Allowed

Bank of India v. Mr Deepak Uttam Naik and Ors.

DRT26 Oct 2023OA/80/2023

Case brief

AI extract

What is this about?

The Tribunal allowed the banks Original Application for recovery of outstanding dues of Rs.58.77 lakhs with interest. The principal borrower and the legal heirs of the deceased co-borrower were directed to pay within 60 days, failing which the amount would be recovered from the sale of mortgaged property and other assets.

What did the court decide?

Direct defendants to pay Rs.58,77,022.37 with interest within 60 days or face recovery from sale of mortgaged property and other assets via Recovery Officer.

Bank of India versus Mr Deepak Uttam Naik and Ors. — Contract and Commercial Disputes | DRT (2023)

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O. A. NO. 80 of 2023

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Decided on: 26.10.2023

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Registered on: 17.03.2023

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IN THE DEBT RECOVERY TRIBUNAL-I AT MUMBAI ORIGINAL APPLICATION NO. 80 of 2023

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BANK OF INDIA, A body corporate ) Constituted under the Banking companies ) (Acquisition Transfer of Undertakings) Act ) V of 1970, having its head office at “Star ) House”, C-5, “G” Block, Bandra-Kurla ) Complex, Bandra (East), Mumbai-400 051, ) and having its one of the branches situated ) at: Bandeshwar P. Box No. 5, Near Municipal) Garden, Mapuca, Bardez, Goa- 403507, known) as Mapuca Branch” through its constituted ) Attorney Holder/Chef Manager (Law) ) Mr. Harikumar S. ) …APPLICANT

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VERSUS

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MR. DEEPAK UTTAM NAIK ) Principal Borrower/Legal Heir of Late ) Smt. Shilpa Deepak Naik, ) An adult, Indian inhabitant of Goa, ) having his address at: House No. 73/3, ) Shree Dev Rashtroli Gaonkar Waddo, ) Camurlim Bardez North Goa - 403 507; )

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O. A. NO. 80 of 2023

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And having his another address at: ) Flat No. AG/1, House No. 2/155/U1, ) Building A, “Orchid Green Apartment”) Dangui Colony, Mapusa, Bardez North) Goa 403 507. ) 2. MR. SUBHAM DEEPAK NAIK ) Son/Legal Heir of Late Smt. Shilpa ) Deepak Naik an adult, inhabitant of ) Goa, having his Address at: Housing ) No. 73/3, Shree Dev Rashtroli Gaonkar) Waddo, Camurlim Bardez, North Goa ) 403 507; ) And having his another address at: ) Flat No. AG/1, House No. 2/155/U1, ) Building A, “Orchid Green Apartment”) Dangui Colony, Mapusa, Bardez North) Goa- 403 507 ) 3. MISS. ISHA DEEPAK NAIK, ) Daughter (Minor) Legal Heir of Late ) Smt. Shilpa Deepak Naik, if Minor ) through her father and local Guardian ) Mr. Deepak Uttam Naik i.e. Defendant ) No.1 hereinabove; )

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O. A. NO. 80 of 2023

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Indian inhabitant of Goa, having her ) Address at: Housing No. 73/3, Shree ) Dev Rashtroli Gaonkar Waddo, ) Camurlim Bardez, North Goa - 403 507 ) And having his another address at: ) Flat No. AG/1, House No. 2/155/U1, ) Building A, “Orchid Green Apartment”) Dangui Colony, Mapusa, Bardez North) Goa- 403 507. ) ...DEFENDANTS

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________________________________________________________________ Counsel for the Applicant : Advocate O.A. Das. Counsel for the Defendants : Ex-parte

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J U D G M E N T

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The Original Application has been filed by the Applicant for recovery Rs.58,77,022.37/- (Rupees Fifty Eight Lakh Seventy Seven Thousand Twenty Two and paisa Thirty Seven only) with further interest @10.30% p.a. under Term Loan and interest @9.25% p.a. under Vehicle Loan plus penal interest @2% p.a. being the balance outstanding amount as on 30.10.2022 with monthly rests till final payment and realization.

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Facts as succinctly set out in the OA are that the Defendant No.1 is Principal Borrower and late Smt. Shilpa Deepak Naik was Co Borrower doing business of Transport and Wine Store, Defendant

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O. A. NO. 80 of 2023

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No. 1 to 3 are the legal heirs and representatives of late Smt. Shilpa Deepak Nair who was Co-borrower.

