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O.A. No. 1399^{of 2019}

1. This Original Application has been filed by the applicant Bank under Section 19 of the Recovery of Debts & Bankruptcy Act, 1993, against the defendants for the recovery of Rs.1,82,26,009.60 (Rupees One Crore Eighty Two Lacs Twenty Six Thousand Nine and paisa Sixty Only) together with pendent-lite and future interest, costs and other reliefs etc.

2. The brief facts of case are that the defendant No.1 is a Proprietorship firm is engaged in the Business of Marbles, cements etc through its proprietor the defendant No.2 and the defendant Nos.3, 4 & 5 are the guarantors in this original application, The defendant Nos.l & 2 approached to the applicant bank for grant cash credit Hypothecation Limit of Rs.200.00 Lacs for Running Business, which was considered and sanctioned by the applicant-bank vide it sanction letter dated 01.03.2013(Annexure No. A-2 to Annexure No. A-3) to this original application.

3' In order to secure the aforesaid cash credit (Hypothecation) limit Facility of Rs.200.00 Lacs, the defendant Nos.l & 2 had signed and executed various necessary security documents like copy of agreement of Hypothecation of Goods and Books Debts to secure cash credit facility, Supplementary Agreement and Letter of authority on 01.03.2013 and the defendant Nos.3,4 & 5 signed and executed the agreement of guarantee on 01.03.2013 to secure and confirmed the liabilities undertaken by the defendant No.l in respect of credit facility, / the liabilities of defendant Nos.3, 4 & s are joint, several and co7 ,/i

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o.A. No. 1399 of 2019 extensive as well as same as equal to the defendant No.l and the defendant Nos. 2 to 5 confirmed the Acknowledgement of receipts dated 02/0312013 in favour of the applicant Bank (Annexure No.A-4 to Annexure No.A-8 Colly) to this Original application.

4. In order to secure the Repayments of the Banks dues, the defendant Nos. 2 & 3 created the equitable mortgage of their Immovable properties Lot (i) I.e. Residential House Bearine plot No.76. Part of Khasra No.2l6l2. Vikaspuri. AnoopNagar. Fazalpur. Meerut admeasuring 171.40 Square meter in the name of defendant No.2 the House Of Mr. Yadav NORTH : Plot of Shri Devendra Dutt Sharma SOUTH: 15 feet wide Road by depositing the Original title deed on 01.03.2013 in favour of the applicant bank which was duly Registered at Sub Registrar Meerut entered in Bahi No.l Zild No.l248 on pages No.397 to 418 at Serial No.4420 on 0t/1212005 and along with Lot (ii) Meerut admeasurins 362.11 Square meter in the name of defendant Nos. 4 & 5 the boundaries which are as Under EAST: 15 feet wide Kaushik by depositing the Original title deed on 01.03.2013 in favour of the applicant bank which was duly Registered at Sub Registrar Offlrce -I at Meerut entered in Bahi No.l Zild No.1694 on pages No.375 to 400 at 7 ,/

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o.A. No. 1399 of 2019 Serial No.6063 on 1611212006 along with the Lot (iii) Godown and Temporary construction Bearing prope4v No.236l5B. Village Khadauli Opposite Rohta- Road Meerut. admeasurins 137.79 Square meter in the name of defendant Nos. 2 & 3 the boundaries which are as Under EAST:House Of Subhash Siqghal WEST: Plot Of Rambabu NORTH :

Rohta Road SOUTH: Property of Anurag Kaushik was sold out measures talren under SARFAESI Act, 2002 at Rs.69.00 Lacs and sale Proceeds i.e. Rs.69.00 Lacs has also been adjusted into the Loan account of defendant No.l as executed(Annexure No.A-9 to Annexure No.A-I0) into this original application.

5. To Repayment of the credit facility, the applicant Bank had opened one Loan account in the name of defendant No.l in order to maintain credit and debit facilities of the sanctioned facility.

