w w w . L a w y e r S e r v i c e s . i n



IDBI Bank Ltd V/S Pinnacle Hitech Trade Pvt. Ltd. and Others.


Company & Directors' Information:- IDBI BANK LIMITED [Active] CIN = L65190MH2004GOI148838

Company & Directors' Information:- IDBI BANK LIMITED [Amalgamated] CIN = L65925MP1994PLC008624

Company & Directors' Information:- HITECH CORPORATION LIMITED [Active] CIN = L28992MH1991PLC168235

Company & Directors' Information:- I TRADE LIMITED [Active] CIN = U67120TN1999PLC043813

Company & Directors' Information:- TRADE INDIA LTD [Active] CIN = U51909PB1982PLC004822

Company & Directors' Information:- HITECH (INDIA) PRIVATE LIMITED [Active] CIN = U29220TG1974PTC001768

Company & Directors' Information:- R P TRADE PRIVATE LIMITED [Active] CIN = U51909AS1999PTC005646

Company & Directors' Information:- A R TRADE IN PRIVATE LIMITED [Active] CIN = U51909AS1999PTC005710

Company & Directors' Information:- S 3 M TRADE PRIVATE LIMITED [Active] CIN = U74900WB2013PTC193812

Company & Directors' Information:- PINNACLE (INDIA) PRIVATE LIMITED [Strike Off] CIN = U24231DL1999PTC099901

Company & Directors' Information:- C TRADE (INDIA) PRIVATE LIMITED [Active] CIN = U74900KA2008PTC045372

Company & Directors' Information:- B & G HITECH PRIVATE LIMITED [Strike Off] CIN = U93090PB2011PTC035602

Company & Directors' Information:- I-W TRADE PRIVATE LIMITED [Strike Off] CIN = U93030MH2012PTC233832

Company & Directors' Information:- U M TRADE PRIVATE LIMITED [Active] CIN = U67190MH2011PTC224523

Company & Directors' Information:- PINNACLE CORPORATION PRIVATE LIMITED [Active] CIN = U74900PN2013PTC148164

    Original Application No. 129/2013

    Decided On, 08 November 2017

    At, Debts Recovery Tribunal Aurangabad

    By, THE HONORABLE JUSTICE: DEEPAK M. THAKKAR
    By, PRESIDING OFFICER

    For Petitioner: D.S. Khamat, Advocate



Judgment Text


1. This is an application under sub-section (1) of section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (The 'RDDB & FI Act' for short) for the recovery of the dues in the sum of Rs. 65,58,409.12ps. together with future interest thereon from the date of filing of the Original Application till repayment/realization and for enforcement of the securities.

2. The factual matrix of the case is as under:-

i. Defendant No. 1 is a Company incorporated under the provisions of Companies Act, 1956 having its registered Office at the address mentioned in the cause title of the Original Application.

ii. Defendant No. 1 is the principal borrower, Defendant Nos. 2 to 10 are the guarantors. Defendant Nos. 1, 2 & 7 are the mortgagors.

iii. Defendant No. 10 was deleted from the array of the parties pursuant to the order dated 26-03-2014 passed in terms of the compromise terms (Exh. 32).

iv. The United Western Bank Ltd. was amalgamated with the Industrial Development Bank of India Ltd. as per Government of India Notification w.e.f. 03rd October, 2006.

v. At the request of defendant No. 1, United Western Bank Ltd. (UWB Bank) granted to it the cash credit facility in the sum of Rs. 40 Lakhs by way of working capital on 27th July, 2006. Defendant No. 1 agreed to pay interest @14% per annum with monthly rest. In order to secure the cash credit facility in the sum of Rs. 40 Lakhs, defendant No. 1 agreed to hypothecate the movables.

vi. Pursuant to the request made by the defendant No. 1, the aforesaid cash credit facility in the sum of Rs. 40 Lakhs was enhanced to Rs. 70 Lakhs on 18th March, 2008. The enhanced facility in the sum of Rs. 70 Lakhs was secured by the guarantee of defendant Nos. 2 to 10. Defendant No. 1 agreed to pay interest on the enhanced cash credit facility in the sum of Rs. 70 Lakhs @14.25% per annum with monthly rest.

vii. Defendants have signed and executed the loan and security documents with respect to the cash credit facility in the sum of Rs. 40 Lakhs which was subsequently enhanced to Rs. 70 Lakhs as set out in paragraph No. 5.5 of the Original Application.

viii. In order to further secure the aggregate credit facility in the sum of Rs. 70 Lakhs, defendant Nos. 1, 2 & 7 signed and executed the simple mortgage deed on 18th March, 2008, which has been duly registered bearing registration No. 1214/2008 with respect to the immovable properties as described below:

(1) All movable assets of the defendant No. 1-Company.

