AXIS BANK vs N.Thirusenthil on 18 September 2023

**ORDER**

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

a. to direct the Defendants personally, jointly and severally to pay to the Applicant Bank Rs.1,44,74,662.02 together with interest on Rs.1,44,68,356.02 (which is the amount exclusive of penal interest) at the rate of 16% per annum, from the date of Application, till the date of its realization, failing which;

b. to bring the hypothecated assets, which are more fully described in Schedule "A" and mortgaged properties which are more fully described in Schedule "B" properties and the Sale Proceeds appropriated for recovery of Rs.1,44,74,662.02 together with interest on Rs.1,44,68,356.02 (which is the amount exclusive of penal interest) at the rate of 16% per annum, from the date of Application, till the date of its realization, and

c. to issue Recovery Certificate with Costs of this TA.

**BRIEF FACTS**

2. The Averments made by the Applicant Bank in the Application are stated as follows :

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2.1. The 1^st Defendant is the Proprietor of the Firm M/s. Dharani Offset Printers. The 1^st Defendant approached the Applicant Bank for meeting the working capital requirements of his Proprietary Business for a Cash Credit Facility of Rs.1,35,00,000/- with the security of 2^nd & 3^rd Defendants personal guarantee and mortgaged of the Properties belonging to the Defendants.

2.2. The Applicant Bank sanctioned the loan a sum of Rs.1,35,00,000/- on 07.03.2013. As per the terms of the loan sanction, the 1^st Defendant shall hypothecate with the Applicant Bank, the entire current assets of the firm and also create a charge on 4 items of properties belonging to the Defendants.

2.3. For the Sanction of Cash Credit Facility of Rs.1,35,00,000/- on 07.03.2013, the Defendants executed the required documents in favour of Applicant Bank mentioned hereunder :

<thead> <tr> <th><b>Date</b></th> <th><b>Description of Document</b></th> <th><b>Amount</b></th> </tr> </thead> <tbody> <tr> <td>07.03.2013</td> <td>Sanction Letter for CC Limit</td> <td>Rs.1,35,00,000/-</td> </tr> <tr> <td>13.03.2013</td> <td>Demand Promissory Note</td> <td>Rs.1,35,00,000/-</td> </tr> <tr> <td>13.03.2013</td> <td>D.P. Note Delivery cum Waiver Letter</td> <td>Rs.1,35,00,000/-</td> </tr> <tr> <td>13.03.2013</td> <td>Deed of Hypothecation of Current Assets (Stock &amp; Book Debts)</td> <td>Rs.1,35,00,000/-</td> </tr> <tr> <td>13.03.2013</td> <td>Letter of Arrangement : Cash Credit Advances.</td> <td>Rs.1,35,00,000/-</td> </tr> <tr> <td>13.03.2013</td> <td>Letter of undertaking from D-1</td> <td>Rs.1,35,00,000/-</td> </tr> <tr> <td>13.03.2013</td> <td>Declaration executed by D-1</td> <td>Rs.1,35,00,000/-</td> </tr> </tbody> </table>

2.4. The 2^nd & 3^rd Defendants stood guarantee for the CC Limit availed by the 1^st Defendant for a sum of Rs.1,35,00,000/- and executed Guarantee Deeds in favour of the Applicant Bank on 13.03.2013.

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2.5. On 13.03.2013, the 1^st Defendant deposited the Title Deeds of his properties, which were mentioned in Item No.1 & Item No.3 of the "B" Schedule properties. On the same day, the 2^nd Defendant deposited the Title Deeds his property, which is mentioned in Item No.4 of the "B" Schedule Property and 3^rd Defendant deposited the Title Deeds of her property, mentioned in Item 2 of the "B" Schedule Properties with an intention to create an Equitable Mortgage in favour of the Applicant Bank. Thereafter, the Defendants jointly registered the Memorandum of Deposit of Title Deeds on 14.03.2013.

2.6. The request of the Defendants, the facilities were renewed at the existing levels on 24.12.2014, 27.03.2015 and 25.09.2015, wherein the validity of the sanction was extended for further period and the Sanction Letters dated 24.12.2014 & 27.03.015 were duly acknowledged and the terms of the said sanction stipulated in the said letter, accepted by the 1^st Defendant.

2.7. The payments made by the Defendants were duly credited to the Account of the 1^st Defendant. The operation and conduct of the Defendants in relation to the Account became irregular and unsatisfactory in due course. The Defendants failed to adhere to the terms and conditions applicable to the advances. Inspite of repeated demands made by the Applicant Bank, the Defendants failed to regularize the loan account. Therefore, the Applicant Bank issued a Legal Notice to the Defendants on 27.02.2016. After receiving the Legal Notice, the Defendants did not deposit any amount for the loan dues. Therefore, the Applicant Bank filed this OA against the Defendants for recovery of the loan dues, and this Hon'ble Tribunal may be allowed the OA with Costs.

