CITIBANK N A Vs. BALLENA TRADING COMPANY PVT LTD
DEBTS RECOVERY APPELLATE TRIBUNAL
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(1.) A sum of Rs. 98,62,689.79 with interest @ 18% p.a. is sought to be recovered in this O.A. from defendant Nos. 1 to 9 by liquidating mortgaged property.
(2.) The defendant No 1 is sued as the Borrower Company. The defendant Nos. 2 to 9 are sued as guarantors. The defendant Nos. 5 and 9 are also sued as mortgagors of property called 'Gopal Niwas', situated at Vile Parle (West), Mumbai 400 056. The defendant Nos. 1 to 4 had hypothecated lease rentals of 'Gopal Niwas' and 'Akash Ganga' premises receivable from defendant No. 13.
The 'Bhakti Trust' (defendant Nos. 10 and 11 being its trustees) is owner of northern portion of 2nd floor of building 'Akash Ganga', situated at C.S. No. 686, Bhulabhai Desai Road. Mumbai 400026. Similarly, defendant No. 12 is owner of 3rd floor of said building. The defendant No. 13 is in possession as sub-tenant of the same. The defendant Nos. 10 to 12 are sued as they illegally terminated defendant Nos. 1 and 2's tenancy and deprived the Bank from the hypothecated lease rentals. The defendant No. 14 is sued since it has attached the lease rentals in respect of certain portion of 'Gopal Niwas' premises overlooking the Bank's superior' right as hypothecatee of the same. The reliefs in consonance with the Bank's right in the lease rentals are sought against them.
(3.) THE facts of the case are that in or about May 1995, the applicant granted to defendant No. 1 term loan of Rs. 56,49,000/- in lieu of which defendant No. 1 executed loan agreement which inter alia provided for repayment in 72 monthly instalments of Rs. 1,39,322/-. THE security was first charge over the lease rentals receivable by defendant Nos. 1 and 2 from defendant No. 13 in respect of northern portion of 2nd floor and 3rd floor respectively of building 'Akash Ganga' held by them as sub-lease from defendant Nos. 10 to 12. THE rentals receivable by defendant Nos. 2 and 4 (held by them as sub-lease from defendant Nos. 5 and 9) of 'Gopal Niwas' from defendant No. 13 were also hypothecated in the Bank's favour. THE deeds of hypothecation were accordingly executed by defendant Nos. 1 to 4. THE defendant Nos. 1 to 4 had given power of attorney empowering the applicant to directly recover from defendant No. 13. THEre was also equitable mortgage, by deposit of title deeds, by defendant Nos. 5 and 9 of their property namely 'Gopal Niwas'. THE defendant Nos. 2 to 9 had also given personal guarantees. THE defendant No. 1 availed of the facilities and made certain payments. Certain payments were also received from defendant No. 13 towards the lease rentals receivable by defendant Nos. 1 to 4.;
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