6. After availing the aforesaid Cash Credit facility, the defendants signed and executed the Balance and security confirmation letter on 2910512015 to confirmed Balance of Rs.2,02,18,005/- and further again on 1810412018 to confirmed the Balance of Rs.2,06,93,828.60/- dues in the cash credit account of the defendants in favour of the applicant Bank (Annexure No.A-ll to Annexure No.A-12) to this original application.

7. After availing the aforesaid Cash Credit facility, the defendant No.l failed to maintain financial discipline and also failed to comply with the terms and conditions of the loan agreement as required in the

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matter, the applicant Bank made all possible efforts through Oral a= ⁽

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O.A. No. 1399 of 2019 Persuasion and Letters etc, the defendants were reminded many times by the several applications but the defendants keep mum and have not come forward to make any efforts regarding payment of dues, the applicant Bank sent notices through registered posts and informed them by personal meetings also, but the defendants were remained irregular and the defendants did not care the deposit the amount to adjust/regularize the account despite various assurances given by the defendants, consequently, the said loan account of the defendants was classified as NPA since 30.06.2018 as per under R.B.I. Guidelines, thereafter the applicant Bank also issued the Recall Notice on 02.07.2018 (Annexure No.A-13 Colly) in the name of defendant Nos.l to 5 through Registered Post on 05.07.2018 further issued the letter of invocation of guarantee to the guarantors dated 26.04.2018(Annexure No.A-13 Colly) sent on 04.05.2018 through Registered posts and further served the Demand notice on 16.07.2018 (Annexure No.A-14 ) under the Section 1 3 (2) of SARI'AESI Act, 2002 to pay the outstanding dues within 60 days of the issued notice and finally the applicant Bank issued the Possession Notice dated 12.10.2018 (Annexure No.A-15) under Section of l3(4) of SARFAESI Act, to took the action in respect of credit facility as mentioned in this original application, requested for Repayments, But, the defendants did not paid the heed to the same, hence, this Original Application has been instituted.

8. As per books of the applicant bank and maintained in the usual .-) and ordinary course of banking business, an outstanding as the, ¹ ,/

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O.A. No. 1399 of 2019 Rs.1,82,26,009.60 (Rupees One Crore Eighty Two Lacs Twenty Six Thousand Nine and paisa Sixty Only) including interest upto 19.09.2019 in the loan account of defendants were lying due for payment, for which the defendants are jointly and severally liable to repay The applicant Bank has filed the copy of Statement of Account (Annexure No.A-16) to this Original application.

9. In respect of the cash credit facility, the applicant Bank obtained the valuation Report through Bank's approved Valuer By IWs Pashupati Associates of the property on 18.09.2018 (Annexure No.A-l7 colly) to this Original application

10. The cause of action for filing^the present application arose firstly 01.03.2013 when on the request of defendants Cash Credit Hypothecation facility was sanctioned by the applicant Bank^{and the} same were availed by the defendants and necessary documents were executed by them finally arose on 16.07.2018 when the applicant bank had sent Demand Notice to pay the entire outstanding dues and they failed to pay the same.

I 1. The summons were served to the defendants through registered post as well as by paper publication, but the defendants opted not^to contest the case before this Tribunal, hence, the matter proceeded ex- parte against the defendants.

12. From the perusal of the record, it is evident that^the defendants were provided with fair opportunities to contest the claim of the bank. 4 As^the defendants opted not to contest the case, so only point of , ,', ,/

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O.A. No. 1399^{of 2019} consideration before this Tribunal is as to whether bank is legally entitled to the amount as claimed in Original Application on the basis of documents and pleadings submitted by it.

I 3. In support of the case, Shri Garima Verma, Chief Manager of the applicant Bank has filed an affrdavit.