(2) All the piece & parcel of land, hereditaments and premises agricultural land bearing Gat No. 23, admeasuring 9H 24R (22.82 acres) situated at Chehel, Taluka Mangrulpir, District Washim, under the ownership and title of S.D. Chaudhari (Defendant No. 2) herein, together with construction and infrastructure standing thereon and that may be erected in future and more particularly bounded as towards East : Gat No. 33, West : Gat No. 24, South : Boundaries of Village & North : Gat No. 27 and 28.

(3) All the piece & parcel of open plot Nos. 29, 32 and 33 out of Gat No. 31/P, admeasuring in all 374.94 sq.mtrs., situated at Mauje Sunderwadi, Taluka and District Aurangabad, under the ownership and title of S.D. Chaudhari (Defendant No. 2) herein, together with construction and infrastructure standing thereon and that may be erected in future and more particularly bounded as under:

Boundaries of Plot No. 29 : East : Open space, West : 6 M wide road, South : 6 M wide road & North : Open space.

Boundaries of Plot Nos. 32 & 33 : East : 6 M wide road, West : Open space, South : Open space & North : Gat No. 31.

(4) All the piece & parcel of land and building at Plot/House No. 82, admeasuring 519 sq.ft., situated at Maharashtra Chowk (VDO) at Mangrulpir, District Washim, under the ownership and title of S.P. Waghmare (Defendant No. 7) herein, together with construction and infrastructure standing thereon and that may be erected in future and more particularly bounded as towards East : Shop of Waghmare, West : Krishna Hotel, South : Plot of Mr. Balawant Singh & North : Road.

ix. After availing the credit facilities, defendant No. 1 did not maintain the cash credit account properly. Therefore, the loan account became sticky and stagnant.

x. As per the Government of India Notification dated 30th September, 2006 and in pursuance of the sub-section 7 of Section 45 of the Banking Regulation Act, 1949, the scheme of amalgamation of the United Western Bank Ltd. into Industrial Development Bank of India Ltd. was sanctioned w.e.f. 03rd October, 2006. The applicant is therefore, entitled to the benefits of all remedies, rights, etc., which were available to the United Western Bank Ltd. and in pursuance of the loan and security documents subsisting between defendants and the United Western Bank Ltd.

xi. As aforesaid, after availing the cash credit facilities, it was noticed by the applicant that defendants did not adhere to the terms of sanction as well as the terms & conditions of the contract. The applicant found discrepancies in the operation of the cash credit account, which is more particularly set out in paragraph No. 5.12 of the Original Application. The irregularities in the cash credit account resulted in accruing the interest solely due to the negligence of the borrower.

xii. Defendants have also signed and executed the letter of acknowledgement of debt on 18th March, 2008, 12th October, 2009 & 26th October, 2010 thereby admitting and acknowledging the liability.

xiii. Thereafter, on 08th April, 2013 and 22nd May, 2013, the applicant issued demand notice calling upon the defendants to liquidate the entire outstanding.

xiv. At the foot of the account, there was owing, due and payable by the defendants to the applicant, the aggregate sum of Rs. 65,58,409.12ps. The applicant has maintained the loan ledger extract and the entries posted therein are made in the usual and ordinary course of banking business which is supported by the certificate as required under the law. Since defendants failed and neglected to make the payment, the applicant was left with no other alternate but to file the original application which was presented on 05th July, 2013.

3. Defendants were duly served with the summons. Despite service of summons, defendants do not choose to enter appearance. Therefore, defendants were set ex-parte on 17th January, 2014.

4. As aforesaid, defendant No. 10 was deleted from the array of the parties.

5. On the basis of the pleadings, the applicant has filed evidence/claim affidavit (Exhibit-28) of Shri Vijaya Kumar Kanuparthy and the list of documents (Exhibit-29) thereby adducing in evidence the documents at Sr. Nos. AW-01 to AW-17 which are admitted in evidence, read, recorded and exhibited.

6. I have scrutinized and examined the allegations contained in the Original Application and analyzed the evidence adduced by the applicant which has gone unchallenged, uncontroverted and unrebutted.

