Dismissed

Vinod Kumar Jaiswal v. State Bank of India

DRAT4 Sept 2024REGULAR APPEAL/81/2008

Case brief

AI extract

What is this about?

The Debts Recovery Appellate Tribunal rejected an application by an appellant seeking a refund of a pre-deposited sum. The Tribunal held that the Bank's outstanding dues exceeded both the deposit and proceeds from auction sales, meaning no excess funds existed to refund to the appellant.

What did the court decide?

The miscellaneous application filed by the applicant is rejected.

Vinod Kumar Jaiswal versus State Bank of India — Company and Corporate | DRAT (2024)

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IN DEBTS RECOVERY APPELLATE TRIBUNAL, ALLAHABAD

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M.A. No. 76/2020 In Regular Appeal No. 81/2008

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Aman Jaiswal Vs. State Bank of India

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Present: Shri Shadab Alam, counsel for the Applicant, Shri P.K. Shrivastava, counsel for the respondent-Bank,

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ORDER Date of Decision: 04.09.2024

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JUSTICE R. D. KHARE, CHAIRPERSON

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The present application was heard and reserved for orders on the point of release of excess amount lying with the respondent-Bank vide order dated 24.05.2024 of this Tribunal.

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Learned counsel for the applicant submitted that he had filed an appeal no. 81/2008 against the order dated 10.01.2005, by which the O.A. No. 80 of 2003 filed by the respondent-Bank was decreed ex-parte for a sum of Rs. 14,38,175.74 together with pendentelite and future interest @13.77% per annum with quarterly rests w.e.f. 09.04.2003 till the recovery is made from the defendant nos. 1 to 4.

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The learned counsel for the applicant further submitted that the applicant had total deposited Rs. 14,38,176/towards pre-deposited before this Appellate Tribunal for maintaining the aforesaid appeal, but while deciding the said appeal vide order dated 23.01.2009, this Hon’ble Tribunal had ordered that “ amount deposited by the appellants with the court along with interest be paid to the respondent-Bank immediately. The Bank is directed to adjust the same and return the residue amount within a month from the date of passing of this judgment and if

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still some balance is due to the applicants, to get the decree executed to that extent. ”

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It was also contended on behalf of the applicant that he had filed a misc. application no. 203 of 2019 before this Hon’ble Tribunal, which was disposed off vide order dated 05.03.2020, wherein it has been stated that “ the learned counsel for the applicant is not in position to clarify that as per his own calculation, what amount is lying with the Bank and what is his claim against the bank, so no relief can be granted without any specific pleading or evidence in this regard. However, the applicant is free to approach before the Bank for getting the details of the account including the statement of account pertaining to the year 2009, so as to ascertain the about the entries in the account. The Bank is directed to consider within one month, the application of the applicant if filed by the applicant within 15 days from today ”.

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The learned counsel further contended that thereafter, the applicant had sent representations dated 16.03.2020, 26.06.2020 and a letter dated 07.09.2020 under RTI Act to the respondent-bank, but neither any details were provided nor any payment was made. It was, therefore, prayed that the present application may be allowed directing the respondent-bank to refund the money as per order dated 23.01.2009 and 05.03.2020 along with interest.

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Learned counsel for the respondent-Bank submitted that the Bank had filed three suits bearing no. 80/2003, 11/2003 and 09/2003 against the defendants/appellant, in which the recovery certificate no. 28/2005 was issued for Rs. 14,38,175.74 plus future interest @ 13.77% per

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annum w.e.f. 09.04.2013, 15/2004 for Rs. 17,62,309/plus future interest @ 13.77% per annum w.e.f. 05.04.2013 and recovery certificate no. 19/2006 was issued for Rs. 14,20,064/- plus future interest @ 13.77% per annum w.e.f. 13.09.2004. The learned counsel further submitted that as per the said decree, the outstanding against the appellant/defendants comes to Rs. 91.06 lacs as on 15.02.2008, against which the borrowers have only deposited Rs. 14,38,176/-. It was further contended that the mortgaged property was sold for a sum of Rs. 52.00 lacs and after adjusting the entire amount deposited by the borrowers as well as the amount of sale proceed, the total amount comes to Rs. 66,38,176/- against the total dues of Rs. 91.06 lacs plus future interest thereon from 16.02.2008.

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The learned counsel has referred to the annexure no. 1 at page no. 6 of its written objection, which is a calculation sheet of all the loan accounts of the appellant/defendants and has stated that as on 31.07.2022, the total dues to be recovered from the appellant/defendants is Rs. 1,74,70,747.55. The learned counsel further submitted that the borrowers have misinterpreted the aforesaid judgment dated 23.01.2009 and demanded refund of the amount, whereas still dues remain unpaid, for which the Bank is entitled to recover from the applicant. It was, therefore, prayed that the present misc. application filed by the applicant may be dismissed with heavy costs.

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Having heard the learned counsels for the parties and considering the material available on record, undisputedly, the appeal Sr. No. 81/2008 was filed before this Tribunal against the ex-parte judgment dated

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10.01.2005 passed by the Tribunal below in O.A. No. 80/2003 filed by the respondent-Bank, which was decreed for a sum of Rs. 14,38,175.74 together with pendentelite and future interest @ 13.77% per annum with quarterly rests along with costs w.e.f. 09.04.2003 till the full recovery is made from the appellant/defendants. It is admitted that for maintaining the appeal, the appellant has deposited a total sum of Rs. 14,38,176/- before this Tribunal, which was ordered to be released in favor of the Bank by this Tribunal while deciding the appeal finally vide judgment dated 23.01.2009. It is also admitted fact that the Bank had filed three original applications against the appellant/defendants as detailed in the preceding paragraph of this order, which were allowed in favor of the Bank. If the amount deposited by the applicant is considered against only the present appeal filed before this Tribunal, even then the said amount does not appear to be over and above the same.

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So far as the amount realized from the auction sale of the mortgaged property is concerned, it is not known that the said property was either mortgaged in one account or in all three accounts of the borrowers, whereas the Bank had filed three original applications against the appellant/defendants and in the said accounts as per the calculation sheet filed by the bank as annexure no. 1 to the written objection as on 31.07.2022, the total dues to be recovered from the appellant/defendants is Rs. 1,74,70,747.55, which is much more than the amount realized by the Bank from the auction sale of the mortgaged property as well as the amount received from the borrowers. In these circumstances, it cannot be said that there is any excess

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amount with the respondent-Bank, which can be directed to be refunded in favor of the appellant, as the borrower, guarantor or mortgagor is liable jointly and severally.

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In view of the above, the present misc. application filed by the applicant is liable to be rejected. Hence, the same is rejected with no order as to costs.

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A copy of this order be forwarded to the parties as well as to the DRT concerned and be also uploaded on the e- DRT portal.

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CHAIRPERSON

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VN Giri

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Vinod Kumar Jaiswal v. State Bank of India

Case brief

What is this about?

What did the court decide?

Vinod Kumar Jaiswal v. State Bank of India

Case brief

What is this about?

What did the court decide?

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