Partly allowed

Union Bank of India v. M/S Yashoda Poultry Farm

DRT7 Oct 2023OA/220/2022

Case brief

AI extract

What is this about?

The Tribunal allowed the banking applicant's recovery application partly. It disregarded the claimed amount of ~Rs. 86 lakhs due to RBI guideline violations, and adjudicated a lower principal amount of Rs. 57,33,457.54 along with future interest.

What did the court decide?

Applicant's original application allowed to the extent of Rs. 57,33,457.54 with pendent lite and future interest @ 10% p.a. from 1st April 2019.

Union Bank of India versus M/S Yashoda Poultry Farm — Contract and Commercial Disputes | DRT (2023)

¶1

¶2

Presented on: 16/03/2022 Registered on: 18/07/2022 Decided on: 07/10/2023 Duration: Yr Mts. Ds 01 06 22

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IN THE DEBTS RECOVERY TRIBUNAL, AT AURANGABAD

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Original Application No. 220 of 2022

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Total claim amount : Rs. 85,98,421.81 ps

¶6

UNION BANK OF INDIA,

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A Body Corporate and constituted under the banking Companies (Acquisition of Undertaking) Act, 1970, having its Central office at Union Bank Bhavan, 239, Vidhan Bhavan Marg, Mumbai – 400 021 and amongst other branches, one of the Branch Office at Gaurav Plaza, Ground floor, opp. Bharatiya Vidya Mandir, Post Office road, Hingoli, through its Authorized Officer Shri Gajendrakumar Vitthalrao Godhawale, age 40 years occup. service , working as Manager, Union Bank of India, Hingoli. IFSC Code : UBIN0532304

¶8

… Applicant

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Versus

¶10

M/s. Yashoda Poultry Farm through its Proprietor Mr Subhash Chakradhar Nirgude, age major occup. business R/o shop No. 8, R.K. Big Bazaar Shopping Complex, Ramkrishna Nagar, Akola road, Balsond, Hingoli Taluka and Dist. Hingoli

(OA No.220 /2022)

Page 1 of 21

[PJM]

AND Survey No. 7 & 9/3 at Limbala post Aadgaon Tal. & Dist. Hingoli PAN : ACNPN5439K. Mo. O. 9637375363/9028988999

¶15

AND Property o. 1726, plot No. 6 from Gat No. 104, 105, 106 total admeasuring area 475.35 sq.mtrs. located at Balsond Taluka 7 Dist. Hingoli

¶16

AND Block No. 8, property No. 7 on plot No. 6 from Gat No. 84 total admeasuring area 13.94 sq.mtrs. located at R.K. Big Bazaar, Ramkrushna Nagar, Balsond Tal. & Dist. Hingoli

¶17

AND

¶18

Survey No. 7 total admeasuring area 1H.10R located at Limbala (Pw) Tal. 7 Dist. Hingoli AND

¶19

Sur.No. 9/3 total addmeasuring area 1H.54.5R located at Limbala (Pw), Limbala (Pw) Tal. & Dist. Hingoli.

¶20

Mr Prakash Chakradhar Nirgude, age major occup. business R/o Bhandegaon Tal. & Dist. Hingoli PAN No. ACDPN5628A. AND Property No. 160 on plot No. 4 total admeasuring area 109.20 Sq.Mtrs, located at Balsond Tal. & Dist. Hingoli

(OA No.220 /2022)

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[PJM]

AND

Property No. 161 on plot No. 5 total admeasuring area 125.40 sq.Mtrs, located at Balsond Tal. & Dist. Hingoli

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AND

¶27

Property No. 15 on plot No. 53 from Gat o. 104, 105, 106 total admeasuring area 150 sq.Mtrs. located at Balsond Tal. & Dist. Hingoli.

¶28

AND

¶29

Property No. 681 from Gat No.11 total admeasuring area 1260 Sq.Mtrs located at Bhandegaon Tal. & Dist. Hingoli

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AND

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Property No. 719 from Gat No. 11 total admeasuring area 65.34 Sq.Mtrs. located at Bhandegaon Tal. & Dist. Hingoli.

