Bank of Baroda vs M/s.Allwyn Builders on 29 December 2023

ORDER

1. The above Transfer Application is filed under section 19 of the Recovery of Debt and Bankruptcy Act seeking recovery of Rs.2,64,72,657/- with further interest from the date of filing of the TA and by allowing the same to be recovered from the defendants jointly and severally and also by sale of schedule mentioned properties.

2. The above original application is filed before the DRT-I and stood transferred to this Tribunal and renumbered as above.

3. The case of the applicant can be encapsulated as follows: The 1st defendant a property concern with 2nd defendant as proprietor had applied for and availed the following facilities totaling Rs. 3,44,70,000/- from the applicants. SL. No. Credit Facility Amount

1.

2.

3.

4.

5. Cash Credit Term Loan I Term Loan II Inland/Foreign letter of credit Forward contact Rs. 1,00,00,000/- Rs. 9,70,000/- Rs. 10,00,000/- Rs. 1,50,00,000/- Rs. 75,00,000/-

4. It is also stated that the above facilities were availed after execution of necessary loan documents by defendants obliging themselves to repay the amount promptly and regularly, without fail (with interest +2% over MCLR+SP).

5. Apart from execution of the necessary loan documents, the 2nd defendant had created security by way of equitable mortgage over the ‘B’ schedule properties. Over and above the said execution of the necessary loan documents, hypothecation over the stocks and Book debts (schedule ‘A’) were marked as being the security for repayment of the loan. The facility was later modified to a line of credit of Rs.2,50,00,000/- and sub-limit of Rs.1,50,00,000/-. For the revised facilities also, the defendants had executed necessary documents and extended the mortgage.

6. Even though the defendants had obliged themselves to repay the amount promptly and regularly, they failed to do so resulting defaults in the account and the same being declared as NPA as on 31.03.2018.

7. The applicant’s officials had on many occasions approached the defendants requesting them to regularize the account and despite the same, no effort was made by the defendants to get the account regularized over to pay back the amount. Even as no repayment was made despite repeated requests, the applicant had on 29.05.2018 caused to issue a demand notice u/s.13(2) of SARFASI Act requiring repayment of the amount due in the account.

8. It is also the case of the applicant that despite repeated reminders and requests, the defendants had failed to make the repayment forcing the applicant to file this TA seeking recovery of the amount due in the account with further interest and cost.

9. The defendants filed their reply statement contending that the claim of the Applicant is barred by limitation. It is also contended that the document are not stamped and hence cannot be accepted in evidence.

10. The applicant had let in evidence through AW1 who had sworn to a Proof Affidavit in terms of the pleadings in the TA and also produced Exhibits A1 to A38 and got the same marked as evidence. The defendants had filed a counter proof affidavit in terms of the reply statement.

11. Heard the counsel for the applicant and considered the contentions as taken in the TA in the light of documentary evidence and proof affidavit. The following issues arise for consideration in this matter. i) Whether the applicant had succeeded in proving the TA claim? ii) What orders are to be passed? Both these issues are gone into and decided together.

12. The case put forth by the applicant in the Application remains unrebutted. The contentions of the defendants as to limitation and acceptance of documentation is without any basis. The evidence tendered by the applicant remains uncontroverted and undisputed. The evidences put forth by the applicant were found admissible. From the statement of accounts as produced by the applicant, it is evident that the amount as claimed in the TA is outstanding in the account, which the applicant is entitled to get recovered from the defendants and their assets (including the schedule mentioned property). The claim of the applicant is well within the period of limitation as for realisation of amount secured by mortgage, the limitation is 12 years.

13. In view of the finding as entered above i) TA No.809/2023 stands allowed. ii) Applicant is permitted to recover an amount of Rs.2,64,72,657/- (Rupees Two Crores Sixty Four Lakhs Seventy Two Thousands Six Hundred and Fifty Seven only) with future and pendentelite interest @12.80% p.a. with monthly rests from the date of filing of the TA till realization from the defendants also by selling ‘A’ & ‘B’ schedule properties after giving credit to all the amount recovered and received during the pendency of the TA. iii) The schedule ‘B’ properties to be proceeded against and sold and if the sale proceeds are not sufficient the defendants and their other assets are liable to be proceeded against.

iv) A Recovery Certificate is to be drawn and issued to the recovery officer to enable recovery of the amount as per the above terms. v) Applicant is allowed to realize cost of the proceedings for which cost memo is to be filed in 7 days’ time from the date of receipt of the copy of the order.

14. Communicate a copy of the order to the parties concerned in terms of Section 19(21)(i) of the RDB Act, read with Rule 16 of DRT (Procedure) Rules, 1993. (Dictated to PA, transcribed by him, corrected, signed and pronounced by me in the Open Court, this 29th day of December, 2023)

Sd./- (T. RAJESH) PRESIDING OFFICER DRT-II, CHENNAI