Allowed

Hdfc Bank v. Anjani Kumar Singh

DRT27 Jun 2023OA/123/2022

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal, Patna, allowed an original application filed by HDFC Bank Ltd. for recovery of a business loan of Rs. 31 lakh. The tribunal determined the principal amount, pendent-lite, and future interest in favor of the bank.

What did the court decide?

Recovery certificate issued for Rs. 31,42,958.35 plus future interest and costs; attachment of mortgaged and other properties ordered; Recovery Officer directed to realize the amount.

Hdfc Bank versus Anjani Kumar Singh — Banking and Recovery | DRT (2023)

OA 123 of 2022IJ]

DRT,PATNA

Debts Recovery Tribunal, Patna

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Karpuri Thakur Sadan, Aashiana Digha Road at PATNA-800025

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Presiding Officer : Shri Kaushalendra Yadav OA Case no. : 123 of 2022

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HDFC Bank Ltd., 2nd Floor Rajendra Ram Plaza Exhibition Road, , Patna-l.

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. Applicant

Vs.

Anjani Kumar Singh S/o Ramchandra Prasad Singh Rio 6/102, Indrapuri, Phulwari District-Patna, Pin code-S00024. And also Rio Hasanpur, P.O.-Hasanpur, Hajipur,"District-Vaishali, Pin code-S44506. And also Mis Medicine Palace, through its proprietary Mr. Anjani Kumar Singh S/o Ramchandra Prasad Singh, Address west Boring Canal Road, Opposite Maa Sharda Complex Boring Road, Boring Road, DistrictPatna, Pin code-SOOOO1.

...Defendant

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Present:

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For the' Applicant For the Defendant

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Shri Bhola Shankar, Advocate Dr. Juhi Choudhary, Advocate

Dated: 27.06.2023

JUDGMENT

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1- The Applicant bank has made this application u/s 19 of the Recovery of Debts and Bankruptcy Act, 1993 (here-in-after referred to as Act) on 11.2.2022 against the defendant to recover its debts from defendant of Rs.31,42,95S.35 as on 9.12.2021alongwith pendente-lite and future interest at the contractual rate from 10.12.2021 with costs till realization.

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2- The application has been duly registered and numbered as above.

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3- The brief facts of the case of the applicant bank as stated in the application are as under-

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The applicant HDFC Bank Limited, company incorporated under the companies Act 1956 carrying'"on banking business under license granted by RBI and registered under banking regulation Act 1949,having its registered office at HDFC Bank House, Senapati Bapat Marg, Lower Parel(West), Mumbai-400013 and one of its Branch Office amongst other places, at HOFC Bank Limited, 2nd Floor Rajendra Ram Plaza Exhibition Road, Patna-l.

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The defendant is individuals who obtained credit facilities in respect .of Business loan on personal capacity from the bank. The defendant approached the bank with a request for a financial assistance and avail a business. loan facility against personal security and bank sanctioned the loan of RS.25 lakh on 13.1.2020. The defendant executed the various loan documents in favour of the bank.

OA 1230(2022 IJI

DRT,PATNA

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All the transactions were entered in the ledger of the loan accounts in the name of the defendant duly maintained by the applicant bank in its usual course of business. After availing the sanctioned credit facilities became irregular in repayment of their dues as per agreed terms and failed to adhere to the financial norms of the bank and avoiding the repayment of its dues to the bank, in spite of several assurances given by it to the applicant bank resulting in the account turning as NPA on 5.10.2021.

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Thus the total liability in the loan account is Rs.31,42,958.35 with pendentelite and future interest at the contractual rate from 10.12.2021 till the realization.

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The interest /compound interest has been charged at such rates, and capitalized at such periodical rests as are permitted by and do not run counter to the directives of Reserve Bank of India.

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Since, the defendant has failed and neglected in spite of several reminders to make payment of the "'"duesrecoverable to bank, hence this application has been filed by the bank.

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4V/s 19 (4) of the Act & Rule of the DRT [Procedure] Rules, 1993, copies of application & paper book was sent by this Tribunal to the defendant by registered/speed post on 27.5.2022, and summon/notice issued requiring the defendant to show-cause within 30 days of the service of summon/notice as to why relief prayed for, should not be granted.

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Despite the registered summon/notice, the defendant has appeared before this Tribunal to contest the case. The sufficient time has been given to the defendant to file written statement, but he failedto file WS.

