Ashok Menon, Chairperson
1. The Appellants are in appeal under Sec. 20 of the Recovery of Debts Due to Bank and Financial Institution Act, 1993 (“RDDB & FI Act”, for short) impugning the judgment and order dated 13.08.2008 allowing the Original Application (O.A.) 81 of 2003 filed by the Respondent Bank of India (BOI) by the Debts Recovery Tribunal-III, Mumbai (D.R.T.).
2. The first Appellant is a poultry farm owned by the second Appellant as its sole proprietor. Appellants Nos. 3 and 4 are the guarantors and Appellants Nos. 5 to 8 are the legal representatives of another deceased guarantor late Laxman Shankar Patil. The first Respondent BOI is the creditor bank and the rest of the Respondents are the auction purchasers.
3. Appellant Nos. 1 and 2 had borrowed money from the BOI on two facilities and defaulted repayment. The bank filed the O.A. for recovery of the amount due. Documents about the loan such as demand promissory note, continuing security bond, letter of lien and set off, declaration of non-borrowing, hypothecation agreement, and acknowledgment of the debt were executed apart from the creation of security interest by way of mortgage by deposit of title deeds.
4. The Defendants do not dispute the availing of the loan. The second Defendant has also not challenged the creation of the mortgage. The interest claimed is alleged to be exorbitant and the calculation is challenged. The third Defendant would contend that the guaranteed deed was executed under coercion and vitiated by undue influence. Defendants Nos. 5 to 8 contend that their predecessor in interest has not created any security and therefore, they are not necessary parties to the O.A.
5. The BOI had proceeded against the secured asset in Gat Nos. 319, 322, 325, and 326 in Sasawane Village, Tal Alibaug, District Raigad, and recovered ₹2,06,00,000/- and also ₹37,00,000/- in all the bank recovered ₹2,43,00,000/- after filing the O.A. The balance of ₹1,93,00,000/- is to be recovered. The bank claims a charge over the remaining property in Gat Nos. 44A and 44B.
6. The D.R.T. allowed the O.A. for ₹98,56,355.17 with interest at the rate of 12 per annum with effect from 14.08.2008 till realisation from Defendants Nos. 1 to 4 jointly and severally. Defendants Nos 5 to 8 were held liable to only the extent of the estate of the deceased guarantor Lakshman Shankar Patil. A Recovery Certificate was issued accordingly.
7. The Appellants had challenged the impugned order mainly on the ground that the bank has recovered the decree amount and therefore, the claim is fully satisfied. The sale of the mortgaged property is also challenged and it is also prayed that the sale in favour of auction purchasers may be set aside.
8. Heard Mr Rishabh Shah, the Ld. Counsel appearing for the Appellants and Mr Anant B. Shinde, the Ld. Counsel appearing for the first Respondent bank.
9. The contention regarding the validity of the acknowledgment of debt and the execution of the guarantee as vitiated by coercion and undue influence is not supported by any evidence and therefore, D.R.T. has rightly disregarded those contentions.
10. The Ld. Counsel appearing for the Appellants had pointed out to certain discrepancies in the account statement. There is no pleading regarding the challenge to the account statement or the correctness of the claim. Merely challenging the correctness of the claim will not do, unless it is supported by the pleadings and cogent evidence. There is none pleaded or proved by the Defendants. Hence, I do not find any substance in the contentions raised in the appeal. The challenge to the sale is also not well-founded.
There is no reason to upset the finding of the D.R.T. in the appeal; hence, the appeal is found to be without merits and dismissed.
