1. The hearing was conducted through virtual mode amid COVID- 19 restrictions upon request for ex-parte hearing. Mr. Sikandarkhan M. Pa than,
Ld. Counsel appeared for Applicant Bank.
Heard the Ld. Counsel for the bank and also gone through records with his assistance. The defendants are ex-parte.
2. This Original Application has been filed by the Applicant Bank under Section 19 of The Recovery of Debts Due to Banks and Financial Institutions
Act, 1993, now amended as The Recovery of Debts and Bankruptcy Act, 1993, against the defendant no.l to 7 for recovery of Rs.2,26,45,615/-
(Rupees: Two Crores Twenty Six Lakhs Forty Five Thousand Six Hundred Fifteen Only) together with further interest thereon at the rate of 12% per
annum for Term Loan and Cash Credit Loan with monthly rests and 2% penal interest being the amount due and payable by the defendants inclusive
of interest upto 10.04.2019 from the date of filing of Original Application till the realization of entire dues of the applicant bank along with cost and
other relief as stated.
3. The defendants were summoned through registered post with AD Card. As per office report notices sent to defendants did not return un-served.
The track report of the delivery of the items on all the defendants were also placed on record. The Applicant also filed a purshis to this effect at Exh.
A/5. Despite service, none appeared on behalf of the defendants to contest the case. Thus, the case was proceeded ex-parte against the defendants
due to their non-appearance.
4. In support of Original Application, Applicant has filed affidavit in support of Suit Claim at Exh.A/6, which is sworn by Mr.Tarun Dhall, Branch
Manager of the Applicant Bank. Applicant bank has filed evidence as affidavit and proved on record as Exh.AWl/1 to AWl/22.
5. To save time and to avoid repetition, I have not narrated facts of the case as bank has already detailed such facts in its written submission which is
reproduced as under:
WRITTEN SUBMISSION OF THE APPLICANT
The Applicant, above named, begs to submit as under:
1. That, virtual hearing due to pandemic COVID - 19 has been conducted on 07/09/2020, and as per order dated 07/09/2020, of this
Honourable Tribunal, in support of my oral arguments, I am submitting this WRITTEN SUBMISSION, for and on behalf of the Applicant
Bank.
2. The Defendant Nos. l is a principal borrower and Defendant Nos. 2 to 4 are partners and guarantors whereas Defendant Nos. 5 to 7 are
Mortgagors and Guarantors in respect of financial assistance availed by the defendant no. l Partnership Firm. Thus, defendant nos.1 to 7
are jointly and severally liable to the Applicant Bank for the present outstanding dues.
3. The defendant no.1 had approached the Applicant for grant of financial assistance in the year 2015. The Applicant further says that the
said financial assistance for Rs.3,48,00.000/- was granted vide Sanction Letter dated 17/07/2015 as stated in Para 5.3 and Para 5.4 of the
O.A. A copy of said Sanction Letter is already produced at Page No 22 TO 24 of the O.A.
4. The Applicant further says that the Defendant No.l has thereafter executed documents in favour of the Applicant on 04/08/2015 as stated
in Para 5.5 of the O.A. A copies of said documents are produced at Paqe Nos. 25 TO 76.
5. The defendant nos.5 to 7 have executed Letter of Guarantee in favour of the Applicant on 04/08/2015 as stated in para 5.5 and same is
produced at Paqe Nos. 50 TO 58.
6. Moreover, Defendant Nos1 to 7 have also executed Letter of Acknowledgment of Debts on 31/01/2018 as per particular mentioned in
Para No.5.13 of the O.A.
7. The Applicant further says that the said financial assistance is thus secured by security as mentioned in Para 5. 7 and Para 5.8 of the
O.A.
8. The Applicant Bank is entitled to claim and charge interest as per particulars mentioned in Para 5.10 of the O.A.
9. The Applicant submits that the defendant no.l had committed default in repayment of loan and ultimately account of the Defendant No.l
has been as classified as NPA on 27/08/2018 as stated in Para 5.11 of the O.A.
10. The Applicant submits that ultimately, Applicant Bank had given necessary Legal I Statutory re-call notice to the Defendants Nos.1 to 7,
and called upon all the Defendants No 1 to 7 to repay the outstanding dues as stated in Para 5.16. A copy of Legal/ Statutory re-call notice
is produced at Page Nos. 152 TO 154.
11. The Applicant submits that ultimately, Applicant has filed 0.A. for recovery of outstanding dues as mentioned in para 6 of the O.A. The
Applicant submits that the Statement of Account duly certified to be true under the Bankers Books Evidence Act is produced at Page Nos.
129 TO 151 of the O.A.
12. The Applicant Bank most respectfully submits that, Summons / Notices, dated 17/06/2019, are served to all the Defendants through
Registered Post AD. on 25/06/2019 (Def. No 1), 20/06/2019 (Def. No 2), 20/06/2019 (Def. No 3), 22/06/2019 (Def. No 4), 20/06/2019 (Def.
No 5), 20/06/2019 (Def. No 6) and 22/06/2019 (Def. No 7). Even though served No one had appeared to def end the case, and the case is
proceeded ex-parte.
13. The Applicant submits that the Applicant had filed Suit Claim Affidavit vide EXHIBIT ""A W-1"" and Applicant has proved the
documents in accordance with the law.
