CORPORATION BANK vs SUNIL H.BOBADE & ORS (UDUPI) on 31 July 2025

::FINAL ORDER::

1. The Application is filed Under Section 19 (1) of the Recovery of Debt And Bankruptcy Act, 1993 seeking for issuance of a Recovery Certificate for Rs. 1,82,47,300/-(Rupees One Crore eighty two lakhs forty seven thousand three hundred only) due in the credit facility of Demand loan of Rs 20,00,000/- availed by the 1st defendant from the Manipal branch of erstwhile Corporation Bank, which got amalgamated with the Applicant.

2. The Applicant contends that a credit facility of Rs.200,00,0000/- was availed by 1st defendant. It is also stated that the facility is secured by mortgage of schedule properties out of which A schedule property 3 TA/1667/2017

belonged to the 1st Defendant and B schedule belonged to Defendants 1 and 2. The Defendants 4 to 6 had also mortgaged Schedule C property in lieu of security for the Facility.

3. The Applicant further contents that despite availing the credit facility by obliging to pay back the amount, the defendant failed in compliance of the same and all the efforts of the Applicant, including issuance of a Demand Notice under Section 13(2) of the SARFAESI Act, to make the defendants pay back the amount failed forcing the Applicant to file this Application.

4. Summons was taken out and as the defendants 1 to 5 failed to appear they were set exparte.

5. Defendant no 6 filed their written statement contending that, they along with defendants 4 to 6 are only original owners of immovable property and had executed mortgage in respect of 82% share of constructed portion of the building allotted to the share of the 1st defendant, who is the Developer. It is also stated that 18% share of the property was not mortgaged in security for the loan and cannot be proceeded against without compliance of the terms of Joint Compromise agreement. Hence according to the 6th defendant, the claim of the Applicant Bank against the entire C schedule id un sustainable. It is also contended the claim as made in the OA is exorbitant. The 6th defendant 4 TA/1667/2017

is also claiming that the Application with out production of document identifying 82% is not maintainable.

6. The Applicant let in evidence through AW1, filed proof affidavit in conforming with pleading and got marked the following documents Exhibits A3 to A25. Ext A3- Application dated 03.01.2012 Ext A4-Credit sanction intimation. Ext A5- Letter of proprietorship date 16.08.2012 Ext A6-Demand Promissory Note dated 16.08.2012. Ext A7- Take delivery letter of DPN Ext A8-Guarentee agreement dated 16.08.2012 Ext A9-Memorandum of Deposit of Title Deeds dated 16.08.2012 Ext A10- Agreement dated 28-02-1990. Ext A 11- Deed of Declaration and registration receipt dated 14.12-2011 Ext A12- Memorandum of Deposit of Title Deeds dated 16.08.2012 Ext A13-Agreement dated 23.07.2008 Ext A14-Registeration receipt dated 23.07.2008 Ext A15- Memorandum of Deposit of Title Deeds dated 16.08.2012 Ext A16-Release deed dated14.03.2011. Ext A17-Devoloupment agreement dated 20.04.2011. Ext A18-Demand Promissory Note dated 13.05.2015 Ext A19-Take Delivery Letter as to DPN Ext A 20-Notice dated 06.08.2015

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Ext A21-Possession Notice dated 11.12.2015 Ext A22-Possession Notice dated 11.12.2015 Ext A23-Possession Notice dated 11.12.2015 Ext A24-Legal Notice dated 28.01.2016. Ext A25- Account Extract.

7. The 6th defendant had filed evidence affidavit reiterating the contentions as taken in their written statement and produced the following documents:

1. Copy of the sale notice by corporation Bank.

2. Copy of notice by 6th Defendant to Corporation Bank with acknowledgments

3. Copy of the Development Agreement 4 ,. Copy of the broacher of Mahalakhshmi Residency 5 True copy of the work plan with identification of owner’s share. Even though these documents were not marked in evidence, they were referred to in the Defense evidence Affidavit.

8. Heard, the following issues arise for consideration. I. Whether the Applicant had proved the OA claim as against all the defendants and all the schedule properties.

II. What orders are to be passed. Both these issues are decided together.

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9. The Applicant evidence remain un-rebutted and hence proved. The documents produced by the Applicant are found to be admissible and are sufficient to produce OA claim.

10. Even though the 6th Defendant contested the matter, the crux of his defense was that the entire C schedule is not given in as security and security interest exists only to the extent of 82% of the same. It is to be note that the Applicant is claiming only 82% of interest over the 35 cents of land constitutes C schedule. Hence there is no force in the contention of the 6th Defendant that the Applicant’s claim as to the mortgage right over entire property cannot be enforced. The next contention as to the want of identification of property is also to be rejected as the question as to the identification arises at the time of enforcement of Security and not at the time when question as to the existence of Mortgage and right to proceed against the same is decided.

11. The other contentions as to the rate of interest and acceptability of the statement of accounts are liable to be rejected as the Applicant had succeeded in proving their right to seek recovery of the OA claim with interest by production of loan documents; execution of which are not in dispute.

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12. Considering the evidence produced by the Applicant; mainly the documentary evidence this Tribunal is satisfied that the OA claim is made within limitation and there is no capitalization of penal interest.

13. Hence the Applicant is to be found entitled for the OA claim However taking note of the fact that the rate of interest agreed and applied are on the higher side and taking note of the fact that OA claim is arrived at by calculating interest at agreed rate, that too with penal interest pendente lite and future interest is awarded at simple rate that too at a reduced rate of 12% per annum.

14. In view of the above i. TA 1667 of 2017 stands allowed ii. Applicant is permitted to recover an amount of for Rs. 1,82,47,300/-(Rupees One Crore eighty two lakhs forty seven thousand three hundred only) with future and pendente lite interest @ 12% (Simple) from the date of filing of the TA till realization from the defendants after giving credit to all the amount recovered and received during the pendency of the TA. The property schedule to the TA be the schedule to the Recovery Certificate. iii. The schedule properties to be proceeded against and sold and if the sale proceeds are not sufficient the defendants and other their assets are liable to be proceeded against.

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iv. A Recovery Certificate is to be drawn and issued to the recovery Officer to enable recovery of the as per the above terms. v. Applicant is allowed to realize cost of the proceeding for which cost memo is to be filed in 7 days’ time from the date of receipt of the copy of the order. [Dictated to the Stenographer (PR), transcribed by her, corrected and signed and pronounced by me in the Open Court, this the 31st Day of July 2025].

Sd/- (T. RAJESH) PRESIDING OFFICER