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It is stated that in or about May, 2014 Defendant No. 1 and late Smt. Shilpa Deepak Naik approached the Applicant with an application dated 13.02.2014 and requested for Term Loan facility of Rs. 8 Lakhs. Pursuant to the said request, the Applicant sanctioned the said term loan facility of Rs. 8 Lakhs vide its sanction letter dated 17.05.2014. The said loan was to be repaid in 144 EMIs of Rs.10,363/- each month commencing from one month after first disbursement, Defendant No. 1 and late Smt. Shilpa Deepak Naik agreed to pay the (presently) interest @ 11.70% (floating) interest rest subject to change from time to time.

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In consideration of sanction the said term loan facility, the Defendant No. 1 and late Smt. Shilpa Deepak Naik executed the following loaning and security documents on 15.02.2014:

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a. Demand Promissory Note b. Bearer letter, Installment Letter and Authority letter c. Non Relation with any director of bank

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d. Affidavit Cum Undertaking

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e. Letter of Bank for disbursement of loan amount

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f. Multipurpose documents

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g. Term Loan agreement

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It is further stated that in or about February 2016, Defendant No. 1 and late Smt. Shilpa Deepak Naik again approached Applicant

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O. A. NO. 80 of 2023

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with an application dated 24.02.2016 and requested for term loan facility of Rs. 32 Lakhs. The Applicant again considered the said request and vide sanction letter dated 26.02.2016, sanctioned the Term Loan of Rs.32 lakhs. The said loan is to be repayable in 143 months EMIs of Rs. 40,629/- each per month commencing from one month after first disbursement, Defendant No. 1 and late Smt. Shilpa Deepak Naik agreed to pay the (presently) interest @ 11.20% (floating) interest rest subject to change from time to time.

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In consideration of sanction the said loan, the Defendant No. 1 and late Smt. Shilpa Deepak Naik executed the following loaning and security documents on 26.02.2016:

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a. Demand Promissory Note

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b. Bearer letter, Installment Letter and Authority letter

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c. Non Relation with any director of bank

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d. Affidavit Cum Undertaking

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e. Multipurpose documents

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f. Term Loan agreement

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In order to secure the above term loan facility, Defendant No. 1 and late Smt. Shilpa Deepak Naik deposited title documents in respect of their property viz. House No. 40, Gaonkar Waddo, Carmulim Village – Kamuli, Mapusa, Bardez, North Goa – 403 507, Survey No. 95/6 (for short “the said property”) standing in the name of Mr. Deepak Uttam Naik i.e. Defendant No. 1 and late Smt. Shilpa

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O. A. NO. 80 of 2023

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Deepak Naik as a collateral security, with an intention to create equitable mortgage in favour of the Applicant.

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It is further stated that the said property was under dispute before the Ld. Senior Civil Judge, Mapusa in Regular Suit No. 141 of 2014/B in respect of the ownership right of the said property. After the hearing the parties and verification of the title deed and other documents the Ld. Court have decreed the said suit and declared that the Defendant No.1 is the actual owner of the said property.

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It is stated that in or about March, 2016 Defendant No. 1 and late Smt. Shilpa Deepak Naik approached the Applicant and requested for Vehicle Loan of Rs. 11,54,000/- for purchase of New Four Wheeler “Honda, City VXCVT2015”. Pursuant to the said request, the Applicant sanctioned the Vehicle Loan of Rs. 11,54,000/- vide its sanction letter dated 08.03.2016. The said loan is to be repayable in 83 EMIs of Rs.19,407/- each commencing from one month after first disbursement, Defendant No. 1 and late Smt. Shilpa Deepak Naik agreed to pay the (presently) interest @ 10.15% (floating) interest rest subject to change from time to time.

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In consideration of sanction the said Vehicle loan, the Defendant No. 1 and late Smt. Shilpa Deepak Naik executed the following loaning and security documents on 08.03.2016

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a. Demand Promissory Note

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b. Bearer letter, Installment Letter and Authority letter c. Non Relation with any director of bank

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d. Multipurpose documents

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O. A. NO. 80 of 2023

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e. Agreement of Hypothecation for consumer loan in respect of the vehicle

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It is stated that Defendant No. 1 informed the Applicant that the Co-borrower late Smt. Shilpa Deepak Naik has expired on 04.10.2017 and have submitted Death Certificate. Defendant No. 1 further informed Applicant states that Defendant No. 1 to 3 the Legal heirs and representatives of late Smt. Shilpa Deepak Naik and have agreed and undertake to pay the outstanding dues of the late Smt. Shilpa Deepak Naik.

