BANK OF INDIA vs M/s. NARAYANASAMY BUILDING CREATORS PRIVATE LIMITED on 5 February 2024

O R D E R

1. The Original Application is filed by the Applicant Bank, under Section 19 (1) of the RDDB & FI Act, 1993,

a. to direct the Defendants jointly and severally to pay the Applicant Bank a sum of Rs.1,14,85,436/- with subsequent interest at the rate of 14% per annum with quarterly rests from the date of application, till its realisation , failing which,

b. to direct the Applicant Bank to bring the mortgaged property mentioned in the schedule of property for sale and the sale proceeds appropriated for recovery of sum of Rs.1,14,85,436/- with subsequent interest at the rate of 14 % per annum with quarterly rests from the date of application, till its realisation along with the Costs of this OA.

BRIEF FACTS:

2. The averments made by the Applicant Bank in the Application are stated as follows: 2.1 The 1st Defendant is carrying on business in building construction and promoter of housing colonies. The 1st Defendant is the Managing Director of the 1st Defendant Company. The 1st

Defendant had applied for a Term Loan of Rs.47,00,000/- from the Applicant Bank. The Applicant Bank had sanctioned loan of Rs.47,00,000/- to the 1st Defendant. The 1st Defendant had availed the loan on 21.11.2009 and had executed the following documents in favor of the Applicant Bank:

a. Demand Promissory Note.

b. A Letter Authorizing the Applicant Bank to make payment on behalf.

c. A Letter with regard to the Promissory note as continuing security.

d. A Term Loan Agreement agreeing to repay the amount in installments.

e. An Agreement of Charge and Hypothecation of Book Debts.

f. Declaration regarding holding of securities.

g. Deed of Hypothecation of Tangible movable property.

2.2 The 1st Defendant had also applied for Cash Credit Limit to the tune of Rs.50,00,000/- from the Applicant Bank and the 1st Defendant had availed the Cash Credit loan facility of Rs.50,00,000/- on 21.11.2009 at Salem and had executed following documents in favor of the Applicant Bank:

a. Demand Promissory Note.

b. A Letter with regard to the Promissory note as continuing security.

c. An Agreement of Charge and Hypothecation of Book Debts for Rs.50,00,000/-

d. Deed of Hypothecation of Tangible movable property.

e. Declaration regarding holding of securities.

The 1st Defendant had also executed various letters agreeing to abide by the terms and conditions of the Applicant Bank. 2.3 The Defendant Nos.2 to 5 stood as Guarantors for the loan granted to the 1st Defendant and had executed a Deed of Guarantee in favor of the Applicant Bank on 27.11.2009. The 5th Defendant had created a mortgage of the Schedule mentioned properties in favor of the Applicant Bank and executed a Registered Simple Mortgage Deed dated 30.11.2009 mortgaging the Schedule mentioned property as security for the due repayment of the loan. 2.4 The 1st Defendant had failed to repay the loan amount despite repeated requests from the Applicant Bank. The Applicant Bank had initiated recovery action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) and issued a demand notice to the 1st Defendant on 18.12.2010. The 1st Defendant had received the notice on 21.12.2010 but had failed to repay the amount. 2.5 According to the Statement of Accounts maintained by the Applicant Bank in the name of the 1st Defendant, the following amounts are due with interest made up to 17.11.2011: a. Term Loan :Rs. 56,17,076.00 b. Cash Credit Facility :Rs. 58,68,360.00

Total ___________________ :Rs.1,14,85,436.00 ___________________ 2.6 The Defendants had failed to repay the amount due. In these circumstances, the Applicant Bank by filing this OA for recovery of the OA amount with interest & Costs from the Defendants and this Honourable Tribunal may be allowed the OA with Costs.

3. The 1st & 2nd Defendants were called absent and set ex-parte on 14.12.2016. The 3rd, 4th & 5th Defendants were called absent and set ex-parte on 11.12.2012, 11.07.2012 and 30.07.2014 respectively.

4. The Applicant Bank, in order to prove its claim, has filed Proof Affidavit executed by one, Sri.P.Anbalagan, who is the Chief Manager of the Applicant Bank and marked the documents as Exts.A-1 to A-47 in support of its claim in OA. A cumulative analysis of both the Proof Affidavit and documents marked by the Applicant Bank would prove the claim of the Applicant Bank in the OA.