¶32

3 Mr Ramchandra Narayan Ranjve, age major occup. business R/o Anand Colony, near Bus Stand, Risod Dist. Washim …Defendants

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APPEARANCES

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For the Applicant Mr. Atul A. Mishra – Advocate For Defendant Nos. 1 & 2 Mr R.D. Sakhare, Adv.

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Shri Vimal Gupta Presiding Officer

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JUDGMENT PRONOUNCED ON : 7^th October 2023

(OA No.220 /2022)

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[PJM]

J U D G M E N T

This is an application under sub-section (1) of section 19 of the Recovery of Debts and Bankruptcy Act, 1993 (‘The 1993 Act’ for short) for recovery of the dues in the sum of Rs.85,98,421.81 ps (Rs. eighty five lakhs ninety eight thousand four hundred twenty one and ps. eighty one only) together with future interest thereon from the date of filing the application till repayment/ realization.

¶42

The facts of the case are as under:

¶43

Defendant No.1 is dealing with poultry farm business at village Limbala Tal. Hingoli through proprietor Mr Subhash Chakradhar Nirgude. He approached the applicant bank seeking financial assistance for construction of poultry farm of Rs. 63,50,000/- and Rs. 36,00,000/- as working capital for the said business. Considering the request of defendant No.1 and feasibility of the loan proposal, applicant bank sanctioned term loan of Rs. 63,50,000/- (Rs. sixty three lakhs fifty thousand only) and cash credit – working capital loan of Rs. 36,00,000/- (Rs. thirty six lakhs only) on 05/10/2022, making total loan of Rs. 99,50,000/- (Rs. ninety nine lakhs

(OA No.220 /2022)

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[PJM]

fifty thousand only). Defendant No.2, who is brother of prop. of the poultry farm- Subhash Chakradhar Nirgude and deft. No.3 voluntarily stood guarantors for repayment of the loan amount with interest thereon by defendant No.1. Defendant No.1 agreed to repay the loan amount with interest thereon at the rate of 13.25% per annum, with half yearly rests. He also agreed that the term loan of Rs. 63,50,000/- by quarterly installment of Rs. 2,26,786/- in 28 installments plus interest thereon; and cash credit loan amount will be renewed yearly on payment of interest thereon regularly or it would be paid on demand. Defendant No.1 also agreed that he would pay penal interest @ 2% p.a. in case of default in repayment schedule. Defendants in token of acceptance of terms and conditions signed on the sanction letter dated 05/10/2012.

¶48

Defendant No.1 as borrower and defendants No. 2 & 3 executed the following documents in favour of applicantbank to secure the term loan of Rs. 63,50,000/- and cash credit loan of Rs.36,00,000/- with interest thereon:

¶49

(A) Deft. No.1 executed Demand Promissory note on

¶50

17/10/2012 promising to repay term loan amount of Rs.

(OA No.220 /2022)

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[PJM]

63,50,000/- with interest thereon @ 13.25% p.a., on demand.

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(B) Deft. No.1 executed D.P. Note on 17/10/2012 promissing to repay cash credit loan amount of Rs. 36,00,000/- with interest thereon @ 13.25% p.a., on demand.

¶56

(C) Deft. No.1 executed Hypothecation Agreement on 17/10/2012 for cash credit loan of Rs. 36,00,000/- and term loan of Rs. 63,50,000/-, aggregating sum of Rs. 99,50,000/and thereby agreed repayment schedule, as stated above, and hypothecated the assets purchased/created with the finance of the applicant.

¶57

(D) Defts. No.2 & 3 executed Deed of Guarantee on 20/10/2012 and thereby guaranteed the repayment of both the loan amounts totalling Rs. 99,50,000/- with interest thereon by deft. No.1.

¶58

(E) Deft. No.1 also executed Composite Hypothecation Deed on 17/10/2012 for total loan of Rs. 99,50,000/-

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(G) Declaration/Undertaking by Deft. No.1 on 17/10/2012 that he is the absolute owner of the said poultry farm and not dealt with property in favour of any other person and he is ready to execute the mortgage deed of the property in favour of applicant, etc.

(OA No.220 /2022)

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[PJM]

(H) Deft. No.1 also executed Simple Loan Agreement for both the aforesaid loan accounts on 17/10/2012.