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However, the Defendant No.1 failed and neglected to regularize the accounts and service interest in the said Accounts i.e. Term Loan Accounts and Vehicle Loan thus, the accounts were declared as NPA on 31.12.2017.

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It is also stated that the Defendants have executed and delivered the Acknowledgment of Debt/Securities dated 17.05.2017 executed by the Defendant No.1 and Acknowledgment of Debt or Securities by Heirs/LRs of deceased borrower dated 24.12.2019 executed by the Defendant No.1 to 3 for Term Loan-I; Acknowledgment of Debts or Securities by Heirs/LRs of a deceased borrower dated 22.02.2019 and 24.12.2019 executed by Defendants for Term Loan-II; and Acknowledgment of Debt/Securities dated 19.11.2018 executed by Defendant No.1 and Acknowledgment of Debt Securities by Heirs/LRs of deceased Borrower dated 24.12.2019 executed by Defendant No.1 to 3 for Vehicle Loan, from time to time in favour of the Applicant.

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O. A. NO. 80 of 2023

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It is further stated that thereafter, the Applicant initiated action under the SARFAESI Act, 2002 against the mortgaged property which was challenged by the Defendant No.1 in SA No.119/2022. After completing the arguments, the Defendant No.1 suo moto handed over the physical possession of the said property to the Applicant through the representative of Ld. CMM Court.

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It is further stated that the Defendant No.1 as borrower is liable to pay the outstanding dues with interest to the Applicant and Defendant No.1 to 3 being legal heirs and representatives of Late Smt. Shilpa Deepak Naik, are bound and liable to pay the outstanding dues out of the estate derived from the Late Smt. Shilpa Deepak Naik. Since the Defendants failed and neglected to make the payment therefore, the Applicant through their Advocate’s Notice dated 12.09.2022 called upon the Defendants to pay the outstanding dues but they failed to pay the dues. Hence, the present OA has been filed.

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Notices were issued to the Defendants. Despite service no one appeared for the Defendants nor filed the WS thus, they were proceed ex-parte vide even order dated 26.10.2023.

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The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed through Constituted Power of Attorney and the Chief Manager, Kumar Sahjanand.

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O. A. NO. 80 of 2023

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I have heard the Ld. Counsel for the Applicant Bank and perused the record.

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The witness of the Applicant Bank has fully corroborated the averments made in the OA, even otherwise the whole case of the Applicant is based on documents and the witness has duly proved all these documents as against the defendants. In my view there is no question of disbelieving the evidence led by the Applicant Bank and the Applicant Bank has proved its case beyond reasonable doubt. The Defendant No.1 being a borrower is liable to pay the entire claim amount with interest to the Applicant. The liability of the Defendant No.2 & 3 shall limited to the estate derived from the deceased Shilpa Deepak Naik.

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In the light of above discussions, the Original Application deserves to be allowed against the Defendants.

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O R D E R

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(i) I allow the present OA and direct the Defendant No.1 to 3 to pay to the Applicant Bank, within a period of 60 days, a sum of Rs.58,77,022.37/- (Rupees Fifty Eight Lakh Seventy Seven Thousand Twenty Two and paisa Thirty Seven only) as on 30.10.2022 with further interest @10.30% p.a. under Term Loans and @9.25% p.a. under Vehicle Loan, with monthly rests and @2% p.a. penal interest till final payment and/or realization. It is made clear that the liability of the Defendant

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O. A. NO. 80 of 2023

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No.2 & 3 shall limited to the estate derived from deceased Shilpa Deepak Naik.

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(ii) Failing which the aforesaid amount shall be recovered from the sale of the mortgaged property as well as other personal moveable and immoveable assets of the Defendants.

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(iii) Defendants are hereby directed not to deal with their properties till further direction of Ld. Recovery Officer.

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(iv) Defendants shall also pay the cost and expenses of the OA.

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(v) Recovery Certificate be issued forthwith and be sent to the Recovery Officer of this Tribunal.

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Copy of this order be sent to the parties as per rules. File be consigned to record.

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Place: Mumbai. (Dr. Rekha G. Dhakar) Date : 26.10.2023 Presiding Officer, DRT-1, Mumbai

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SP/-

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Bank of India v. Mr Deepak Uttam Naik and Ors.

Case brief

What is this about?

What did the court decide?

Bank of India v. Mr Deepak Uttam Naik and Ors.

Case brief

What is this about?

What did the court decide?

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