THE COSMOS CO OPERATIVE BANK LIMITED vs M/S ATTITUDE PLASTICS PRIVATE LIMITED on 24 July 2025

JUDGMENT

(Delivered on 24th July, 2025)

1. Applicant has filed present application and sought reliefs as under – (A)- The R.C. be modified by deleting 4 mortgaged properties and continuing 4 mortgaged properties and by keeping the charge on the properties as detailed in schedule hereto annexed of def. No.4 may be considered as charged in terms of MOU alongwith costs throughout from Defendant Nos. 1 to 3 be continued jointly and severally for a sum of Rs.77,44,67,971/- as already granted in RC and modified s against Defendant No.4 for a modified sum of Rs.16,22,66,250/- along with interest pendent-e-lit and futures interest @9% p.a. from the date of OA suit along with penal interest @2% from 01.01.2025 thereon as claimed in particulars of claim.

[ANIL]

(B)- The charge may be kept of 4 mortgage and hypothecated properties and the modified securities in terms of MOU as detailed in schedule hereto annexed be decreed in favour of applicant to appropriate the sale proceeds of mortgaged properties, owned by Def. Nos.1 to 4 . Modified certificate be issued with right to appropriate the said properties for the entire modified recovery of claimed amount. (C) – That pending the bearing and final disposal of the application, defendants be restrained by interim injunction from in any manner dealing, disposing of and / or parting with possession of the mortgaged assets and modified MOU securities in terms of arrangement. (D)- It be declared that there is valid charge of applicant on the mortgaged and arrangement offered securities and personal properties of Defendant Nos.1 to 4 and also attach the same and appoint receiver thereof pending the hearing of application. (E) – Defendant Nos.1 to 4 be restrained by interim injunction from in any manner dealing, disposing of and / or parting with possession of the mortgaged and arrangement offered securities and personal properties of the defendant Nos.1 to 4, assets both movable and immovable.

2. Advocate on behalf of respondent No.4 filed reply (Exhibit-8) and resisted the application.

3. Heard all the parties.

[ANIL]

4. The learned Advocate for the applicant bank submitted that original application No.888/2021 has been decided ex-parte on 05.09.2023 and present respondent No.4 has been directed to pay to bank Rs.12 Crore along with future interest @9.00% p.a. from the date of filing of original application i.e. 10.03.2021till full payment/ realization of amount mentioned in the said operative order. However, during pendency of Original Application, Memorandum of Understanding dated 25.01.2022 was executed between the applicant bank and respondent No.4, whereby respondent No.4 admitted the liability of Rs.28.50 Cr. and agreed to pay the same. He further submitted that out of Recovery Certificate of Rs.28.50 Cr., the applicant bank has recovered Rs.12.50 Cr. by measures taken under Securitization Law. Further, he submitted that the Recovery Certificate for Rs.12 Crore has been issued and on that basis Recovery Proceedings is pending before Recovery Officer of DRT, Pune. As per Section 26(2) R/w Section 19(25) of Recovery of Debts and Bankruptcy Act (Hereinafter referred to as ‘RDB Act’), this Court has power to withdraw Recovery Certificate or correct any clerical or arithmetical mistakes therein by sending intimation to Recovery Officer. Further, he submitted that after decision of Original Application No.888/2021, respondent No.4 had issued cheques for Rs.11.75 Cr. Which have been dishonoured and, therefore, criminal action has been taken by the bank. Therefore, he prayed for granting

[ANIL]

reliefs as claimed in the application. For these contentions, he relied on the authority – Dr.Anil Nandkishor Tibrewala and anr. Vs. Jammu and Kashmir Bank Ltd. And Ors. Reported in (2006) 133 COMPCAS645(Bom).

5. The learned Advocate for respondent No.4 submitted that the applicant is not claiming withdrawal or making correction of arithmetical or clerical mistakes in the Recovery Certificate but seeking modification therein, which is not permissible vide Section 26(2) of RDB Act. Therefore, the application is not maintainable. Further, the applicant bank has not made amendment in respect of Memorandum of Understanding executed in the year 2022 between respondent No.4 and the applicant bank in the Original Application when it was pending. Therefore, now after disposal of Original Application, the applicant bank cannot seek any relief in respect of Recovery Certificate as claimed. Therefore, the application may be rejected. For these contentions, he placed reliance on following authorities-

(i) - Union Bank of India Vs. Rajat Infrastructure P. Ltd. (2023) 10 Supreme Court Cases 817.

(ii) - Orissa Administrative Tribunal Bar Association Vs. Union of India and Ors. (2023) 18 Supreme Court Cases, 1.

6. The Learned Advocate for Respondent No.5 submitted that Federal Bank has first charge on the bungalow which is mortgaged

[ANIL]

and the same has been reflected in the Judgment passed in O.A. No.888/2021, therefore, this respondent No.5 bank has preference to recover its dues and take measures in respect of the said bungalow. However, the applicant bank has proceeded in respect of the said property without obtaining NOC of respondent No.5 bank. Therefore, an appropriate order may be passed.

7. Perused the documents produced by both the parties and the authorities cited by them. At the outset, as per Section 26(2) of the RDB Act, this Tribunal has power to withdraw Recovery Certificate or correct arithmetical or clerical mistakes therein. However, the applicant bank is seeking modification in Recovery Certificate issued in respect of order passed in O.A. No.888/2021, therefore, the present application is not maintainable. Further, according to the applicant bank, during pendency of O.A.No.888/2021, Memorandum of Understanding was executed between respondent No.4 and the applicant bank in the year 2022. Therefore, it was possible for the applicant bank to make amendment in the O.A. No.888/2021 and claim amount as per Memorandum of Understanding. However, it failed to do so. Recovery Certificate has been issued on the basis of order passed in O.A. No.888/2021 mentioning the amounts to be recovered from the respondents. If changes/modifications are required to be made in the Recovery Certificate, the order passed below Original

[ANIL]

Application has to be modified, which is not permissible in law. Therefore, reliefs sought by the applicant bank in this application could not be granted. Therefore, application is liable for dismissal. Hence, I pass following order:-

ORDER

(A) Miscellaneous Application No. 35/2025 is dismissed.

(B) Interim Application, if any pending shall stand disposed of.

Miscellaneous Application is disposed of.

Place: Pune Date: 24.07.2025

Sd/- (Dilip G. Murumkar) Presiding Officer, Debts Recovery Tribunal, Pune.