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In response of defendant has appeared and defendant has filed written notes of arguments stated that the defendant has obtained credit faciJities of RS.25 lakh in respect of the business loan in personal capacity from the applicant bank for this the defendant has given his personal security to the bank for availing said the credit facility. The defendant made regular payment of EMI's till 27.11.2020 but as alleged, thereafter the defendant failed to make further payment of any further EMI's as per the agreed terms of the loan documents in spite of repeated reminders or demand from the bank in view of such continuous default on the part of the defendant applicant the bank has declared the debt of the defendant as a NPA on 5.10.2021 and issued a notice thereafter related with recall the loan facility through the letter on 13.12.2021 was for immediate payment of the dues amount of rupees 31,42,958.35 within a very short period of seven days "from the date of received but the defendant applicant has failed to repay the amount. The instant loan has been taken by the defendant to carry out the tender works related to the loading, unloading, handling of transport contractor at central warehouse Hazaribagh and railhead Hazaribagh allotted to the defendant by Central Warehousing Committee. Due to some discrepancies in the measurement

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OA 1230(2022 (JI

DRT,PATNA

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of the food items in Dharmkantas of Railhead Hazaribagh and the central warehouse Hazaribagh the defendant was supposed to suffer a huge loss and so according to the terms of the contract he ahs approached CWC for arbitration and upon the direction of the Hon'ble Patna High Court the matter has been remanded over to the arbitral Tribunal of Hon'ble Mr. Justice Dinesh Kumar Singh which is still pending. Due to the said dispute between the defendant and CWC an amount of R~.6,18,84,288/is withheld and so the defendant needs some more time to make the repayment of the instant loan. He has claimed before the arbitral tribunal for the compensation amount of interest due with regards to the instant ... loan account. It is further stated that the daughter in law of the defendant is suffering from acute renal failure and is under treatment in IGIMS Patna under the guidelines of Sri Gangaram Hospital New Delhi. The defendant humbly submits that his problems may be considered sympathetically upon humanitarian grounds so he may come out of all his problems and can repay the instant loan amount. It is further stated that the force majeure was also imposed due to world vide pandemic Covid19. Under the circumstances the action of the bank starting with demand notice to the actions till today is illegal and deserves to be dismissed. It is further prayer to dismiss the instant OA.

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Arguments of ld. Counsels of the applicant bank and ld. counsel for the defendant were heard and record perused and considered.

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5- To prove its case, the applicant Bank has referred various certified photocopies of documents before this Tribunal. The applicant bank has also given evidence on affidavit by way of affidavit of Shri Shubham Saurav, Legal Manager of the applicant bank. The details of documents are as follows. :-

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SI.No	Description of photocopies Documents	Date of Execution	Amount	Signature of executant	Ex.! Ann. No.
~	Loan application	13.11.2019	Rs.50 lakh	defendant	1
2	Income tax return acknowledgment	...	...	...	2
3	agreement containing term and conditions	13.1.2020	...	...	3
4	Loan recall notice	13.12.2021 ...	...	Advocate	4
5	Statement of account	as on 9.l2.2021	Rs.31,42,958.35	bank	5

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6- It is submitted by ld, Counsel of applicant bank that the defendant has admitted the loan facility, granted to them and there is no any specific denial of execution of loan documents by the defendant. It is further submitted that there is no any stay granted by the Hon'ble Higher Court in the matter.

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It is further submitted that the applicant bank has filed the Original Application, for recovery of due amount, after deducting all the amounts, deposited by the defendant and by calculating the interest charged, as

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OA 123of 2022IJ]

DRT,PATNA ..

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agreed by the defendant. It is further submitted that the defendants have not deposited any amount, after filing of the OA.

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It is requested that the recovery certificate may be issued for the claim amount, as made in OA, as there is no any specific denial by the defendants.

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7- 1 It has been established that defendant is living and carrying on his business in the state of Bihar. Cause of action arose in the State of Bihar. The said claim on the date of filing of application exceeded Rs.20 lacs. The applicant bank is functioning within jurisdiction of this tribunal. Therefore, this Tribunal has territorial as well as pecuniary jurisdiction to adjudicate upon the present application.

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8- On the issue of Limitation, to prove it, the applicant bank has submitted that the account Wasdeclared as NPA 5.10.2021, whereas the present application has been filed on 11.2.2022. Even, it is counted for the purpose of Limitation, then it i,s established that the applicant bank has filed the case within the limitation period. As such, it is established that present application has been filed well within the period of limitation.