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3. The Defendants were called absent and set ex-parte on 20.02.2018.

4. The Applicant Bank, in order to prove its claim, has filed Proof Affidavit executed by Sri.S.Ponsurendiran, Deputy Manager, of the Applicant Bank dated 08.10.2018 and Exs.A-1 to A-30 marked. A cumulative analysis of the Proof Affidavit and documents marked by the Applicant Bank would prove the claim of the Applicant Bank in the TA and the Ld. Counsel for the Applicant Bank submitted in his argument that the Order may passed in terms of the Proof Affidavit filed by the Applicant Bank.

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

a. from the Defendants personally, jointly & severally, a sum of Rs.1,44,74,662.02 together with interest on Rs.1,44,68,356.02 (which is the amount exclusive of penal interest) at the rate of 16% per annum, from the date of Application, till the date of its realization, failing which;

b. the Applicant Bank is directed to bring the Schedule "A" hypothecated properties & Schedule "B" mortgaged properties for sale, and the sale proceeds appropriated to the loan accounts for recovery of Rs.1,44,74,662.02 together with interest on Rs.1,44,68,356.02 (which is the amount exclusive of penal interest) at the rate of 16% per annum, from the date of Application, till the date of its realization.

6. In the result,

a. it is hereby directed the Defendants personally, jointly & severally to pay to the Applicant Bank for a sum of Rs.1,44,74,662.02 together with interest on Rs.1,44,68,356.02

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(which is the amount exclusive of penal interest) at the rate of 16% per annum, from the date of Application, till the date of its realization, failing which;

b. it is hereby directed the Applicant Bank to bring the mortgaged properties, which is described in the Schedule "A" hypothecated properties & Schedule "B" mortgaged properties for sale, and the sale proceeds appropriated to the loan accounts for recovery of Rs.1,44,74,662.02 together with interest on Rs.1,44,68,356.02 (which is the amount exclusive of penal interest) at the rate of 16% per annum, from the date of Application, till the date of its realization, with costs.

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 18^th day of September, 2023.*

**[M.P. BALASUBRAMANIAN]**

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**SCHEDULE OF PROPERTIES**

**SCHEDULE - "A" - Current Assets**

Hypothecation of entire current assets including all the stock-in-trade, both present and future, including raw material, stock-in-process, finished goods, cash and other current assets, whatsoever, being movable properties, now or at anytime hereafter belonging to M/s. Dharani Offset Printers.

**SCHEDULE - "B" - Immovable Assets**

**ITEM No.1 - PROPERTY STANDING IN THE NAME OF SRI. N. THIRUSENTHIL (D1)**

In Erode District, Gobi Registration District, Sathy Sub Registration District, Sathy Taluk, Ariyappampalayam Village, in Old SF No.61, New SF No.19/1A, P. Hec.4.37, Nehru Nagar West Street, 6098.4 sq.ft. of land, bounded on the :

North by Gnanaguru, Thaveethu and Joseph S.R. Sarkuan land; West by Duraisamy land; East by North South Ariyappampalayam Town Panchayat Road; South by Arthanari Mudhaliar & Palaniappan land.

Admeasuring 14 cents of vacant land with mamool way.

**ITEM No.2 - PROPERTIES STANDING IN THE NAME OF SMT. R. NALINI (D3)**

In Erode District, Gobi Registration District, Sathy Sub Registration District, Sathy Taluk, Varadhampalayam Village, in Old SF No.23, 24, New SF No.315/1, P.Hec.2.19.5,

1. SITE No.2 extending to 2107 sq ft of land, bounded on the :

South by Site No.3 ;

East by 25 ft N-S Road ;


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With the following measurements :

E-W on the North 70 ft;

E-W on the South 70 $\frac{1}{2}$ ft;

N-S on both sides 30 ft;

Admeasuring 2107 sq ft of vacant land with mamool way.

2. SITE No.1 extending to 2380 sq ft of land, bounded on the South by Site No.2;

North by Municipal E-W Road leading to Savakuttai; East by 25 ft N-S Road; With the following measurements :

E-W on both sides 70 ft;

N-S on the West 39 ft;

N-S on the East 29 ft;

Admeasuring 2390 sq ft of vacant land with mamool way.