5. Therefore, in view of the observations made supra, the OA stands allowed and the Applicant Bank is entitled to recover,

a. from the Defendants personally, jointly and severally a sum of Rs.1,14,85,436/- with subsequent interest at the rate of 14% per annum with monthly rests from the date of Application, till the date of realisation , failing which,

b. the Applicant Bank is directed to bring the mortgaged property mentioned in the schedule of property for sale and the sale proceeds appropriated for recovery of sum of Rs.1,14,85,436/- with subsequent interest at the rate of 14% per annum with monthly rests from the date of Application, till the date of realisation with the Costs of the OA.

6. In the result,

a. it is hereby directed the Defendants personally, jointly and severally to pay the Applicant Bank a sum of Rs.1,14,85,436/- with subsequent interest at the rate of 14% per annum with monthly rests from the date of application, till the date of realisation.

b. On failure to pay, the Applicant Bank is hereby directed to sell the mortgaged property mentioned in the schedule of property and the sale proceeds appropriated for recovery of sum of Rs.1,14,85,436/- with subsequent interest at the rate of 14% per annum with monthly rests from the date of application, till the date of realisation with the Costs of this OA.

7. All the pending IAs. if any, stand closed and disposed of by this Tribunal.

8. The Registry is directed to prepare DRC in terms of this Final Order. The Applicant Bank shall file memo of costs within 15 days from the date of this Order.

9. The Registry is directed to communicate the copy of this Order to both parties as provided in Rule 16 of the Debts Recovery Tribunal (Procedure) Rules, 1993 as amended in 2016. Dictated to Steno, directly typed on the Computer corrected and pronounced by me in the open Tribunal, this the 05th day of February,2024.

Sd/-

[M.P.BALASUBRAMANIAN] PRESIDING OFFICER

SCHEDULE OF PROPERTIES

In Coimbatore Registration District, in Vadavalli Sub Registration District, in Coimbatore Taluk, in Nanjundapuram Village, lands in S.F.No.509/1 extending to Ac.2.03 Cents lying within the following boundaries:

South of : Pallavari North of : Lands in S.F.No.509/2 West of : Pallavari East of : Lands in S.F.No.508

Admeasuring an extent of Ac.2.03 of lands. This land has been carved into a layout and converted into house sited and got N.O.C. and approval of The President of Nanjundapuram Village Panchayat under Ref.No.271/2002- 2003, Order No.14/2002-2003, 15/2002-2003 including the customary passage leading to the land.

Sd/- [M.P.BALASUBRAMANIAN] PRESIDING OFFICER

PROOF AFFIDAVIT OF THE APPLICANT BANK

1. Shri.P.Anbalagan, Chief Manager LIST OF DOCUMENTS MARKED BY THE APPLICANT BANK

Sl. No. Date Description of Document Exhibits

21.11.2009 Original Sanction Letter sent by the Applicant Bank to the 1st Defendant A.1

21.11.2009 Original Pro note for Rs.47,00,000/- executed by the 1st Defendant in favor of the Applicant Bank. A.2

21.11.2009 Original Letter of Authorizing executed by the 1st Defendant in favor of the Applicant Bank. A.3

21.11.2009 Original Installment letter executed by the 1st Defendant in favor of the Applicant Bank. A.4

21.11.2009 Original Term Loan agreement between the 1st Defendant and the Applicant Bank. A.5

21.11.2009 Original Deed of Charge & Hypothecation Of Book Debts between the 1st Defendant and the Applicant Bank. A.6

21.11.2009 Original Letter of undertaking executed by the 1st Defendant in favor of the Applicant Bank. A.7

21.11.2009 Original Hypothecation of tangible movable property executed by the 1st Defendant in favor of the Applicant Bank. A.8

21.11.2009 Original Pro note for Rs.50,00,000/-. executed by the 1st Defendant in favor of the Applicant Bank. A.9

21.11.2009 Original Letter of Authorization executed by the 1st Defendant in favor of the Applicant Bank. A.10

21.11.2009 Original Installment letter executed by the 1st Defendant in favor of the Applicant Bank. A.11

21.11.2009 Original Deed Of Charge & Hypothecation Of Book Debts executed by the 1st Defendant in favor of the Applicant Bank. A.12

