IN THE DEBT RECOVERY TRIBUNAL –I AT AHMEDABAD

ORIGINAL APPLICATION NO. 788 OF 2019

Applicant: Indian Bank

VERSUS
Defendant: Nileshbhai Umedbhai Shah & Anr.

AFFIDAVIT IN PROOF

I …………………………., Chief Manager being the authorized officer of the

applicant Bank, Hindu, Adult, Occupation: Service, do hereby solemnly affirm
and state on oath and file this affidavit in proof as under: -

1. I say that, I am serving with Indian Bank since last several years and at
present working as Chief Manager of the applicant Bank at its Vastrapur Branch,
Shop no.2 Ground Floor, Abhishree Adroit,Near Swaminarayan Temple,Judges
Bungalow road,Vastrapur,Ahmedabad 380052
2. I say that after taking over the charge, I have perused the transaction
pertaining to the present recovery application and have also perused the
contents of original recovery application, the securities documents executed by
the defendant, borrower, pertaining to the credit facility sanctioned to the
defendant and have also perused the said documents along with original
documents thereof. I have also perused the financial data, project reports and
other particulars provided by the defendants and the correspondence exchanged
between the applicant bank and the said defendants. Therefore, I am conversant
with the transactions of the said account and have acquired the personal
knowledge thereof. Therefore, I am competent and able to file this affidavit from
the facts, transactions and other particulars available with the applicant Bank.
3. I say that the applicant Bank has filed the above Application No.85 of 2020 on
26/12/2019 in the Debt Recovery Tribunal at Ahmedabad for obtaining the
recovery certificate for a sum of Rs.31,52,587/-( Rupees Thirty one lacs fifty two
thousand five hundred eighty seven only) with future interest @12.45% p.a. with
monthly rests on the suit amount from 01/072019 to 30/11/2019 till the date of
realization and costs in respect of the facilities granted to the defendant .
4. I say that at the time of filing of this recovery application, the applicant Bank
has also produced various documents vide pages 23-69 in respect of the credit
facility sanctioned to the defendant and also prayed inter-alia the ad-interim
injunction/reliefs as prayed in Paras 6 and 7. I say that this Hon’ble Tribunal was
pleased to issue the show cause notice on ………….. in respect of the said
interim reliefs and made it returnable on ……………...
5. I say that at the outset, it is necessary to narrate few facts related to the
present case, which are detailed and to explain the documentary evidence
produced with the list hereafter.
6. It is submitted that M/S. Sardha Polypack, A proprietorship concern through
Sole Proprietor, ________________________has been sued as principal
borrower.
7. It is submitted that at the material point of time, the defendants were engaged
in the manufacturing and trading of cylinder liners and sleeve. Hence,
Defendants have approached the Applicant by way of application and interalia
requested to grant credit facility for her business activities. After scrutinizing the
application / proposal submitted by defendants, the Applicant has lent and
advanced the Cash Credit Facility, limit of Rs.15.00 Lacs under CGTMSE to the
defendants.
8. It is submitted that, defendants have approached the applicant bank with a
loan application dated 29/09/2017 and interalia mentioned all the particulars of
firm as well as proprietor and requested to grant Cash Credit facility for an
amount of Rs.44.50 Lacs. Therefore, after scrutinizing Loan application
submitted by defendants, applicant has sanctioned Cash Credit facility limit of
Rs.44.50 Lacs against hypothecation of Goods & Debts, stocks, Material and
movable assets etc. by way of sanction advice/letter dated 29/09/2017.
9. That following security documents have been signed, executed and
delivered by the Defendants in the Year 2017 respectively in consideration of the
facility sanctioned.
SECURITY DOCUMENTS FOR CASH CREDIT FACILITY, LIMIT OF RS. 44.50
LACS:-
No. Details Date
1. Sanction letter of term loan under CGTM scheme facility for Rs.44.50 Lacs
along with terms and conditions duly signed and executes by the defendant nos.
1 & 2.
2. DP Note for Rs.44.50 Lacs signed and executed by defendant nos.1 & 2.
29/09/2017
3. Median term loan agreement signed and executed by defendant nos. 1 &
2. 29/09/2017
4. Disposal of proceeds letter signed and executed by defendants nos. 1 & 2.
29/09/2017
5. Declaration by the sole proprietor signed and executed by defendant no.1
29/09/2017
6 Declaration by the borrower signed and executed by defendant no.1
29/09/2017

