Decided on August 19,2004



Pratibha Upasani, - (1.) THIS appeal is filed by the appellant/original applicant Syndicate Bank being aggrieved by the judgment and order dated 7th March, 2003 passed by the learned Presiding Officer of the DRT-II, Mumbai in Original Application No. 19/2001. By the impugned judgment and order, the learned Presiding Officer, though allowed the application with half costs against the defendant Nos. 1 and 2, he disallowed the Original Application against the defendant Nos. 3 and 4. The learned Presiding Officer ordered defendant Nos. 1 and 2 to jointly and severally pay to the applicant-Bank an amount of Rs. 17, 37, 820/-with interest at the rate of 17% per annum from the date of filing of Original Application till full realization. He also ordered defendent No. 1 to pay to the applicant Bank an amount of Rs. 39, 775/- with interest at the rate of 12% per annum with quarterly rests from the date of filing of Original Application till full realisation and also gave certain consequential declarations. The learned Presiding Officer however exonerated the defendant Nos 3 and 4. The applicant Bank is aggrieved by that particular order and their appeal, therefore, is limited to that extent.
(2.) Few facts, which are required to be stated are as follows: The Original Application was filed by the Bank against the defendants. The defendant No. 1 was the borrower and defendant Nos. 2 to 4 were sued in their capacity as guarantors. The applicant-Bank's case was that the defendant No. 1 had availed of term loan facility of Rs. 76, 000/- and C.C. limit of Rs. 18 lacs. On 23rd October, 1998, the defendant Nos. 1 and 4 executed demand promissory note for Rs. 18 lacs, hypothecation agreement, letter of undertaking to pay overdue interest as per RBI directions. The defendant Nos. 3 and 4 had executed guarantee agreement on the same date. Further security was given by way of mortgage by deposit of title deeds of industrial premises being Plot Nos. W-75(A) and W-75 (B) in Ambernath Industrial Area, Village Jambhivali. Ambernath, Tal, Ulhasnagar, Distt. Thane and other security documents were also executed. The applicant's case further is that the defendant No. 1 had availed of loan facility, but instalments of term loan were not fully paid. The defendants also did not pay the outstandings under overdraft despite repeated demands and demand notice. Hence, the Original Application came to be filed against them. The defendants appeared and filed common written statement in which number of contentions were taken.
(3.) THE learned Presiding Officer after hearing both the sides and after perusing the documents passed the impugned order, whereby though he allowed the claim of the Bank against the defendant Nos. 1 and 2 and disallowed against the defendant Nos. 3 and 4 and exonerated them from the liability as guarantors and in my view, there is no infirmity in the said order.;

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