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9- In the affidavit of Shri Shubham Saurav, Legal Manager of Applicant bank, has stated that he is well acquainted with the facts of the case and has on verification of record, sworn in the affidavit in support of contents of application and the documents as evidence and established on oath the pleadings and documents of the applicant bank as stated above.

10On perusal of the above documents, it is clear that the applicant bank has granted loan facility to the defendant and to secure the loan, various loan documents were executed by the defendants and loan facility was availed by the defendant as stated in the application.

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11The documents as stated above reveal that the defendant has applied for loan and bank had sanctioned loans, thereafter, to secure the loan and for repayment of loan amount with interests etc., the defendant has executed various loan documents, which strength the case of the applicant bank.

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12The applicant bank has also furnished statement of account as shown above, which is not only admissible but shall be taken as correct statement of account, more so since the entries in the statement of account has not been challenged.

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13Defendant has neither denied the utilization of funds'advanced by applicant bank nor has pointed out .any specific error and discrepancy in the Statement of Account, which is kept in due course of business, evidence on affidavit, which has supported the claim of the applicant bank, established to have fully correct and believable. Provisions contained in Rule 9(2) of Debt Recovery Tribunal (Procedure) Rules, 1993 provide that the documents referred in the application shall be duly stated by senior officer of the bank, or financial institution as the

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OA 123 of20221J)

DRT,PATNA

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case may be and numbered accordingly. The rule 12 (10) provid~s that the provisions contained in section 4 of the Banker's Books evidence that Act, 1891 (18 of 1891) shall applied to certified copy of an entry in a Banker's Books furnished alongwith application filed under sub section 1 of section 19 by the applicant.

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14On consideration of the arguments and on perusal of the application, documents, affidavit, it is proved that the applicant bank has granted the loan facility to the defendant and to secure the loan, various loan documents were executed by the defendant and facility were availed by the defendant as stated in the application.

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15-The Section 58 of the Indian Evidence Act, 1872 reads as under-

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"58. Facts admitted need not be proved.- No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

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Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

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16In Indian Bank vs. Blue Jaggers Estates Limited and others [2010] g SCC 129,the Hon'ble Supreme Court of India has observed as under-

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"The Court cannot lose sight of tne fact that the bank is a trustee of public fund. It cannot compromise the public interest for benefiting private individuals. Those who take loan and avail financial facilities from the bank are duty bound to repay the amount strictly in accordance with the terms of the contract. Any lapse in such matters has to be viewed seriously and the bank is not only entitled but duty bound to recover the amount by adopting all legally permissible methods. Parliament enacted the act because it was found that legal mechanism available till then was wholly insufficient for recovery of the outstanding dues of the banks and Financial Institutions."

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17Facts of the case, in my view, are well proved by evidence of the applicant bank as well as admission of defendant. The applicant bank is entitled to receive from defendant of Rs.31,42,958.35 together with pendentelite and future interest @16% p.a. with compounded monthly rests from 11.2.2022 (The date of filing of this O.A.) till realization. So the final order may be passed accordingly, to meet the ends ofjustice.

ORDER

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In the result, the application of the applicant bank, is allowed and debt is determined with costs against the defendant and it is, hereby, ordered that the applicant bank is entitled to receive from sole defendant, it's debts with interest, amounting to' Rs.31,42,958.35 together with pendentelite and future interest @16% p.a. with compounded monthly rests from 11.2.2022 (The date of filing of this O.A.) till realization of the entire sum due and recoverable ~osts.

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OA 123 of 2022IJ)

DRT,PATNA

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It is further made clear that any amount deposited by the defendant, be deducted in the claim amount, if not deducted.

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Defendant is debarred from tr,ansferring,alienating encumbering or otherwise dealing with or disposing of the mortgaged or hypothecated or any other properties and assets without paying the aforesaid adjudicated dues to the applicant bank to secure the ends of justice. The mortgaged or hypothecated assets to secure the loan in question are hereby attached and shall be subject to the final order under the recovery proceedings in pursuance of the Recovery certificate issued under Section 19(22) of Recovery of Debts and Bankruptcy Act 1993. The applicant may submit the certified copy of this Judgment and the Recovery Certificate before the Registrar/ Sub- registrar to endorse the charge over the secured assets.

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Let a certificate of recovery be drawn up forthwith and put up for signatures in terms of provisions contained in Section 19(22)of the Act to be issued, on the basis of the order of the Tribunal to the Recovery Officer. The Recovery Officer sHall realise the amount as per the certificate in the manner and mode prescribed under the Act from the defendant, by sale of mortgaged! hypothecated assets as well as other personal movable/immovable assets of the defendant.

