Allowed

Bank of Baroda v. Shri Shashi Ramakrishnan Nair & Ors.

DRAT21 Jun 2023REGULAR APPEAL/17/2012

Case brief

AI extract

What is this about?

The Debt Recovery Appellate Tribunal allowed theBank of Baroda'sappeal, setting aside a lower court order that dismissed the application against guarantor Defendants, finding the dismissal erroneous due to lack of contest and existence of a deed of guarantee.

What did the court decide?

Impugned order dismissing O.A. against Defendants 2 and 3 set aside; O.A. allowed against all three defendants; fresh recovery certificate to be issued.

Bank of Baroda versus Shri Shashi Ramakrishnan Nair & Ors. — Banking and Recovery | DRAT (2023)

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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present : Mr. Justice Ashok Menon, Chairperson Appeal No. 17/2012

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Between

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Bank of Baroda … Appellant/s

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V/s.

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Shashi Ramakrishnan Nair & Ors. …Respondent/s

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Mr. Prashant Pandit along with Mr. Jay Pandit, i/b M/s. B.M. Gupta & Associates, Advocate for Appellant.

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This is an Appeal filed by the Appellant impugning the judgment and order dated 09.08.2010 in Original Application (O.A.) No. 35/2008 on the files of Debts Recovery Tribunal–III, Mumbai (D.R.T.).

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The O.A. was originally filed by the Dena Bank which subsequently merged with the Bank of Baroda the present Appellant for recovery of a sum of ₹ 10,67,203/- together with the interest at the rate of 12.25 % per annum with monthly rest from the date of filing of O.A. till realization against the 1^st Defendant who is the original borrower and Defendant No. 2 and 3 as guarantors.

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The Ld. Presiding Officer vide the impugned order decree the O.A. as against the 1^st Defendant alone. A mortgage decree was also granted with regard to the mortgaged property which is Flat No. 312, Karan Complex, Building No.02, 140, Hissa No. 03, Mira Bhayandar Road, Mira Road (East), Village Navghar Thane District. The O.A. against Defendant No. 2 and 3 were dismissed for reason that the Bank failed to establish that they were guarantors for the loan. The

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Appellant is aggrieved and hence in Appeal.

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Respondents remain ex-parte and hence, the Ld. Counsel appearing for the Appellant Bank Mr. Prashant Pandit was heard. The document was produced.

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Only question that arises for consideration in this Appeal is whether the Ld. Presiding Officer was justified in dismissing the O.A. as against Defendants No. 2 and 3. The perusal of the documents would indicate that the 1^st Defendant had borrowed a sum of ₹ 7.20 lakhs from the Appellant Bank after filing an application for the loan as Exhibit 14. He had mentioned the name of two persons namely George Reji Thomas and Vivek Kelvskar as guarantors. The Bank considered the application and refused to accept the 2% mentioned in Exhibit 14 as guarantors. Subsequently, the 1^st Respondent offered Respondent No. 2 and 3 as guarantors. The guarantee furnished by Respondent No. 2 and 3 was acceptable to the Bank and the loan was sanctioned. The term loan agreement produces as Exhibit 1, the general letter of lien and set off executed by the 1^st Respondent is Exhibit 17, and the guarantors namely Respondent No. 2 and 3 executed Exhibit 19 which is a deed of guarantee.

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The impugned order states that even though the deed of guarantee was executed by Defendants 2 and 3, they have not been arrayed in the O.A. as guarantors or as Defendants. This apparently appears to be an erroneous finding. It is further stated that even though the letter of general lien and set off from the guarantors have been produced before the Tribunal, the Appellant failed to prove that Defendants No. 2 and 3 stood as guarantors.

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On perusal of the proof of guarantee as Exhibit 19 no further proof is required more particularly so because all the Defendant were ex-parte and did not contest the O.A. Hence, the finding of the Ld. Presiding Officer that the Applicant Bank has failed to prove that Defendant No.2 and 3 were guarantors appears to be erroneous and cannot be sustained.

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Under the circumstances, I find that the impugned order dismissing the O.A. as against Defendant No.2 and 3 is not sustainable and is therefore set aside.

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The Appeal is allowed and the impugned order as regards dismissal of the O.A. against the Respondent No.2 and 3 (Defendant No.2 and 3) is set aside and the O.A. is allowed as prayed for as against Defendant No. 1 to 3. A fresh recovery certificate to that effect shall be issued.

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Sd/Chairperson

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psa-15

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Bank of Baroda v. Shri Shashi Ramakrishnan Nair & Ors.

Case brief

What is this about?

What did the court decide?

Bank of Baroda v. Shri Shashi Ramakrishnan Nair & Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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