14. On a careful scrutiny of the evidences on affidavit and Annexure marked as Annexure No.A-l to Annexure No.A-17 Colly it is proved that defendants had availed the cash credit Hypothecation Limit facility from the applicant bank by executing loan and security documents detailed as above in favour of the applicant-Bank. A perusal of^the applications, evidence and documents relied upon clearly show^that defendants had utilized the above loan facility granted to them. The applicant- bank had maintained the Books of account in the ordinary course of banking business showing disbursal of the loan amount. The Bank had also charged interest from time to time and the entries^are relevant u/s 4 of the Bankers book of Evidence Act. It is also proved that the applicant-bank's claim is within limitation, therefore,^the defendantNos.lto5arejointlyandseverallyliabletopaythebank dues,

15. Accordingly, the defendant Nos'l to⁵are directed to pay the balances dues to the applicant bank within a period of 2 months from to

the date of Judgment failing which the applicant bank will be entitled sell the mortgaged properties/HyOothec1?d assets as well as personal assets/properties of the defendanls., /:

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16. The applicant-bank has claimed interest @10.25% per annum with monthly rest plus @ 2% penal interest charges with effect from 20.09.2019 till the date of realization and costs. The contest between applicantbank and the defendants comes to an end after filing the O.A. as per the provisions of section l9(2) of the Recovery of the Debts and Bankruptcy Act,l993 (as amended from time to time) which is analogous to section 34 to the CPC, the Tribunal/ Court has direction in awarding pendent-lite and future interest. I am also supported in my view by Hon'ble Supreme Court in a case titled Central Bank of India vs. Ravindra and others reported in AIR 2001 SC page 3095.On the basis of the foregoing discussion, interest ofjustice will be served if pendent-lite and future interest is granted @10.00Yo per annum with monthly rests on reducing balance from the date of filing of the O.A. till the date of realization with costs.

17. In the result, the Original Application succeeds ex parte against the defendant Nos.l to 5 with costs. The bank has proved the loan execution of loan documents and availment of credit facility. The liabilities the defendants are joint and several with the mortgaged properties/flypothecated assets as well as the personal properties/assets are liable to be sold.

It is, therefore, ordered:-

(D The Original Application No. 1399 of 2019 of the applicant bank for issuance of Recovery Certificate to the tune of

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Rs.1,82,26,009.60 (Rupees One Crore Eighty Two Lacs, - r!-l /.,

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O.A. No. 1399 of 2019 Twenty Six Thousand Nine and paisa Sixty Only) together with pendent-lite and future interest @10.000 per annum from the date of filing of the Original Application i.e. 25.09.2019 tillthe loan is fully liquidated and costs succeeds allowed ex parte against the defendant Nos.l to 5.

(ii) The defendant Nos.l to 5 are directed to pay the dues within a period of two months from the date of Judgement, failing which the applicant bank will be entitled to recover the same from the secured assets, personal movables and immovable assets of the defendants.

(iii) The applicant-bank is entitled to recover aforesaid amount by Sale of Mortgaged properties/Hypothecated assets (if not sold earlier under the provision of the S.A.R.F.A.E.S.I. Act,2002).The amount, if any, already recovered by the sale of any hypothecated assets or otherwise shall be adjusted towards the debt and only the balance amount shall^be recoverable. If the dues of the applicant-bank still remain unsatisfied,^and sale of the personal movable and immovable assets of the defendants jointly and severally.

(iv) The defendants are hereby restrained by means of injunction form depleting, transferring, encumbering, alienating or in any way dealing with their properties/estry; without first paying the claim ofthe applicant-bank , t¹

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o.A. No. 1399 of 2019

(v) Let the Recovery Certificate be issued immediately uls 19(22) of^the Recovery of Debts Due to Bank and Bankruptcy^Act,

1 993 by fixing 22.02.2022 before Recovery Officer, DRT, Lucknow.

(vi) The applicant bank is directed to file a memo of costs for preparing Recovery Certificate uls 19(22) of the Recovery of Debts Due to Banks and Bankruptcy Act, 1993. Judgment is pronounced in the open Court

Dated: 21.12.2021

(A,

Presidl'ng Officer

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