10. It is submitted that, Defendants have accepted the terms and conditions of
the Sanction advice/letter dated 29/09/2017 and accordingly, they have signed,
executed and delivered various security documents on or about 29/09/2017 for
the Cash Credit Facility of Rs.59.83 Lacs in favour of the Applicant Bank. The
said documents were executed for valuable and valid consideration and after
fully understanding and admitting the contents thereof in favour of the Applicant
bank as stated above.
11. It is submitted that, Defendants have confirmed and acknowledged their
indebtedness to the applicant bank and also confirmed rate of interest applicable
to the account.
12. The entire amount due in the said Credit facility constitutes a single “Debt”
under the Recovery of Debts due to the Banks and Financial Institutions Act,
1993 and transaction constituted a single cause of action.
13. The Defendants have executed various security documents as mentioned
above and also in Para No. 10 of this Application, to secure such facility and
Applicant Bank is relying on the same and is entitled to recover bank dues as
stated under :-
Facility / Limit
(Rs.) Outstanding
(Rs.) Unapplied/ Uncharged/ un-recovered Interest
up to
29/09/2017 (Rs.) Total (Rs.)
Cash Credit
Rs.44.50 Lacs
Total …. 31,52,587/-

Rs.31,52,587 [Rupees Thirty one Lacs fifty two thousand five hundred
eighty seven only)
14. As per the terms and conditions of the aforesaid documents, the rate of
interest is variable and it is payable at such rate as may from time to time fixed
by the Applicant Bank as the defendant have agreed that the applicable rate of
interest is always reset at the sole and absolute discretion of the bank on annual
basis. The present rate of interest in respect of said Cash Credit Facility is @
12.45% per annum compoundable with monthly rests and 2% penal interest per
annum.
15. The Applicant submits that as per the provision of the Banking Regulation
Act, 1949, said transactions are commercial transactions, therefore, interest at
the contractual rate subject to the revision from time to time is payable.
16. As per hypothecation Deed of Goods & Debts (SD-06) dated 27/12/2019,
said Cash Credit limit is secured by Goods and Debts (the goods described in
general terms which expression sale include all raw materials, semi-finished and
finished goods, consumable stores and spares and movable property) etc. of the
Defendants. The said hypothecated Goods/assets are liable to be sold to recover
bank’s dues.
17. The Applicant further submits that, Defendants have also hypothecated its
Book-debts to the Applicant Bank. Therefore, Defendants have no right to
recover their Book-debts from their debtors. Applicant has every right to recover
said debts from the debtors of the Defendants.
18. Hence, it is necessary to disclose full details and particulars of all the book-
debts by the Defendants including complete names and addresses of the debtors
and amount outstanding.
19. Hence, Applicant has right to take possession of the hypothecated
Goods/assets, retain the same and right to sell the same and recover the Book-
Debts from the debtors of the defendants as per said security document. Details
of the hypothecated properties are as stated in Schedule - A of this application.
20. Moreover, after the sanction of the Cash Credit Facility barring payment of
few amounts and/or service of interest for some time, the Defendants remained
negligent and careless in timely serving the interest, hence, poor turnover in the
account, not only that, defendants have failed to submit stock statement/renewal
papers, during inspection visit no goods was found for verification, resultantly, the
Defendants stopped giving inspection of the hypothecated goods/assets to the
applicant. That despite the specific request from time to time, to pay interest,
overdue to the Defendants, the same was not complied. Resultantly, the account
of the Defendants was classified as Non-Performing Assets (NPA) on 30/06/2015
and the applicant stopped debiting interest in to the account and separate
interest account has been opened.
21. Since Defendants committed breaches of the agreed terms and conditions
of advances, the Applicant left without an alternative but to recall the dues,
Hence Applicant has issued final Legal/Re-call Notice through advocate dated
……………. and interalia called upon the Defendants to repay the amount due
together with further interest etc. but Defendants failed to comply the requirement
of the said Legal/Recall Notice.
22. That despite the Recall/Legal notice, when, it remained un-complied and
when the defendants willfully neglected payment of dues, the applicant left
without an option but to file the present Application for recovery of the said dues
from Defendants. Hence, this Original Application.
23. The cause of action arose on or about ………., when defendants have
approached the applicant by way of an application for credit facility and
accordingly bank has sanctioned Cash Credit Facility to the defendants. On
……………, when defendants have signed, executed and delivered various
