O.A. No. 308 of 2001. Case: Central Bank of India Vs Birendra S. Kothari and Ors.. Mumbai Debt Recovery Tribunals

Case NumberO.A. No. 308 of 2001
CounselFor Appellant: Rishabh Shah, Adv., i/b., N.C. Dalal and Co. and For Respondents: G.R. Kinkhabwala, Adv., i/b., Mehta and Girdharilal, Advs. and Sharath Pai, Adv.
JudgesK.J. Paratwar, Presiding Officer
IssueBanking Law
CitationII (2006) BC 114
Judgement DateFebruary 06, 2006
CourtMumbai Debt Recovery Tribunals


K.J. Paratwar, Presiding officer

  1. This is a second round of the Original Application (O.A.) for recovery of following amounts:

    Rs. 11,75,261/- being dues under cash credit facility with interest thereon @19.75% p.a. and

    Rs. 1,56,537/- being dues under term loan facility with interest @19.25% p.a.

  2. The O.A was earlier allowed by me by judgment dated 28.2.2003. In the Miscellaneous Application (M.A.) No. 23 of 2003, the judgment (and recovery certificate issued pursuant thereto) was set aside by order dated 25.8.2003 as against defendant No. 3 subject to deposit of Rs. one lac. In other M.A. being No. 107 of 2003, the judgment (and recovery certificate issued pursuant thereto) was set aside by order dated 28.1.2004 on deposit by each of the applicant (defendant Nos. 1 and 2) of Rs. 50,000/-. The defendant Nos. 1 to 3 have complied with the conditions which is why afresh hearing in the O.A. took place.

  3. The defendant No. 1, carrying business in cupboards, trolleys, etc., issued as Borrower while defendant No. 2 is sued as guarantor. They are also sued as mortgagors. The defendant No. 3 is sued as purchaser of property equitably mortgaged by defendant No. 1 in order to secure the outstandings.

  4. In or about August 1991, the applicant sanctioned, by way of renewal, the defendant No. 1 cash credit facility of Rs. 4 lakh and term loan facility of Rs. 1 lakh. The security was continuation of equitable mortgage already created by defendant Nos. 1 and 2, by deposit of title deeds, way back in 1988 apart from personal guarantee by defendant No. 2. In lieu of the grant of the facilities, defendant No. 1 executed demand promissory note and other usual security documents. The defendant No. 2 gave letter of guarantee. On 26.8.1991, the defendant No. 1 inter alia acknowledge and confirmed balance of Rs. 5,52,772.30 under cash credit facility and Rs. 88,650.80 under term loan facility. The defendant No. 1 availed of the facilities and operated the account but not satisfactorily. He failed in clearing the outstandings despite repeated demands and legal notice. The defendant No. 2 also did not discharge his liability as guarantor. Therefore, this original application is filed.

  5. Through amendment in 1997, the applicant averred that it recently came across correspondence from defendant No. 2 informing that he had sold mortgaged flat to defendant No. 3 and that he had purchased new flat admeasuring 685 sq. ft. (described in Exh. A3) of which he deposited title deeds as security and thus created mortgage thereof. Relief with reference to the said mortgaged flat is sought.

  6. The defendant Nos. 1 and 2 in their common written statement at Exh. 51 have contended that defendant No. 1 does not understand English except signing and that defendant No. 2,78 years old lady, does not know any language except Gujarati. On this ground, and also by contending that signatures were taken on the blank printed forms, the security documents are said to be void. The plea of limitation is taken in omnibus manner. It is contended that defendant No. 1 had not given share...

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