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Parties are directed to appear before the Recovery Officer, DRT, Patna on 30.8.2023. The order be communicated accordingly.

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Judgment signed, sealed, dated and pronounced in the open court . hi 2 th on t IS 7 Day of June, 2023.

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Dictated & Corrected by me

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... [Kaushalendra Yadav] Presiding Officer Debts Recovery Wqal, gtl1~, S~'·~ "' :... '. .J ...a

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FORM NO. 9 [See Regulation 24(1)]

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DEBTS RECOVERY TRIBUNAL PATNA 2nd FlooJ;.(A. B & F Wing) Karpuri Thakur Sadan, Kendriya Karamchari Parisar (GPOA), Ashiana Digha Road, Patna800025.

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RECOVERY CERTIFICATE UNDER SECTION 19(1) READ WITH SECTION 19(W OF THE RECOVERY OF DEBTS & BANKRUPTCY ACT, 1993, AS AMENDED FROM TIME TO TIME.

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RC No. 352/2023

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Case No: OA/123/2022

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In the Matter of:

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(CH- I) HDFC BANK

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2ND FLOOR RAJENDRA RAM PLAZA EXliIBITlON ROAD PATNA ,BIHAR -80000 I

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Applicant(s)

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------ Versus -------

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To,

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(CD- I) ANJANI KUMAR SINGH.

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son of Ramchandra Prasad Singh Residence ofr- 6/102, Indrapuri, ,Phulwari, Patna ,BIHAR -800024

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Also At.

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ALSO AT:- ANJANI KUMAR SINGH SON OF RAMCHANDRA PRASAD SINGH RESIDENCE OF:- HASANPUR, P.O.HASANPUR, HAJIPUR, DlSTRICTVAISHALl PIN CODE- 844506, BIHAR Also At.

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Defendant( s)

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AND ALSO AT : MIS MEDICINE PALACE, THROUGH ITS PROPRIETOR MR. ANJANI KUMAR SINGH SON OF RAMCHANDRA PRASAD SINGH, ADDRESS:- WEST

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BORING CANAL ROAD, OPPOSITE MAA SHARDA COMPLEX BORING ROAD,

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BORING ROAD, DISTRICT- PATNA, BIHAR PIN CODE- 800001

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Recovery' Certificate for Rs 3142958.35 [ Rup-ees ThirtY. One Lakhs FortY. Two Thousands Nine Hundred FiftY. Eight And Paise Thirty Five OnIY_1

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In terms of final order dated 27/06/2023 passed by this Tribunal in the above mentioned case, it is ordered that the Applicant Certificate Holder Bank is entitled to recover a sum of Rs. 3142958.35 along with cost, expenses and interest from the 11/02/2022 i.e. date of filing 1 with effective date of the ON123/2022 and future interest from order date till the date of realisation in full, jointly or severally from the Certificate Debtors, hereinafter referred to as:-

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Int. Type/Mode	t. te	Effective Date	Order Date	A t(R ) moun s.	Liability Type	Interest (as on Order Date)	RC Amount(Rs.)	emark
ompound nterest Monthly)		11102/2022	7/06/2023	3142958.35	Fully	Interest As on Order Date	3142958.35

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In case of failure to pay the aforementioned adjudicated amount within 30 days, same shall be recovered from the sale of the mortgaged/hypothecated assets as well as other personal movablel Immovable assets of the certificate debtors.

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The mortgaged or hypothecated assets to secure the loan in question are hereby attached and shall be subject to the final order under the recovery proceeding in pursuance of the Recovery certificate issued under Section 19(22) of Recovery of Debts and Bankruptcy Act 1993 Parties are directed to appear before MAN OJ KUMAR, Recovery Officer, DEBTS RECOVERY TRIBUNAL PATNA on 30/08/2023.

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The Recovery Officer shall realize the amount as per this Certificate in the manner and mode prescribed under Sections 25 to 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (as amended from time to time) from the above named Certificate Debtors.

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This Certificate has been issued under my signature and seal oftb& Tribunal on this 27/0612023

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P~GOFFICER DEBTS RECOVERY TRIBUNAL PATNA

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FORM NO. 10

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[See Regulation 24(2)]

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DEBTSRECOVERYTRIBUNALPATNA

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2nd Floor, (A. B & F Wing) Karpuri Thakur Sadan, Kendriya Karamchari Parisar (GPOA), Ashiana Digha Road, Patna-800025.