security documents for availing Cash Credit Facility. On ……………, when the
account was classified as N.P.A. On ……………., when the due amount was
recalled by Recall/Legal Notice through advocate and Defendants have failed to
comply with requirements of the said notice.
24. I say that Copy of Application Form for CGTMSE facility is at page 23 to
30.
25. I say that Copy of Sanction Letter of term loan under CGTMSE scheme
facility for Rs.44.50 Lacs along with terms and conditions duly signed and
executed by the defendants nos. 1 & 2 is at pages 31 to 35.
26. I say that Copy of Demand promissory Note dated 29/09/2017 is at page
36.
27. I say that Medium term loan agreement signed and executed by defendant
nos.1 & 2 dated 29/09/2017 is at pages 37 to 45.
28. I say that Copy of Disposal of proceed signed and executed by defendants
nos. 1 & 2 dated 29/09/2017 is at pages 46
29. I say that Copy of Declaration by the sole proprietor signed and executed
by defendant no.1 dated 29/09/2017 is at pages 47.
30. I say that Declaration by the borrower sihned and executed by defendant
no.1 dated 29/09/2017 is at pages 48 to 49.
31. I say that Copy of Legal Notice with Ad slips is at pages 50 to 58.
32. I say that Copy of Statement of Accounts is at pages 59 to 66.
33. I say that Copy of Interest Calculation Sheet is at page 67.
34. I say that Copy of Certified abstract showing Outstanding balance as per
Ledger of Cash Credit Loan a/c as well as Term Loan a/c of Def. no.1 along with
certificate under Banker’s Books Evidence Act is at page 68.
35. I say that Copy if Certificates showing and penal interest due and payable
but not debited to the Cash Credit Loan A/c. as well as Term Loan A/c Def.No.1
is at page 69.
36. I say that all above documents are duly signed, executed and delivered by
the defendants. I say that the signatures appeared on the aforesaid documents
are the signatures of the aforesaid defendants and they have signed before the
officers of the Bank. I further say that, the signatures are tallied with the
signatures available with the record of the Bank. Thus, the said documents were
executed in respect of the financial assistance sanctioned to the defendant and
the contents of the documents were explained and were understood by the
defendants and thereafter, the same were signed, executed and delivered and
availed the said credit facilities from time to time.
37. I say that along with the recovery application; the applicant Bank has also
produced the documents in respect of the mortgage of the properties by way of
Memorandum of deposit of title deeds.
38. I further say that, since the defendants have failed to repay the dues and
failed to observe the terms and conditions and financial disciplines, the applicant
Bank was compelled to issue legal notice dated………………., which is produced
at pages 50 to 58. I say that, the same is duly signed by the Advocate of the
Bank and I know his signature. The contents thereof are correct and true and the
same was issued by the Advocate as per our instructions. I say that, apart from
all the above facts, the defendants failed to repay the dues. Hence, the present
recovery application was filed.
39. I say that the statement of accounts produced is the original abstract of the
ledger and duly certified under the Bankers Books Evidence Act. Therefore, the
applicant Bank is entitled for the decree/recovery certificate as prayed for along
with the current and running interest with an authority to recover the decreetal
dues from the properties mortgaged as well as the other properties belonging to
the defendant more particularly, described in the schedule.
40. I say that the document produced at pages 59-66 is the statement of
Accounts with regard to the credit facility sanctioned to defendant. I says that the
said statements of accounts are the certified true copy of the entries of the Book
of Accounts maintained by the applicant Bank in ordinary course of business. I
also say that the contents of the documents are correct and true and the same
are certified under the Bankers Books Evidence Act. I say that as per the
statement of account a sum of Rs.31,52,587/- is due and payable by the
defendant.
41. I submit that interim relief granted ex parte on dated 03/09/2015 by this
Hon’ble Tribunal in favour of the applicant have not been reversed and or
modified till date and therefore, the same are required be confirming and making
absolute by the Hon’ble Tribunal.
42. I submit that applicant had successfully proved suit claim amount claimed
in the O.A. by way of documentary evidence and the same are true, correct,
legal, valid, reliable and binding to all the defendants. I humbly pray to the
Hon’ble Tribunal to allow present O.A. in favour of the applicant and against the
defendant and be pleased to grant all reliefs as prayed for in para- 6 (A to D)
7(D) (i to vii) to this O.A. and I further submit that interim reliefs granted by this
Hon’ble Tribunal over the hypothecated properties of defendant may be made
absolute in favour of the applicant and against the defendant till entire recovery
of dues by the applicant.

