TOA 516 of 2018 (Ex-pafiexFinal) has gone unchallenged as the 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 15.30% p.a. rests in respect of CCL and at the rate of 1,6.50% p.a. with mon of MTL, both from the date of filing of the OA till their realisa to Sec. 19(20) of the RDDB Act (which is to Sec. 34 of Code, 1908) the contract between the A and Defehdants comes to an end on the filing of the OA. Thus the discretion in awarding pendente lite and future interest. interest charged by banks for similar facilities, I of justice will be served if the rate interest is 12.00% p.a. on simple interest basis for both the facilities.

6. Lr the light of a Application is being allowed and Order passed on

ORDER

is allowed with costs and decree to be issued on the

(ii) There shall be a Decree in favour of the Applicant as under - (u) For Rs. 28,53,018/72 (Rupees Twenty Eight lacs Fifty Three thousand and Eighteen and paise Seventy Two 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 Limit ("Decreed Amount for CCL"); at

Order TOA 5 l6 of 2018 (Ex-parte)(Final)

(b) For Rs. 65,31,223/18 (Rupees Sixty Five lacs Thirty One thousand Two hundred and Twenty Three and paise Eighteen only) alongwith future interest at the rate o{ 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 Medium Term Loan ("Decreed Amount for MTL");

(iii) Defendant No. 1 Firm, the Borrower, and Defendant No. and 3, the Guarantors, are ordered to pay,joirtly and severally, to within a period of 30 days, the Decreed Amount for CCL and, in the Defendants failing to pay and discharge the dues as directed or of shortfall, the assets forming security for the ..;!, Litffi (covered by Exh Credit "11" being the moveable assets charged) taken possession of and be sold to the extent of realising the d case may be, and in the event of further shortfall, be proceeded against assets / other assets of personally by way of personal Defendant No. 1 Firm and of Defendant No. 2 and 3 be attached and sold for d shortfall, as the case may be; (i") Defendant No. 7 ', and Defendant No. 2 and 3, the Guarantors, , jointly and severally, to the Applicant, within a period of d Amount for MTL and, in the event of the said pay and discharge the dues as directed or in the event of forming security for the Medium Term Loan (covered by the moveable assets charged) be attached / taken possession of and to the extent of realising the dues / shortfall, as the case may be, and in the event of further shortfall, the said Defendants be proceeded against personally by way of personal decree and business assets / other assets of Defendant No. 1 Firm and personal assets / estates of Defendant No. 2 and 3 be attached and sold for realising the dues f shortfall, as the case may be; said

Order TOA 516 of 2018 (Ex-parte)(Final) (") Based on the Original Documents placed before this Tribunal, supported by the pleadings, it is Declared that there is a valid, subsisting and enforceable hypothecanon / charge on the moveable assets of the Defendant No. 1 Firm, the Borrower, as per Exh "17" Lt'r favour of the Applicant validly securing the Cash Credit Limit and Medium Term Loan; ("i) Defendant No. 2 and 3 are directed to declare, on oath, to the Officer, Debts Recovery Tribunal - III, Mumbai, both moveable assets

(vii) Defendant No. 1 to 3 are Ex]":. "11" and also assets manner whatsoever till Clause (ii) above; of theirs as also Defendant No. 2 and3, as partrers of the are directed to declare, on oath, both moveable and Defendant No. L Firm for the purpose of Clause (iii) and / or Clause (iv) above; of t and sale as directed under the assets described in Clause (vi) above in any of Decreed Amounts under .'g|. thfl p

(viii) In addition to the under Clause (vii) above, Defendant No. 2 is injuncted 1, Oberoi asset being Flat No. 1002, 10th Floor, Tower No. Jogeshwari - Vikhroli Link Road, Andheri (East), whatsoever till the complete recovery of Decreed

(ii) above;

(ir) In to the Injunction Order under Clause (vii) above, Defendant No. 3 isinjuncted from dealing with his asset being Flat No. B-11, First Floor, Trishul CHS Ltd., Mahakali Caves Road, Andheri (East), Mumbai in any manner whatsoever fiIl the complete recovery of Decreed Amounts under Clause (ii) above; on

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Order TOA 516 of 2018 (Ex-parte)(Final) (*) Recovery Certificates be issued forthwith as per above decrees and sent to the Recovery Officer, Debts Recovery Tribunal - III, Mumbai;

(xi) 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 . 19tn Jqne 2019