21.11.2009 Original Deed of Hypothecation Of Tangible Moveable Property executed by the 1st Defendant in favor of the Applicant Bank. A.13

21.11.2009 Original Declaration executed by the 1st Defendant in favor of the Applicant Bank. A.14

21.11.2009 Original Deed of guarantee executed in favor of the Applicant Bank. A.15

30.11.2009 Original Simple mortgage deed executed by the 5th Defendant in favor of the Applicant Bank.

A.16

15.11.2009 Original- Board Resolution. A.17

21.02.1921 Photostat copy of Sale Certificate in favour of Sri. Rangappa Naickan. A.18

18.09.1979 Photostat copy of Written statement in O.S.No.859/1979 on the file of the District Munsif of Coimbatore. A,19

25.07.1979 Photostat copy of Fair Common Order passed in IA.Nos.1072/1979 &

in A.20

O.S.No.859/1979 on the file of the Hon’ble District Munsif of Coimbatore.

06.02.1981 Photostat copy of Decree & Judgement passed in O.S.No.859/1979 on the file of the Hon’ble District Munsif of Coimbatore. A.21

15.03.1980 Photostat copy of Decree and Judgement passed in C.M.A.No.134/1979 on the file of the Hon’ble District Judge of Coimbatore. A.22

20.09.1995 Photostat copy of Registered sale deed in favour of Sri.K.Thangaraj (Doc.No.4003/1995). A.23

09.01.1998 Photostat copy of General Power of Attorney deed in favour of Sri.K.Palanisamy (Doc.No.13/1998). A.24

13.01.1998 Photostat copy of Registered Sale Agreement (Doc.No.64/1998). A.25

03.04.2000 Photostat copy of Registered Sale Agreement Cancellation deed (Doc.No.735/2000). A.26

03.04.2000 Photostat copy of General Power of Attorney Cancellation deed (Doc.No.116/2000). A.27

13.10.2008 Photostat copy of General Power of Attorney deed in favour of M/s.Narayanaswamy Building Creators Pvt Ltd., A.28

19.12.2008 Photostat copy of Patta No.1144 issued by the Head Quarters Deputy Tahsildar, Coimbatore North. A.29

13.03.1995 Photostat copy of Chitta Extract for fasli 1396 issued by the Village Administrative Officer, Nanjundapuram Village. A.30

13.03.1995 Photostat copy of Adangal Extract for fasli 1404 issued by the Village Administrative Officer, Nanjundapuram Village. A.31

Photostat copy of Chitta Extract for fasli 1409 in the name of K.Thangaraj issued by the Village Administrative Officer, Nanjundapuram Village. A.32

26.05.2000 Photostat copy of Proceedings of Regional Deputy Tahsildar of Coimbatore North regarding to patta transfer Orders. A.33

Photostat copy of FMB Sketch and Topo A.34

Sketch.

27.05.2000 Xerox Copy of the Kist Receipt for fasli 1409. A.35

28.03.2003 Xerox Copy of the Resolution passed by Chairman of No.22, Nanjundapuram Village. A.36

28.03.2003 Original Approved Layout Plan. A.37

15.08.1995 Photostat copy of E.C.No.5312/95 from 01.01.1912 to 31.12.1930. A.38

12.08.1995 Photostat copy of E.C.No.5313/95 from 01.01.1931 to 31.12.1945. A.39

09.08.1995 Photostat copy of E.C.No.5294/95 from 01.01.1946 to 31.12.1960. A.40

09.08.1995 Photostat copy of E.C.No.5716/95 from 01.01.1961 to 31.12.1978. A.41

09.08.1995 Photostat copy of E.C.No.5315/95 from 01.01.1979 to 03.08.1995. A.42

07.04.2000 Photostat copy of E.C.No.2022/2000 from 01.01.95 to 31.10.1996. A.43

06.10.2009 Photostat copy of E.C.No.5899/2009 from 01.11.96 to 05.10.2009. A.44

18.12.2010 Xerox Copy of the Demand Notice. A.45

21.12.2010 Xerox Copy of Acknowledgement card. A.46

_________ Statement of Accounts. A.47

Sd/- [M.P.BALASUBRAMANIAN] PRESIDING OFFICER