Allowed

Idbi Bank v. Mr. Chand Ansari and Others

DRT11 Jul 2023OA/128/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal, Patna allowed the application filed by IDBI Bank Ltd. for recovery of dues of Rs.27,38,715/- along with interest and costs against three respondents. The application was proceeded ex-parte as the respondents failed to appear despite summons and newspaper publication. The Tribunal found jurisdiction, limitation payable, and established the claim based on uncontroverted documentary evidence and affidavits.

What did the court decide?

Ordered payment of Rs.27,38,715/- along with pendente-lite and future interest at 11.55% p.a. compounded monthly with costs. Attached mortgaged/hypothecated assets and directed issuance of Recovery Certificate under Section 19(22) of the Act.

Idbi Bank versus Mr. Chand Ansari and Others — Banking and Recovery | DRT (2023)

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DRT,PATNA

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OA 128 of 2022 IJI

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Debts Recovery Tribunal, Patna,

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Karpuri Thakur Sadan, Aashiana Digha Road at PATNA-80002S

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Presiding Officer : Shri Kaushalendra Yadav

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OA Case no. : 128of 2022

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IDBI Bank Ld. Brajesh Automobiles Building, Ravi Commercial Complex, Nauratan Hata, N.H. 31 Pumea, P.S.-Purena, District-Pumea, Pin code 854301.

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....... Applicant

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Vs.

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Mr. Chand Ansari S/o Mr.Ashraf Ansari, at Khazanchi Hat, Near Dr. Z.B. Raza, Line Bazar, Pumea, District-Purena, Pin code854301, PAN no. AVQPA2862B.

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Mr. Shasfi Ahmad S/o Mr.Shami Ahmad, at Line Bazar, Near Shiv Mandir, Daftari Mohalla, Pumea, District-Purena, Pin code-854301, PAN no. ALPPA 8544H.

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Mrs. Reejavana Khatun W/o Mohammad Kamal At Muzaffar, Ahmad Nagar, Madhopara, Khazanchi Hat, Pumea, District-Purena, Pin code 854301, PAN no. CZAPK7438M.

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...Defendants.

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Present:

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For the Applicant : Shri J.K. Roy, Advocate For the Defendants : None

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Dated: 11.07.2023

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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 15.2.2022 against the defendants to recover its debts from defendants of Rs.27,38,715/- upto 31.12.2021 alongwith pendente-lite and future interest at the contractual rate from 1.1.2022 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 IDBI Bank Ltd. a company incorporated and registered under the companies Act 1956 (1 of 1956) and a banking company within the meaning of section 5© under the Banking regulation Act 1949 carrying the business of Banking and having its registered office at IDBI Tower, WTC complex, Cuffe Parade, Mumbai-400005 and its Zonal Office at Kashi Palace New Dak Bunglow Road, Patna and Branch Office at Brajesh Automobiles Building, Ravi Commercial Complex, Nauratan Hata, N.H. 31 Pumea, P.S.-Purena, District-Pumea, Pin code 854301 .

OA 128 of20221J)

DRT,PATNA

. The defendant no. 1 is a borrower and the defendant no. 2 & 3 are the guarantors. The defendant no. 1 approached the bank and made an application for loan against hypothecation of agricultural products on 8.10.2015 to provide liquidity and to avoid distress sale of Agri commodity. The bank sanctioned the loan of Rs.24 lakh. The defendants executed the various loan documents in favour of the bank. The defendant no. 3 had mortgaged her immovable property by way of collateral security on 13.10.2015. At the request of the defendants the bank has further sanctioned and disbursed FITL loan ofRs.1,71,878/- to the defendant no. 1 on 13.9.2020 as per the government announcement for revival of the MSME sector on account of covid situation. At the request of the defendants the applicant bank changed the guarantee and security of Mrs. Sibiya Khatoon by the Rizawana Khatoon and she became guarantor by replacing Mrs. Sibiya Khatoon.

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All the transactions were entered in the ledger of the loan accounts in the name of the defendants 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 29.6.2021.

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Thus the total liability in the loan account is Rs.27,38,71S/- as on 31.12.2021 with pendentelite and future interest at the contractual rate of interest with monthly rests from 1.1.2022till 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 defendants have failed and neglected in spite of several reminders to make payment of the dues recoverable to bank, hence this application has been filed by the bank.

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4- V/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 defendants by registered/speed post on 4.6.2022, and summons/notices issued requiring the defendants to show-cause within 30 days of the service of summons/notices as to why relief prayed for, should not be granted.

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On perusal of the case records, it is clear that on 4.6.2022, summons/notices were sent to the defendants, but the defendants have not appeared, hence, the Registry of this Tribunal has ordered to publish the notice in newspaper and subsequently, substituted service by publication of notice by way of advertisement in newspaper was also made against the defendants on 28.8.2022 in " Dainik Jagaran" newspaper.

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OA 128of20221JI

DRT,PATNA

Despite the registered summons/notices and publication of notice in newspaper, the defendants have not appeared before this Tribunal to contest the case. The sufficient time has been given to the defendants to defend their case, but they failed to appear and to file WS, hence, the Tribunal has passed an order to proceed ex-parte against the defendants 25.1.2023.

