R.A:90/2009
1. This Appeal impugns the order dated 9.7.2009 passed by the Learned Presiding Officer, DRT, Bangalore
2. The case of the Appellant may be stated as follows:
The first respondent is the Proprietor of M/s Pragati Diagnostics & Pharma and the brother-in-law of the 2nd respondent. The third and fourth respondents are the children of the 2nd respondent. The first respondent availed a Term Loan of Rs.49 lakhs for purchase of machinery and equipments for its laboratory and Working Capital Limit of Rs.10 lakhs and the 2nd, 3rd and 4th respondents stood as guarantors for repayment of the said loan. The above loan is secured by the equitable mortgage of the house property owned by the 2nd, 3rd and 4threspondents and the hypothecation of the equipments in the first respondent’s clinic. Further the 2nd, 3rd and 4th respondents also availed a housing loan of Rs.8 lakhs for which the first respondent stood as a guarantor. This loan is also secured by the house property of 2nd, 3rd and 4threspondents. The respondents defaulted in the repayment and therefore the account was classified as a ‘NPA’ and the respondent bank issued the notice under Section 13(2) of the SARFAESI Act on 14.11.2007. The respondent bank also filed OA No.280/2008 on the file of DRT Bangalore for recovery of a sum of Rs.87,63,331/- alongwith future interest and costs. The first respondent remained ex-parte in the OA and the Respondent Nos. 2, 3 and 4 appeared and denied the execution of the guarantee and the extension of the mortgage in favour of the respondent bank. The respondent bank filed proof affidavit with 48 documents and the respondents filed counter proof affidavit with 15 documents. The Tribunal below by its order dated 9.7.2009 allowed the OA but held that Respondent Nos. 2, 3 and 4 are alone liable for the repayment of the Housing Loan of Rs.8 lakhs availed by them and that they are not liable for the loan availed by the 1strespondent and also dismissed the claim against the property belonging to Respondent Nos. 2, 3 and 4. Aggrieved by the order of the Ld. Presiding Officer of the Tribunal below dismissing the claim in the OA against Respondent Nos. 2, 3 and 4 and their property in respect of the Term Loan and Working Capital Limit the present appeal has been filed by the appellant bank.
3. The Ld. Counsel appearing on behalf of the appellant bank stated that the Ld. Presiding Officer having found that all the defendants in the OA are liable for the credit facility availed by 1st respondent ought to have allowed the OA against all the respondents. The Ld. Counsel stated that the order of the Ld. Presiding Officer is perverse and therefore the impugned order is liable to be set aside.
4. First respondent is called absent in this appeal.
5. The Ld. Counsel appearing on behalf of Respondent No.2, 3 and 4 stated that the order of the Ld. Presiding Officer is proper and warrants no interference.
6. Heard the Ld. Counsel for the appellant bank and the Ld. Counsel for the Respondent Nos. 2, 3 and 4.
7. It is seen that the Ld. Presiding Officer has arrived at the conclusion that the version of the Defendant Nos. 2, 3 and 4 seem to be capable of being believed and that their version also seems to be acceptable and believed when compared to the version of the applicant bank. It is seen that he has arrived at this conclusion on his own assumptions without any material therefor. A perusal of the affidavit of AW-1 and AW-2 clearly reveals that the 45 exhibits filed by them clearly establish the liability of the defendants. It is seen that the Ld. Presiding Officer has brushed aside all the documents of the applicant bank and has proceeded to allow the OA against the Defendant Nos. 2, 3 and 4 only for the housing loan whereas the documents prove that they are also liable for the other loans too. The Ld. Presiding Officer without any reason has stated that the version of Defendant Nos. 2, 3 and 4 has to be given more weight than the version of the applicant bank. In fact the version of the applicant bank is fortified by the various documents which clearly point out the liability of all the defendants and in the circumstances the applicant bank’s case has to be accepted.
8. Therefore from the fact that the Ld. Presiding Officer has proceeded to pass final orders in the OA only on the ground of his opinion that the version of the Defendant Nos. 2, 3 and 4 is capable of being believed, from the fact that that he has arrived at the decision that the case of the Defendant Nos. 2, 3 and 4 have to be given more weight when compared to the case of the applicant bank only because he has felt so, from the fact that the Ld. Presiding Officer has not properly appreciated the documents filed by the bank, from the fact that all the documents filed by the bank clearly prove the liability of the defendants for all the loans, from the fact that none of the documents help the case of the Defendant Nos. 2, 3 and 4 this Tribunal is driven to conclude that the finding of the Ld. Presiding Officer that the Defendant Nos. 2, 3 and 4 are only liable for Rs.9,11,744/- has to be set aside and proceed to hold that all the defendants are jointly and severally liable for the claim made in the OA.
9. In the result the appeal is allowed.
10. The Ld. Presiding Officer, DRT Bangalore is directed to recall the Recovery Certificate issued already in this case and issue a fresh Recovery Certificate against all the defendants holding them jointly and severally liable for all the claims made in the OA.
This order was issued byTHE HON'BLE CHAIRPERSON OF DRAT CHENNAI ON 04/07/2012
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