¶64

(I) Deft. No.1 on 17/10/2012 also executed Letter of Undertaking not to alienate hypothecated goods till his liability to repay the due amount completes.

¶65

(J) Deft. No.1 executed Letter of Continuity for both loan amounts of Rs. 36,00,000/- + Rs. 63.50,000/- making total Rs. 99,50,000/- on 17/10/2012 and thereby they will be liable to repay the loan amounts on the basis of aforesaid demand promissory notes and other documents referred above.

¶66

(K) Defts. No.1 & 2 executed registered mortgage deed in favour of applicant bank to secure the loan amount of Rs. 36,00,000/- + term loan of 63,50,000/- making total loan of Rs. 99,50,000/- on 08/10/2012, vide Regn. No. 4155/2012 on 08/10/2012, and thereby created charge of the applicant bank on the immovable property, as mentioned in para No. 5.8 of the orig. application and the mortgage deed, more particularly, shown below:

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Property owned & possessed by Deft.No.1 Subhash C. Nirgude/borrower:

(OA No.220 /2022)

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[PJM]

Item No.	Property No.	Area H.R.	Location	Boundaries:
1	Property No. 1726, plot no. 6 from Gat No. 104, 105, 106	475.35 sq.mtrs	Balsond Tal. & Dist. Hingoli	E: plot no.7 W:Akola-Hingoli road, S: road N: plot no.5
2	Block no.8, property no.7 on plot no.6 from Gat no. 84	13.94 sq.mtrs	R.K. big bazaar, Ramkrishn a nagar, Balsond Dist. Hingoli	E: block no.9 W:block no.7 S:block no. 17 N:passage & road
3	Survey No. 7	1H.10R	Limbala (Pw)Tal. & Dist. Hingoli	E:Namdeo Lodba W:Ragho Ramji S:Pandita & Mohan N:Ashok Namaji
4	Sur.no.9/3	1H.54.5 R	Limbala (pw) Tal. & Dist. Hingoli	E: Laxman & Maroti W:village boundary S:Maroti & Hari N:Sanjay & Bharat

¶72

II. Property owned & possessed by Deft.No.2 Mr Prakash C. Nirgude/Guarantor:

¶73

Item No.	Property No.	Area H.R.	Location	Boundaries:
1	Property No. 160/4	109.20 sq.mtrs	Balsond Tal. & Dist. Hingoli	E: plot no.5 W:plot o.3 S: road N: plot no.6
2	Property no. 161 on plot no.5	125.40 sq.mtrs	Balsond	E:road W:plot no.4 S:road N:plot no.6
3	Property no.15 on plot no.53	150 sq.mtrs	Balsond	E:plot no.55 W: road S:plot no.54

(OA No.220 /2022)

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[PJM]

	from Gat no. 104,105, 106			N: plot no.52
4	Property no. 681 from Gat no. 11	1260 sq.ft	Bhandegao n Tal. & dist. Hingoli	E: survey no.11 W:open space S: road N:Datta Ramkishan
5	Property no. 719 from Gat no.11	6534 sq.ft	Bhandeaon	E: Gitabai W: Parmeshwar S:Gawthan N:Dattarao

¶78

i.e. the parts and parcels of the above property along with all furniture, fixtures and things attached therewith, and more particularly, described in paragraph 5.8 of the Original Application.

¶79

It is further pleaded by the applicant that defendants No.1 to 3 /borrower and guarantors again executed fresh documents in favour of applicant bank to secure repayment of both the loan amounts of Rs. 63,50,000/- + Rs. 36,00,000/- total Rs. 99,50,000/- on 06/11/2015:

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(A) Demand Promissory note of Rs. 36,00,000/- by Deft. No.1 promissing to repay the said loan amount alongwith interest @12.40% p.a. with half yearly rests, on demand;

¶81

(B) D.P. Note for Rs. 63,50,000/- by Deft. No.1 promissing to repay the said loan amount a/w int. @ 12.40% p.a. with

(OA No.220 /2022)

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[PJM]

half yearly rests, on demand.

¶86

(C) Deft. No.1 executed composite hypothecation deed and thereby hypothecated the assets purchased with the finance of the applicant and also crops standing on the mortgaged lands to secure the loan amount.