7. Since the Defendants are already set ex-parte, I am required to deal with the issue relevant to the case.

8. Recovery made: The applicant has moved an application styled as I.A. No. 336/2017 stating that the Original Application was filed for recovery in the sum of Rs. 65,58,409.12ps. and for enforcement of the securities as set out in paragraph No. 2 of the I.A. Pursuant to the Order dated 20th February, 2014 passed in I.A. (Exh. 27), Garnishee Order came to be passed attaching the payment of land acquisition with respect to the land admeasuring 2H 62R out of Gat No. 23, situated at Village Chehel, Tq. Mangrulpir, Dist. Washim. Pursuant to the Order dated 26th March, 2014, the compromise terms (Exh. 32) were filed by and between the applicant and defendant Nos. 1 to 9, whereby part of the land 7 acres (2H 80R) and the plot Nos. 29, 32 & 33 out of Gat No. 33/P as set out in paragraph No. 4 of the present I.A. No. 336/2017 was released on payment of Rs. 57 Lakhs. After deducting the land 2H 62R and 2H 80R, some portion of the mortgage land, i.e. 3H 82R, remained as set out in paragraph No. 5 of the present I.A. No. 336/2017 and kept under attachment for recovery of another account of defendants in R.P. No. 59/2013 in O.A. No. 15/2013 which is still pending before the Recovery Officer. Pursuant to the said compromise terms and as per the latest calculation, the dues outstanding was Rs. 34,53,513.12ps. including interest as on 01st September, 2017, out of which, the sum of Rs. 28,99,130/- has been received/deposited with this Tribunal as compensation pursuant to the Garnishee Order passed in I.A. (Exh. 27). Therefore, the applicant prays for issuance of the balance amount in the sum of Rs. 5,54,383.12 (i.e. Rs. 34,53,513.12ps. minus Rs. 28,99,130/-).

9. Pendent lite and future interest: The applicant has claimed pendent lite and future interest @15.75% per annum with monthly rests. The learned counsel for the applicant candidly submits that the pendent lite interest at the contractual rate, i.e. Rs. 14.25% per annum, be granted, which is fair and reasonable. As far as the future interest is concerned, i.e. interest from the date herein, it will be @6% per annum till payment/realization, which will meet the ends of justice.

10. Mortgaged security: The applicant has pleaded and established the creation of mortgage by defendant Nos. 2 and 7 to secure the credit facilities. Under Section 60 of the Transfer of Property Act, defendant Nos. 2 and 7 are entitled for redemption of mortgage upon payment of money. I, therefore, hold that defendant Nos. 2 and 7 are entitled for redemption of mortgage.

11. Upon careful scrutiny and the examination of the Original Application, analyzing the evidence and giving due weightage to the documentary evidence adduced by the applicant, I am of the view that the case made out by the applicant cannot be disbelieved.

12. In view of the observations made hereinabove, the Original Application filed by the applicant deserves to be allowed. Hence, I pass the following order:

ORDER

(A) Original Application No. 129/2013 is allowed with cost.

(B) Defendant Nos. 1 to 9 are ordered and directed to pay to the applicant either jointly or severally the aggregate sum of Rs. 5,54,383.12ps. (Rupees Five Lakhs, fifty four thousand, three hundred eighty-three and paise twelve only) together with interest @14.25% per annum from the date of filing of the Original Application i.e. 05th July, 2013 till the date of this Judgment and the future interest @6% per annum from 09th November, 2017 till its payment/realization.

(C) The aforesaid adjudicated amount is secured by the valid and subsisted mortgage of the immovable properties, i.e.

(1) All movable assets of the defendant No. 1-Company.

(2) All the piece & parcel of land, hereditaments and premises agricultural land bearing Gat No. 23, admeasuring 9H 24R (22.82 acres) situated at Chehel, Taluka Mangrulpir, District Washim, under the ownership and title of S.D. Chaudhari (Defendant No. 2) herein, together with construction and infrastructure standing thereon and that may be erected in future and more particularly bounded as towards East : Gat No. 33, West : Gat No. 24, South : Boundaries of Village & North : Gat No. 27 and 28.

(3) All the piece & parcel of open plot Nos. 29, 32 and 33 out of Gat No. 31/P, admeasuring in all 374.94 sq.mtrs., situated at Mauje Sunderwadi, Taluka and District Aurangabad, under the ownership and title of S.D. Chaudhari (Defendant No. 2) herein, together with construction and infrastructure standing thereon and that may be erected in future and more particularly bounded as under:

Boundaries of Plot No. 29 : East : Open space, West : 6 M wide road, South : 6 M wide road & North

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: Open space. Boundaries of Plot Nos. 32 & 33 : East : 6 M wide road, West : Open space, South : Open space & North : Gat No. 31. (4) All the piece & parcel of land and building at Plot/House No. 82, admeasuring 519 sq.ft., situated at Maharashtra Chowk (VDO) at Mangrulpir, District Washim, under the ownership and title of S.P. Waghmare (Defendant No. 7) herein, together with construction and infrastructure standing thereon and that may be erected in future and more particularly bounded as towards East : Shop of Waghmare, West : Krishna Hotel, South : Plot of Mr. Bala want Singh & North : Road. Except the portion of the properties as set out in paragraph Nos. 4 & 5 of the I.A. No. 336/2017. (D) Defendant Nos. 2 and 7 are granted liberty to redeem the mortgage within a period of 3 months from the date hereof, failing which the applicant will become entitled to put to sale the mortgage property and appropriate the sale proceed towards its claim in accordance with law. (E) The Registrar is directed to release the sum of Rs. 28,99,130/- to the applicant alongwith accrued interest thereon (if any). (F) Issue Recovery Certificate. (G) The Registrar is directed to send the copy of Judgment and Recovery Certificate to the applicant and defendants.
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