43. I say that, in view of above facts and circumstances all the documents are
proved beyond doubt by the applicant by filing this affidavit. I say that, the
defendant had also availed the said facilities and enjoyed and utilized the same
from time to time. The defendant though appeared failed to file their reply and/or
any counter affidavit or written statement against the recovery application. Under
the circumstances, the recovery application and the affidavit filed by the applicant
Bank in support of the contentions are remained unchallenging and undisputed.
Therefore, the decree/recovery certificate for the amount as prayed for in Para 6
of the Recovery Application for a total amount of Rs.31,52,587/-( Thirty One Lacs
Fifty two thousand five hundred eighty seven only) against the Defendant and the
same be forwarded to Recovery Officer with a direction to execute and enforce
the same. Also the Hon’ble Tribunal may be pleased to award future interest
@12.45% p.a. with monthly rests on the suit amount from ……………… till the
date of realization.
44. That this Hon’ble Tribunal may be pleased to forward the Recovery
Certificate so issued to the Recovery Officer, DRT-I, with the direction to recover
the certified dues by realization of mortgaged immovable properties belonging to
the Defendant and personal immovable Properties belonging to the Defendant till
realization and costs in respect of the cash credit facility granted to the defendant
with further interest at contractual rate with a liberty to recover the said amount
from the mortgaged properties as well as other movable and immovable
properties belonging to the defendants in the interest of justice. I further say that
the contents of the notice, recovery application and the affidavit filed are correct
and true. The applicant Bank has also complied with all the orders passed by the
Hon’ble Tribunal. The defendant is also restrained from transferring and/or
assigning the properties. I further say that, the defendant is willful defaulters.
Therefore, the recovery certificate is required to be granted at the earliest.
45. I say that in view of the above facts and circumstances, the recovery
certificate may be granted in favour of the applicant Bank and the same may be
sent to the Recovery Officer with a direction to attach all the properties as prayed
under Section 19(7) of the Recovery and Debts due to Banks and Financial
Institutes Act, 1993 for the recovery of the dues.
What is stated hereinabove is true to the best of my knowledge, information and
belief and I believe the same to be true.
SOLEMNLY AFFIRMED AT AHMEDABAD ON THIS ….th DAY OF April, 2022.
Date: /04/2022
Place: Ahmedabad _______________

(D E P O N E N T)

VERIFICATION CUM AFFIDAVIT

I, ………………………………… aged adult occupation : being Authorized Officer
of applicant bank, residing at Ahmedabad to hereby solemnly affirmed and
declared on oath that whatever stated hereinabove are true and correct to the
best of my knowledge, belief and information available and gathered from the
records, proceedings, documents and materials of the above case. I have not
suppressed any material facts.
Solemnly affirmed at Ahmedabad on this ____day of April, 2022.

___________________
Deponent.

IN THE DEBT RECOVERY TRIBUNAL-I AT AHMEDABAD

ORIGINAL APPLICATION NO. 85 OF 2020

In this matter, I ………………………………….., Hindu, Adult, Occupation Service

as Chief Manager, Navrangpura Branch, Ahmedabad, state as under:-
I tender in evidence of applicant bank, affidavit to prove the claim and security
documents vide Exh. Nos.__________________I also tender evidence for the
following documents;
LIST OF ENCLSOED DOCUMENTS
Sr. No. Particulars Date Page Nos. Exh. No.
1 Application form
2 Sanctioned advice/letter
3 Demand Promissory Note 29/09/2017
4 Recall/Legal Notice issued to the borrower through advocate
5 Certified Account Statements for Cash Credit facility along with certificate
under Bankers’ Books Evidence Act, 1891 __
6 Certificate of Uncharged Interest along with Table of Total Claim related to
account __

I identify the signature of ………………………………….., Chief Manager, Indian

Bank Navrangpura Branch, Ahmedabad on the documents. The aforesaid
documents are true copies of the record maintained with Branch. I have brought
original documents today in the Tribunal (original seen/verified and returned). I
have seen the same and be read in my evidence and I close my evidence.
Dated: /04/2022
_______________________ __________________
(Mr. ………………) (___________)
Presiding Officer
Indian Bank, Navrangpura Branch,A’ba DRT-I, Ahmedabad