¶87

(D) Defts. No.2 & 3 executed Deed of guarantee in favour of applicant guaranteeing repayment of total loan amount of Rs. 99.50 lakhs a/w. interest thereon by Deft. No.1

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(E) Deft. No.1 executed Simple Loan Agreement for total loan amount of Rs. 99.50 lakhs assuring the repayment of the loan amount as aforesaid.

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(F) Declaration/Undertaking by Dedft. No.1, as already described.

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(G) Letter of undertaking not to alienate hypothecated goods.

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(H) Letter of Continuity of demand promissory notes dated 17/10/2012

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(I) Agreement on rate of interest by Deft. No.1 to be base rate @ 12.75% p.a.

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(J) Deft. No.1 executed Letter (SD-22) and thereby

(OA No.220 /2022)

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[PJM]

acknowledged that amount of Rs. 40,89994.34 ps. of term loan and Rs. 34,33,536.83 ps. of cash credit loan are due against him as on 30/09/2015.

¶98

(K) Deft. No.1 executed Debit balance confirmation and acknowledgment with revised rate of interest and thereby acknowledged due amount of Rs. 35,76,152.83 ps. of cash credit limit loan and Rs. 40,89,994.34 ps. of term loan as on 06/11/2015.

¶99

(L) Deft. No.1 also executed letter of undertaking/fresh promise in case of time barred debts

¶100

After availing the above said both the loan facilities, the defendants did not maintain the financial disciplinerepayment programme and failed to pay the installments, despite the assurances and promises of the defendants to regularize the loan account, the defendants did not pay the dues of the applicant bank, whereby the dues in the loan account kept increasing gradually and interest kept mounting. The defaults committed by the defendants were long and persistent. Therefore, both the loan accounts of the defendants were classified as NPA on 31/03/2021.

(OA No.220 /2022)

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[PJM]

Since the defendants failed and neglected to make the repayment, the applicant bank decided to terminate the loan facilities of defendants and hence the applicant bank demanded payment from the defendants time and again and, lastly, issued legal demand notices on 10/12/2020 calling upon the defendants to liquidate the entire outstanding loan amount plus interest and other charges of both the loan accounts, separately. However, the defendants did not pay any heed to it and failed to repay the loan amount. In the meantime, defendants deposited some amounts in the loan account, which have been adjusted towards repayment, as shown in ledger extracts.

¶105

At the foot of the account, there was owing, due and payable by defendants to the applicant bank as on 31/01/2022 that of Rs.32,31,629.68 ps. of cash credit loan a/c. + Rs. 53,66,792.13 ps. of term loan account making total Rs. 85,98,421.81 ps. The applicant bank 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 law. Since the

(OA No.220 /2022)

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[PJM]

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 16^th March 2022.

¶110

Defendants, in pursuance of the summons appeared in the matter and filed their written statement at Exh. 12. It is contended that the application is barred by law of limitation. It is further contended that the bank charged exorbitant rate of interest. Defendants admit that they have obtained loan amount alongwith rate of interest and repayment schedule, as pleaded by applicant bank. Defendants further admit the execution of the documents alongwith fresh documents dated 06/11/2015, as shown above. Defendants contend that the applicant bank did not try to see that defendants may get subsidy from the NABARD. Moreover, they have not been given benefit of Covid situation and also no moratorium period/facility. Due to covid situation and more activeness of the social media spreading discussion that covid affects because of eating poultry items, sale of his business came to zero/standstill putting the unit to huge loss. Defts. contend

(OA No.220 /2022)

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[PJM]

that they have made regular repayment of the loan amounts during the period of 2013 to 2020. Further more, Deft. No.1 made repayment by selling his property No. 1276 plot no. 6 out of S.no. 104, 105 & 106 area 475.35 sq.mtrs. with permission of the bank authorities out of which he deposited lumpsum amount of Rs. 35.00 lakhs in the bank during June to Sept. 2015. However, it is contended that Deft. No.1 was in need of additional cash credit for which he requested applicant but his request not allowed and thereby for want of insufficient funds he could not succeed in the business. Further more, in the year 2018-2019 there was drought situation in the State and prices of food material of poultry were increased to a large extent setting back unit of the defendants. Deft.No.1 also showed willingness to settle the loan accounts by OTS but the applicant-authorities imposed condition to deposit 10% of the due amount first and then and then only, the proposal will be considered. However, Defts. could not deposit 10% of the due amount. Thus, defendants lastly prayed to dismiss the application with costs.