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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 Rajiv Ranjan, AGM 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.
1	Loan application	8.10.2015	Rs.241akh	defendant no. I	I
2	sanction letter	12.10.2015	Rs.24lakh	bank	2
3	DP note	13.10.2015	Rs.241akh	defendant no. 1	3
4	DP note	13.10.2015	Rs.241akh	defendant no. 1	4
5	letter of ~othecation	13.10.2015	Rs.241akh	defendant no. 1	5
6	letter of guarantee	13.10.2015	Rs.241akh	defendant no. 2	6
7	letter change of guarantee	...	...	bank	7
8	sanction letter	18.12.2017	Rs.241akh	bank	8
9	letter of common guarantee	27.12.2017	Rs.24lakh	defendant no. 1&3	9
10	letter of creation of mort_gage	...	...	defendant no. 3	10
11	sanction letter	6.4.2018	...	bank	11
12	application	20.2.2021	Rs.241akh	defendants	12
13	sanction letter	23.2.2021	Rs.24lakh	bank	13
14	revival letter	24.2.2021	...	defendants	14
15	statement of account	as on 31.12.2021	Rs.27,38,715/-	bank	15

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6- Opportunity of hearing has been fully given to both the parties, but despite several opportunities given to defendants, the defendants have not appeared to contest the case, hence, the ex-parte arguments of learned counsel for applicant bank were heard and perused the case record.

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Ld. counsel of applicant bank submitted that the defendants have taken the loan and utilized the same and also executed the various loan documents to secure the loan. Further, submitted that the claim of the bank has been proved by documentary evidence.

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It is further submitted by ld. Counsel of applicant bank that there is no any stay granted by any Higher Court, in respect of the proceedings of V. IIt7

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OA 128of2022 IJI

DRT,PATNA

the present OA and requested to issue recovery certificate, as claimed for, inOA.

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7- It has been established that defendants are living and carrying on their business in the state of Bihar. Cause of action also 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 applicant bank has declared the account as NPA on 29.6.2021 whereas the present application has been filed on 15.2.2022 Even, it is counted for the purpose of Limitation, then it is 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 Rajiv Ranjan, AGM of the 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. The documents as stated above reveal that the defendants have applied for loan and the bank had sanctioned the loan and to secure the loan and for repayment of loan amount with interests etc., the defendants have executed various loan documents, which strength the case of the applicant bank.

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The applicant bank has also furnished statement of account as 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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10Since, the case was proceeded ex-parte against defendants, all contentions raised and documents produced by plaintiff remained unrebutted and the tribunal may act upon the affidavit of the applicant as per law. Defendants have neither denied the utilization of funds advanced by applicant bank nor have 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 case may be and numbered accordingly. The rule 12 (10) provides 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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OA 128 of 2022 [JI

DRT,PATNA

11On consideration of the arguments and on perusal of the application, documents and affidavit, it is proved that the applicant bank has granted the loan facility, documents were executed by the defendants and facility was availed by the defendants as stated in the application.

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12The applicant bank has sought for recovery of a sum of Rs.27,38,71S/- with cost and further interest at the contractual rate from 1.1.2022till realization.

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13Learned Advocate appearing for applicant bank submits that the applicant bank has charged interest in terms of the agreements and that 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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14On consideration of the arguments and on perusal of the pleadings, documents and affidavit, it is proved that the applicant has charged interest against defendants in terms of documents and as per directives of RBI.

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15None of the defendants appeared before the tribunal to contest the claim made by the applicant, therefore, it necessarily goes to establish that the claim made by the applicant bank is genuine and true. It is manifest that the defendants have not disputed the claim, therefore, the claim referred to the tribunal is recoverable till full and final realization of the claim.

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16In Indian Bank Vs. Blue Jaggers Estates Limited and others [2010] 8 SCC 129,the Hon'ble Supreme Court of India has observed as under-

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"The Court cannot lose sight of the 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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17In my view, Facts of the case stand proved by evidence of the applicant bank ex-parte. Accordingly, The applicant bank is entitled to recover from defendantsjointly and severally ofRs.27,38,71S/- alongwith pendente-lite and future interest @11.55% p.a. with compounded monthly rests from lS.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.

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ORDER

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In the result, the application of the applicant bank is, allowed exparte and debt is determined with costs against the defendants. The

V 1'1)

OA 128of20221JI

DRT,PATNA

defendants are hereby jointly and severally, ordered to pay the applicant bank it's debts amounting to Rs.27,38,715/- alongwith pendente-lite and future interest @11.55% p.a. with compounded monthly rests from 15.2.2022 (The date of filing of this O.A.) till realization of the entire sum due and recoverable with costs.

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

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Defendants are debarred from transferring, 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 realize the amount as per the certificate in the manner and mode prescribed under the Act from the defendants, by sale of mortgaged! hypothecated assets as well as other personal movable/immovable assets of the defendants.

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Parties are directed to appear before the Recovery Officer, DRT, Patna on 12.9.2023.The order be communicated accordingly.

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Jud~ment signed, sealed, dated and pronounced in the open court on this lit Day of July, 2023.

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Dictated & corrected by me.

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~ \)'V?

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[Kaushalendra Yadav] Presiding Officer Debts Recovery Tribunal, