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IN THE DEBT RECOVERY TRIBUNAL –I AT AHMEDABAD

ORIGINAL APPLICATION NO. 85 OF 2020

Applicant: Indian Bank

VERSUS

Defendant: M/s Sardha Polypack & Others

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

Navrangpura Branch, Eternia complex, Swastik society, Off C.G.

Road, Navaranpura, Ahmedabad 380009.

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

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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

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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 29/09/2017

signed and executed by
defendant nos.1 & 2.

3. Median term loan 29/09/2017

agreement signed and
executed by defendant nos.
1 & 2.

4. Disposal of proceeds letter 29/09/2017

signed and executed by
defendants nos. 1 & 2.

5. Declaration by the sole 29/09/2017

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proprietor signed and

executed by defendant no.1

6 Declaration by the borrower 29/09/2017

signed and executed by
defendant no.1

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 / Outstanding Unapplied/ Total (Rs.)

Limit Uncharged/
(Rs.) un-
(Rs.) recovered
Interest
up to
29/09/2017
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(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

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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

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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.

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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

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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

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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

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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

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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.
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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 Exh.
Nos. 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