3. SITE No.3 extending to 2123 sq ft of land, bounded on the :

South by Site No.4;

East by 25 ft N-S Road;

With the following measurements :

E-W on the North 70 $\frac{1}{2}$ ft;

E-W on the South 71 ft;

N-S on both sides 30 ft.

Admeasuring 2123 sq ft of vacant land with mamool way.

A faint, horizontal rectangular stamp or mark is located at the bottom of the page. It appears to be a watermark or a stamp from an official document, possibly a surveyor's seal or a government stamp. The text within the stamp is not clearly legible due to its faintness.

9TA 1216/2019**ITEM No. 3 - PROPERTY STANDING IN THE NAME OF SRI N. THIRUSENTHI (D1)**

In Erode District, Gobi Registration District, Sathyamangalam Sub Registration District, Sathyamangalam Town, Sathyamangalam Village, in Ward-D, Block No.7, T.S.No.17/1 (New SF No.322/1) P. Hec.4.2499.00, in this, in the layout approved by D.T.C.P. vide No.20/2003 and identified as Site No.25, bounded on the

South by E-W Road; East by Site No.26; West by Site No.24;

Admeasuring 1938 sq ft or 4 cents and 196 sq ft of vacant land with mamool right of way.

**ITEM No. 4 - PROPERTY STANDING IN THE NAME OF SRI T.S. NACHIMUTHU (D2)**

In Erode District, Gobi Registration District, Sathyamangalam Sub Registration District, Sathyamangalam Town, Rangasamudram Village, in Ward-E, Block No.15, T.S.No.68 (New SF No.67/1 part), land lying within the following boundaries :

North of E-W Road; West of House property belonging to Abdul Salamath; East of House property belonging to Rajagopal; South of E-W Road; Admeasuring P.Hec.0.0113.00 (113 sq mts) or 1241 sq ft or 2 cents and 370 sq ft land, and buildings therein with all fixture, fittings, amenities and mamool right of way, etc.

[M.P. BALASUBRAMANIAN]

10TA 1216/2019**PROOF AFFIDAVIT OF THE APPLICANT BANK**

1. 1. Sri. S. Ponsurendiran, Deputy Manager.

**LIST OF DOCUMENTS MARKED BY THE APPLICANT BANK**

<table border="1"> <thead> <tr> <th>Sl. No.</th> <th>Date</th> <th>Description of Document</th> <th>Exhibits</th> </tr> </thead> <tbody> <tr> <td>1</td> <td>07.03.2013</td> <td>Original – Sanction Letter of Applicant Bank for CC Limit of Rs.1,35,00,000/- signed by Defendants.</td> <td>A.1</td> </tr> <tr> <td>2</td> <td>13.03.2013</td> <td>Original – Demand Promissory Note executed by the Defendants in favour of Applicant Bank.</td> <td>A.2</td> </tr> <tr> <td>3</td> <td>13.03.2013</td> <td>Original – D.P. Note Delivery cum Waiver Letter executed by the Defendants in favour of Applicant Bank.</td> <td>A.3</td> </tr> <tr> <td>4</td> <td>13.03.2013</td> <td>Original – Deed of Hypothecation of Current Assets (Stock and Book Debts) executed by the 1^st Defendant in favour of the Applicant Bank.</td> <td>A.4</td> </tr> <tr> <td>5</td> <td>13.03.2013</td> <td>Original – Letter of Arrangement : Cash Credit Advances executed by the 1^st Defendant in favour of the Applicant Bank.</td> <td>A.5</td> </tr> <tr> <td>6</td> <td>13.03.2013</td> <td>Original – Letter of Undertaking executed by the 1^st Defendant in favour of the Applicant Bank.</td> <td>A.6</td> </tr> <tr> <td>7</td> <td>13.03.2013</td> <td>Original – Declaration executed by the 1^st Defendant in favour of the Applicant Bank.</td> <td>A.7</td> </tr> <tr> <td>8</td> <td>13.03.2013</td> <td>Original – Deed of Guarantee executed by the 2^nd Defendant in favour of the Applicant Bank.</td> <td>A.8</td> </tr> <tr> <td>9</td> <td>13.03.2013</td> <td>Original – Deed of Guarantee executed by the 3^rd Defendant in favour of the Applicant Bank.</td> <td>A.9</td> </tr> <tr> <td>10</td> <td>24.12.2014</td> <td>Original – Sanction of Validity for a further period up to 23.02.2015 executed by the 1^st Defendant in favour of the Applicant Bank.</td> <td>A.10</td> </tr> <tr> <td>11</td> <td>27.03.2015</td> <td>Original – Sanction of Validity for a further period up to 23.04.2015 executed by the 1^st Defendant in favour of the Applicant Bank.</td> <td>A.11</td> </tr> <tr> <td>12</td> <td>25.09.2015</td> <td>Original – Sanction of Validity for a further period up to 22.10.2015 executed by the 1^st Defendant in favour of the Applicant Bank.</td> <td>A.12</td> </tr> </tbody> </table>