14. Moreover, Applicant has also proved documents vide EXHIBIT ""AW-1/2 TO AW-1/22"".
15. Under the facts and the circumstances, the Applicant Bank submits that this Hon'ble Tribunal be pleased to issue Recovery Certificate in
favour of the Applicant Bank and against all the defendants in the interest of larger justice.
6. From the perusal of the records, it is evident that defendants were provided with fair opportunity to contest the claim of the bank.
7. As the defendants opted not to contest the case, so only point of consideration before this Tribunal is whether the applicant Bank is legally entitled
to the amount as claimed in O.A. on the basis of documents and pleadings submitted by it before the Tribunal.
8. The bank has produced on record various documents towards Execution of loan documents as Exh.AWl/2 to Exh.AWl/22 for the credit facilities
and towards the default and liability of the said defendants, which is exhibited as under â€
1 Sanction letter dated 18.02.2012 Exh.AWl/2
2 Demand Promissory Note for Rs.2,48,00,000 /- Exh.AWl/3
3 Letter of Installment with Acceleration Clause Exh.AWl/4
4 Demand Promissory Note for Rs.1,00,00,000/- Exh.AWl/6
5 Letter of Partnership of defendant no.l firm Exh.AWl/7
6 Power of Attorney in respect of Book Debts facility Exh.AWl/8
7 Letter of Undertaking Exh.AWl/9
8 Letter of Continuing Security Exh.AWl/10
9 Declaration cum Undertaking Exh.AWl/11
10 Declarations cum Undertakings cum Authority Exh.AWl/13
11 General Form of Guarantee Exh.AWl/14
12 Composite Hypothecation Agreement Exh.AWl/15
13 Registered Mortgage Deed, registered with the SRO Bhabhar, vide Exh.AWl/16
registration no.954
14 Statement of Accounts Exh.AWl/17
15 Recall notice Exh.AWl/18
16 Bankers' Books Evidence Exh.AWl/19
17 Interest Calculation Certificate Exh.AWl/20
18 Letter of Acknowledgment of Debts Exh.AWl/21
9. I have gone through the loan documents of the Original Application and also considered the submission made by learned counsel for the Applicant
Bank. The evidence produced by the Bank remains un-rebutted. There is no reason to disbelieve the same.
10. The Original Application is within time from the date of execution of documents, creation of mortgage and execution of Letter of
Acknowledgment of Debts dtd:31.01.2018. Further bank has proved on record hypothecated assets described in Schedule I and mortgaged properties
described in Schedule II to X of the Original Application of defendant no.l, 2, 3, 5, 6 & 7 of their respective properties. This Tribunal has jurisdiction to
try and entertain this Original Application as cause of auction accrues to the bank within the territorial jurisdiction of this Tribunal and bank has filed
this Original Application to recover its dues, which comes within the ambit of term 'Debt' as defined under Section 2(g) of the Recovery of Debts and
Bankruptcy Act, 1993.
11. As per statement of account on the date of filing of O.A. the bank has claimed Rs.2,26,45,615/- (Rupees: Two Crores Twenty Six Lakhs Forty
Five Thousand Six Hundred Fifteen Only) together with further interest thereon at the rate of 12% per annum for Term Loan and Cash Credit Loan
with monthly rests and 2% penal interest being the amount due and payable by the defendant inclusive of interest upto 10.04.2019 from the date of
filing of Original Application till the realization of entire dues, but I feel judicious to grant interest @10% p.a. simple for pendentelite future period for
the said facility in view of the socio-economic slowdown due to the outbreak of COVID-19 pandemic.
12. The bank has proved documents executed by the borrowers/guarantors and have duly proved its case as explained in written arguments.
13. As a result, the Original Application is allowed exparte with cost against defendant no.l to 7. The Bank has proved the loan, execution of loan
documents, hypothecation, creation of mortgage, default and liability of the defendant no.l to 7. The liability of the defendant no.l to 7 will be joint and
several and the hypothecated assets/mortgaged properties along with other personal movable and immovable properties of the defendant no. l to 7 can
also be sold for recovery of amount due.
14. It is, therefore ordered:-
(i) That the Original Application No. 388 of 2019 initiated by the Applicant Bank for issuance of Recovery Certificate to the tune of Rs.2,26,45,615 /-
(Rupees: Two Crores Twenty Six Lakhs Forty Five Thousand Six Hundred Fifteen Only) together with interest and costs hereby succeeds and is
allowed against the defendant no. l to 7.
(ii) The defendant no.l to 7 are directed to pay the dues within a period of two months from the date of judgment, failing which the Applicant Bank will
be entitled to sell the hypothecated assets/mortgaged properties along with the personal movables and immovable properties of the defendant no.l to 7.
The Applicant Bank is further entitled to pendentelite and future interest on the amount due @10% per annum simple for the said credit facilities from
date of filing of Original Application till the full recovery is made from the defendant no.l to 7.
(iii) Let a Recovery Certificate be issued with memo of cost immediately u/s 19(22) of ""The Recovery of Debts and Bankruptcy Act, 1993 together
with the details of the properties, if any, by fixing 11.12.2020 before Learned R.O., DRT-1, Ahmedabad.
(iv) The defendant no.l to 7 are hereby restrained by means of injunction from depleting, transferring, encumbering, alienating or in any way dealing
with their properties/assets without first paying the claim of the Applicant Bank.
Given under my hand and the seal of this Tribunal on this
date: 09.10.2020.
Dictated on 09.10.2020
Corrected and signed by me on 09.10.2020.