(OA No.220 /2022)

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[PJM]

In the meantime, vide order dated 03/07/2023 Court Commissioner was appointed for service of summons/notices and verifying the addresses of secured assets and making enquiries regarding the possession of the immovable properties situated at Balsond, Limbala (P) and at Bhandegaon Tal. & Dist. Hingoli with a direction to submit his report within a period of 15 days of visit. Accordingly, the Court Commissioner visited the property, served notices upon defendants and submitted his report alongwith panchnama on 08/09/2023.

¶119

The applicant bank has filed claim affidavit (Exhibit-4) of Mr.Gajendrakumar Vitthalrao Godhawale, Manager along with list (Exh.5) of original documents to corroborate and prove its claim as given in the Original Application thereby adduced in evidence -the original documents at Sr.No. AW-1 to AW-30, which are admitted in evidence, read, recorded and exhibited.

¶120

In rebuttal, the defendants could not adduce any oral or documentary evidence in support of their contentions, as

(OA No.220 /2022)

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[PJM]

alleged in written statement Exh.12. Even either of the defendants failed to adduce his evidence on affidavit as well. Therefore, there is no reason to disbelieve the evidence of the applicant bank.

¶125

Heard the learned counsel for the applicant bank. I have scrutinized and examined the allegations made in the Original Application and analyzed the evidence adduced by the applicant which has gone unchallenged, uncontroverted and unrebutted. Defendants in support of their contentions in the written statement Exh. 12 did not adduce any oral or documentary evidence. On perusal of the documents, it is clear that the application is well within the period of limitation. Initially, defendants executed relevant documents on 17/10/2012. Thereafter Deft. No.1 acknowledged the amount due against him that of Rs. 40,89,994.34 ps. of term loan and Rs. 34,33,536.83 ps of cash credit loan by executing balance confirmation slips on 08/10/2015. Defendants also executed documents afresh continuing the loan transaction on 06/11/2015. On going through the ledger extracts, it clearly shows that defendants deposited various

(OA No.220 /2022)

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[PJM]

amounts in both the loan accounts including on 03/10/2018, 05/10/2018, 30/09/2018 and lastly on 29/03/2019 and the present application is filed on 16/03/2022, accepting the liability to repay the amount due against them. In view of this circumstance, the application is filed within a period of limitation. As to contention of charging exorbitant interest on the loan amounts, defendants did not lead any evidence which presumes that there is no resistance on this count by the defendants.

¶130

On going through the statement of account of both the loan accounts, it shows that it is in violation to the RBI guidelines and interest and charges, which are not recovered, are not reversed and also the interest/charges are being regularly debited. These statements of accounts being not in conformity with the RBI guidelines, cannot be relied upon. Tribunal finds as on 31/03/2019 amount of Rs. 35,69,737.13 ps was due in Term loan and Rs. 21,63,720.41 ps. in cash credit account are found due and payable, of which total comes to Rs. 57,33,457.54 ps (Rs. fifty seven lakhs thirty three thousand four hundred fifty seven and ps. fifty four

(OA No.220 /2022)

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[PJM]

only), which amount is due and payable by the defendants as on 31/03/2019.

¶135

Based on the pleadings, claim affidavit, original documents, oral submissions by the learned counsel of the applicant bank, the applicant bank has corroborated and proved its claim as mentioned in the Original Application to the extent of Rs. 57,33,457.54 ps. (Rs. fifty seven lakhs thirty three thousand four hundred fifty seven and ps. fifty four only) as on 31/03/2019.

¶136

The applicant has made out the case of creation of charge over the immovable property, described in paragraph No. 5.8 of Original Application, as per Registered Mortgage deed dated 08/10/2012.

