Bank Of India vs MS Aniruddh Cashew Processing Unit on 12 December 2022

JUDGMENT

(Delivered on 12th December, 2022)

1. The Applicant Bank has filed the present Application for recovery of aggregate sum of Rs.66,72,225/- i.e. Rs.16,60,238/- in respect of Cash Credit account against Hypothecation of Stock and Rs.50,11,987/- Cash Credit account against Pledge of stock together with future interest @14% p.a. at monthly rests from 03.06.2011 till full

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repayment/realization of entire dues from the defendants.

2. Brief facts of the application are as under:

The defendant No.1 is the proprietorship firm of defendant No.2. The applicant Bank contended that that defendant Nos.4 & 5 are the legal heirs of Late Smt. Leena Ramakant Kangutkar (impleaded by Interlocutory Application No.35/2019 dated 09.01.2019 filed by the applicant Bank which was allowed by this Tribunal on 03.08.2022) who is guarantor as well as owner of immovable property mortgaged for repayment of loan facilities advanced to defendant Nos.1 and 2. The applicant Bank further contended that in or about 05.03.2003, the defendant No.1 through its Proprietress defendant No.2 approached the applicant for Term Loan of Rs.1,96,000/- and Cash Credit facility against Hypothecation of Stock for a sum of Rs.7,47,000/- for the purpose of Cashew Processing Unit. Accordingly, the applicant Bank on 06.03.2003 sanctioned the said credit facilities. The applicant Bank further contended that on

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19.02.2008, the Term Loan account of defendant Nos.1 and 2 has been closed after full repayment of the outstanding dues. On 27.03.2003 defendants executed loan transaction and security documents for Cash Credit facility (against hypothecation of stock) for Rs.7,47,000/-, more particularly mentioned in paragraph No.5(vi) of the Original Application. On 22.06.2006 defendant Nos.1 and 2 requested for enhancement of Cash Credit facility against pledge of stock for Rs.4,90,000/- and enhancement of Cash Credit against hypothecation from Rs.7,47,000/- to Rs.10,00,000/-. The defendants executed necessary loan transaction and security documents. On 23.05.2007 the Cash Credit Limit against pledge of stock was enhanced from Rs.4,90,000/- to Rs.30,00,000/- on the request of defendant Nos.1 and 2 and on execution of necessary loan transaction and security documents in favour of the applicant Bank. On 21.08.2008 the Cash Credit Limit against hypothecation of stock was enhanced from Rs.10,00,000/-

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to Rs.42,00,000/-. To secure the repayment, the defendant Nos.1 and 2 submitted original title deeds in respect of property at Gat No.757/2 at Varaveli and S.No.20/15 at Padave and created equitable mortgage in favour of the applicant Bank.

3. The applicant Bank contended that defendant Nos.1 and 2 have executed Acknowledgement of Debts and Securities dated 21.06.2007, 21.08.2008 and 05.01.2010. The applicant Bank further contended that after availing the credit facilities, defendants failed and neglected to regularize the account despite vigorous follow up by the applicant Bank through letters and reminders. Therefore, the applicant Bank issued Notice dated 14.10.2010 under Section 13(2) of SARFAESI Act to defendants. Despite Notice, defendants failed and neglected to repay the loan. On 10.02.2011 the applicant Bank through its Advocate once again issued Notice calling upon defendants to repay the outstanding dues with interest, however, defendants failed and neglected to clear the outstanding dues. Hence, this application is filed.

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4. Defendants failed to appear despite service of summons. Hence, the application proceeded ex-parte against them vide Order dated 05th December, 2018 passed below the application (Exhibit-1).

5. The applicant Bank contended that it had already filed Claim Affidavit of evidence (Exhibit-19) of Mr. Saurav Kumar, Branch Manager and original documents (Exhibit-

18) from Sr.Nos.AW-1 to AW-21 and (Exhibit-20) from Sr.Nos.AW-21 to AW-83 before DRT-III, Mumbai. The applicant Bank has also filed Additional Claim Affidavit (Exhibit-100) of Mr. Rakesh Kumar son of Mr. Phulchand, Branch Manager, which supports the case of the applicant Bank elucidated in the application. The applicant Bank has produced on record, before DRT, Pune further original loan transaction documents (Exhibit-101) from Sr.Nos.AW-1/1 to AW-1/6 which corroborate the case of the applicant Bank.

6. I have heard arguments of the learned Advocate for the applicant Bank.

7. Since the defendants failed to appear and contest the

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application, I find no reason to disbelieve evidence of the applicant Bank. Therefore, the applicant Bank is entitled for reliefs as claimed.

8. The applicant Bank has claimed future interest @14% p.a. with monthly rests for both Cash Credit account against hypothecation of stock and Cash Credit account against pledge of stock. However, considering the facts of the case, I am of the opinion that if future interest is granted @9% p.a., it would be just and reasonable.

9. Hence, I pass the following order:-

ORDER

(A) T. Original Application No.59/2017 is allowed with costs. (B) Defendant Nos.1 to 5 shall jointly or severally pay to the applicant Bank towards Cash Credit account against Hypothecation of Stock, a sum of Rs.16,60,238/- (Rupees Sixteen Lakhs Sixty Thousand Two Hundred and Thirty-Eight only) with future interest @9% p.a. from the date of filing of the Original Application i.e. 03rd June, 2011 till

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full realization of the amount mentioned in this operative order. (C) Defendant Nos.1 to 5 shall jointly or severally pay to the applicant Bank towards Cash Credit account against Pledge of Stock, a sum of Rs.50,11,987/- (Rupees Fifty Lakhs Eleven Thousand Nine Hundred and Eighty-Seven only) with future interest @9% p.a. from the date of filing of the Original Application i.e. 03rd June, 2011 till full realization of the amount mentioned in this operative order. (D) The aforesaid adjudicated amount is secured by the valid and subsisting mortgage of immovable properties i.e.

1. Land and Building admeasuring 2100 Sq. Mtrs. bearing Gat No.757/2 of Village Varaveli, Taluka Guhagar, District Ratnagiri and

2. Land admeasuring 12000 Sq. Mtrs. bearing S.No.20, Hissa No.15 of Village Padve, Taluka Guhagar, District Ratnagiri , more particularly mentioned in Exhibit-K of the

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Original Application. (E) The applicant Bank is entitled to sell the mortgaged properties to recover its dues. (F) Issue Recovery Certificate. (G) The Registrar is directed to send the copy of Judgment and Recovery Certificate to the applicant Bank and defendants.

Place : Pune Date : 12.12.2022 Sd/- (Dilip G Murumkar) Presiding Officer Debts Recovery Tribunal, Pune