Dismissed

Mr.Syed Sirajudin v. State Bank of India

DRAT2 Nov 2023REGULAR APPEAL/51/2014

Case brief

AI extract

What is this about?

Appeal by legal representatives of a deceased borrower challenging the DRT's order allowing a bank's Original Application for recovery. Aided by a Master of the Bench, the Appellate Tribunal affirmed the lower court's decision, finding the bank evidence credible and the appellant's failure to cross-examine deponents fatal to their claim.

What did the court decide?

Appeal dismissed. Both parties to bear their own costs. All pending interim applications stand closed.

Mr.Syed Sirajudin versus State Bank of India — Banking and Recovery | DRAT (2023)

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RA 51/2014

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IN THE DEBT RECOVERY APPELLATE TRIBUNAL AT CHENNAI

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Dated the 2^nd of November, 2023

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PRESENT: Hon’ble Mr. Justice S. Ravi Kumar CHAIRPERSON

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RA 51/2014

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[OA No.201/2008 on the file of DRT, Bangalore]

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Between

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Mr. Syed Sirajjudin (Deceased), S/o. Syed Shabuddin, Proprietor, M/s. Sharfu Hardware,

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1(a) Kursheeda Khatoon,

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1(b) Syed Fahimudeen,

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1(c) Syed Waseemudeen,

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1(d) Syed Kaleemudeen,

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1(e) Syed Nizamudeen,

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All are residing at:

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No. 507, Nagawara Main Road, Venkateshpuram, Bengaluru-560 045.

……Appellants

And

State Bank of India,

(Formerly State Bank of Travancore) Pillana Garden Branch Shop No. G 6, Ashoka Enclave, No.12, Netaji Road, Frazer Town, Bengaluru – 560 005.

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….. Respondent

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Counsel for Appellant : M/s. T. Srinivasaraghavan Counsel for Respondent : M/s P. N. Radhakrishnan

RA 51/2014

ORDER

This Appeal is against Order dated 29.04.2009 in OA 201/2008 on the file of DRT, Bangalore.

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Brief facts leading to this Appeal are as follows:-

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State Bank of Travancore filed OA for recovery of Rs.14,52,269/- together with interest and costs, contending that Appellant herein availed Overdraft facility and Cash Credit facility and failed to repay the same in spite of Demand Notice.

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Appellant, who was sole Defendant, resisted the claim mainly contending that out of four accounts claimed by Bank, only two accounts are opened by Appellant, and other two accounts are opened playing fraud by forged signatures by one Ramkumar, Branch Manager, and outstanding claimed by Bank is in respect of those two fraudulent accounts, and that the Appellant is not liable to pay any amount.

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RA 51/2014

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Tribunal below, on a consideration of pleadings and evidence, discarded objection of Defendant, i.e., Appellant herein and allowed the OA. Aggrieved by which, present Appeal is preferred.

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After merger of State Bank of Travancore, State Bank of India came on record and defended the Appeal.

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During pendency of this Appeal, sole Appellant died and his Legal Representatives are brought on record as Appellant Nos.1(a) to 1(e,), on 19.08.2014.

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Written Arguments are filed on behalf of Appellants and Respondent. Both sides’ Advocates reiterated Written Arguments during oral arguments.

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It is the main contention of Appellants that Account No.670015106 and Account No.67001614593 are fake and fictitious accounts, and deceased Defendant did not open them, and amount claimed in OA is in respect of those two

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RA 51/2014

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accounts only. During trial, Affidavit of Bank Officer is filed and additional Affidavit is also filed besides loan documents which are marked as Exhibits A4 to A29. On behalf of Appellant, Affidavit of deceased Defendant is filed, and Tribunal below, on a consideration of evidence, discarded the defence of Appellant. Main objection of Appellant is that the very same Ramkumar filed Proof Affidavit and additional Affidavit, which are marked as Exhibits A1 and A2, but Police declared said Ramkumar as absconder, therefore, Affidavit filed by an absconder, cannot be received as evidence. This contention is negatived by DRT by recording reasons.

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Advocate for Appellant contended that when Police declared deponent as absconding, relying on such Affidavit is totally incorrect, and if that Affidavit is ignored, there is no evidence for the Bank, and the OA claim must go.

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RA 51/2014

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On the other hand, Advocate for Bank contended that the Affidavit filed is a Notarized Affidavit, and simply because Police declared him as an absconder that does not mean the deponent has not signed the Affidavit. He submitted that Police record is nothing to do with the Affidavit filed before the DRT.

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As rightly pointed out by Advocate for Bank, Affidavit of deponent cannot be discarded on the grounds that are urged by Appellants.

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As per Rule 12(9) of the Debts Recovery Tribunal (Procedure) Rules, 1993, facts can be proved by an Affidavit. As per proviso to said Rule, if Defendant desires production of a witness for cross examination, such witness can be produced, and in the event, such witness is not appearing for cross examination, the Affidavit shall not be taken into evidence.

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RA 51/2014

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Admittedly, Appellant did not take any steps for production of deponent for cross examination. If really, deponent is absconding, nothing prevented Appellant to invoke this remedy by requesting DRT to produce deponent for cross examination, and on taking such steps, if deponent failed to appear, then, such Affidavit filed by deponent, cannot be taken as evidence. Appellant, without availing such remedy, harping on the declaration made by Police, is absolutely not permissible and Tribunal below has rightly discarded objection of Defendant.

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When the Affidavit of Bank Officer makes it clear that

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the Defendant availed loans as referred to in the OA, and such statement of deponent is supported and corroborated by documents, such evidence cannot be discarded, unless it is rebutted. Defendant i.e. deceased Appellant herein, except denying execution of documents, no convincing evidence is produced to support the allegation of creating fake and fictitious accounts.

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RA 51/2014

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When Defendant contended that he has not opened Account No.670015106 and Account No.67001614593, when Bank produced documents with signatures of Defendant, minimum expected from Defendant is to take steps to send those documents for expert examination, if he really has not signed those documents. No such steps are taken. Much is argued about complaint made against Ramkumar, the then Branch Manager and about the criminal cases, those aspects are no way relevant for the claim in the OA.

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On a scrutiny of entire material, I am of the considered

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view that Tribunal below has rightly allowed the OA considering the oral and documentary evidence of both parties, I do not find any wrong in the Order dated 29.04.2009.

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RA 51/2014

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For the above reasons, it is held that there are no

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grounds to interfere with Order dated 29.04.2009 of DRT, Bangalore, and the Appeal is devoid of merits.

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In the result : the Appeal RA 51/2014 is dismissed. Both parties shall bear their own costs. All pending IAs, if any stand closed.

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[Dictated to Athistamani transcribed by her, corrected, signed and pronounced by me in open court, this 2^nd of November, 2023]

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[ Justice S. Ravi Kumar] CHAIRPERSON

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Mr.Syed Sirajudin v. State Bank of India

Case brief

What is this about?

What did the court decide?

Mr.Syed Sirajudin v. State Bank of India

Case brief

What is this about?

What did the court decide?

What the court decided

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