¶137

Upon careful scrutiny and examination of Original Application, analyzing the evidence and giving due weightage to the documentary evidence adduced by applicant, which has gone unchallenged due to not adducing oral or documentary evidence by the defendants, I am of the view that there is no reason to disbelieve the claim made by applicant bank only to the extent of Rs. 57,33,457.54 ps. (Rs.

(OA No.220 /2022)

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[PJM]

fifty seven lakhs thirty three thousand four hundred fifty seven and ps. fifty four only).

¶142

In view of the observations made hereinabove, the Original Application filed by the applicant-bank deserves to be granted only to the extent of Rs. 57,33,457.54 ps. (Rs. fifty seven lakhs thirty three thousand four hundred fifty seven and ps. fifty four only). Further, due to drought situation in the area and Covid Pandemic-19, I have to grant reasonable interest. Hence, I pass the following order:-

¶143

O R D E R

¶144

(A) Original Application No. 220 of 2022 is partly allowed with costs, only to the extent of Rs. 57,33,457.54 ps. (Rs. fifty seven lakhs thirty three thousand four hundred fifty seven and ps. fifty four only).

¶145

(B) Defendants No. 1 to 3 are ordered and directed to pay to the applicant-bank either jointly or severally the aggregate sum of Rs. 57,33,457.54 ps. (Rs. fifty seven lakhs thirty three thousand four hundred fifty seven and ps. fifty four only) with pendent lite and future interest @ 10% per annum simple from 1^st

(OA No.220 /2022)

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[PJM]

April 2019 till payment/realisation.

¶150

¶151

respect of following property :

¶152

Item No.	Property No.	Area H.R.	Location	Boundaries:
1	Property No. 1726, plot no. 6 from Gat No. 104, 105, 106	475.35 sq.mtrs	Balsond Tal. & Dist. Hingoli	E: plot no.7 W:Akola-Hingoli roa S: road N: plot no.5
2	Block no.8, property no.7 on plot no.6 from Gat no. 84	13.94 sq.mtrs	R.K. big bazaar, Ramkrishna nagar, Balsond Dist. Hingoli	E: block no.9 W:block no.7 S:block no. 17 N:passage & road
3	Survey No. 7	1H.10R	Limbala (Pw)Tal. & Dist. Hingoli	E:Namdeo Lodba W:Ragho Ramji S:Pandita & Mohan N:Ashok Namaji
4	Sur.no.9/3	1H.54.5R	Limbala (pw) Tal. & Dist. Hingoli	E: Laxman & Maroti W:village boundary S:Maroti & Hari N:Sanjay & Bharat
5	Property No. 160/4	109.20 sq.mtrs	Balsond Tal. & Dist. Hingoli	E: plot no.5 W:plot o.3 S: road N: plot no.6
6	Property no. 161 on plot no.5	125.40 sq.mtrs	Balsond	E:road W:plot no.4 S:road N:plot no.6
7	Property no.15 on plot no.53 from Gat no. 104,105, 106	150 sq.mtrs	Balsond	E:plot no.55 W: road S:plot no.54 N: plot no.52
8	Property no. 681 from Gat no. 11	1260 sq.ft	Bhandegaon Tal. & dist. Hingoli	E: survey no.11 W:open space S: road N:Datta Ramkishan

(OA No.220 /2022)

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[PJM]

9 Property	no.	E: Gitabai
719 from	Gat	W: Parmeshwar
no.11		S:Gawthan
		N:Dattarao

¶157

i.e. all the parts and parcels of the Above property along with all furniture, fixtures and things attached therewith, and, more particularly, described in paragraph 5.8 of the Original Application.

¶158

(D) The above property be attached and sold in execution.

¶159

(E) Issue Recovery Certificate accordingly.

¶160

(F) The Registrar is directed to send the copies of the Judgment and Recovery Certificate to the applicant and defendants.

¶161

(Vimal Gupta) PRESIDING OFFICER, Aurangabad, DEBTS RECOVERY TRIBUNAL, Date: 07/10/2023 Aurangabad

¶162

Uploaded on official website on : 20/10/2023.

¶163

(OA No.220 /2022)

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¶165

[PJM]

Union Bank of India v. M/S Yashoda Poultry Farm

Case brief

What is this about?

What did the court decide?

Union Bank of India v. M/S Yashoda Poultry Farm

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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