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<tr> <td>13</td> <td>14.03.2013</td> <td>Original – Declaration cum Confirmation Deed executed by the 1^st Defendant in favour of the Applicant Bank.</td> <td>A.13</td> </tr> <tr> <td>14</td> <td>14.03.2013</td> <td>Original – Declaration cum Confirmation Deed executed by the 2^nd Defendant in favour of the Applicant Bank.</td> <td>A.14</td> </tr> <tr> <td>15</td> <td>14.03.2013</td> <td>Original – Declaration cum Confirmation Deed executed by the 3^rd Defendant in favour of the Applicant Bank.</td> <td>A.15</td> </tr> <tr> <td>16</td> <td>14.03.2013</td> <td>Original – Record of Mortgage by Deposit of Title Deeds executed by the 1^st Defendant in favour of the Applicant Bank.</td> <td>A.16</td> </tr> <tr> <td>17</td> <td>14.03.2013</td> <td>Original – Record of Mortgage by Deposit of Title Deeds executed by the 2^nd Defendant in favour of the Applicant Bank.</td> <td>A.17</td> </tr> <tr> <td>18</td> <td>14.03.2013</td> <td>Original – Record of Mortgage by Deposit of Title Deeds executed by the 3^rd Defendant in favour of the Applicant Bank.</td> <td>A.18</td> </tr> <tr> <td>19</td> <td>14.03.2013</td> <td>Original – Memorandum of Agreement Evidencing Deposit of Title Deeds executed by the Defendants in favour of the Applicant Bank in Doc.No.1457/2013.</td> <td>A.19</td> </tr> <tr> <td>20</td> <td>27.02.2008</td> <td>Original – Sale Deed executed by the Power Agent P. Stella Jothi of K.S. Nanjappan in favour of the 1^st Defendant in Doc.No.898/2008 with Field Map of SF No.19/1A of Ariyappampalayam Village, Sathyamangalam, Erode.</td> <td>A.20</td> </tr> <tr> <td>21</td> <td>04.06.2007</td> <td>Original – Sale Deed executed by R. Jayaprakash in favour of 3^rd Defendant in Doc.No.2809/2007 with Field Map.</td> <td>A.21</td> </tr> <tr> <td>22</td> <td>04.06.2007</td> <td>Original – Sale Deed executed by R. Jayaprakash in favour of 3^rd Defendant in Doc.No.2810/2007 with Field Map.</td> <td>A.22</td> </tr> <tr> <td>23</td> <td>04.06.2007</td> <td>Original – Sale Deed executed by R. Jayaprakash in favour of 3^rd Defendant in Doc.No.2811/2007 with Field Map.</td> <td>A.23</td> </tr> <tr> <td>24</td> <td>23.09.2004</td> <td>Original – Sale Deed executed by Krishnalakshmi, Power Agent of Mohanraj, Yogesh, Sri Geetha in favour of 1^st Defendant.</td> <td>A.24</td> </tr> <tr> <td>25</td> <td>11.06.1992</td> <td>Original – Sale Deed executed by S.E.</td> <td>A.25</td> </tr> </table>

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<tr> <td></td> <td></td> <td>Mohmmed Ali, Jaibunesa Begam, M. Syed Musthafa &amp; M. Mohammed Ibrahim in favour of 2^nd Defendant.</td> <td></td> </tr> <tr> <td>26</td> <td>27.02.2016</td> <td>Office Copy of the Legal Notice issued by the Applicant Bank to the Defendants with Postal Receipts.</td> <td>A.26</td> </tr> <tr> <td>27</td> <td>--</td> <td>Original - Un-served cover in respect of 1^st Defendant.</td> <td>A.27</td> </tr> <tr> <td>28</td> <td>29.02.2016</td> <td>Original - Acknowledgement Card of 3^rd Defendant.</td> <td>A.28</td> </tr> <tr> <td>29</td> <td>--</td> <td>Computer Statement of Account maintained by the Applicant Bank in the regular course of business as per the Bankers Book of Evidence Act for Cash Credit Account.</td> <td>A.29</td> </tr> <tr> <td>30</td> <td>--</td> <td>Memorandum of Interest.</td> <td>A.30</td> </tr> </table>

**[M.P. BALASUBRAMANIAN]**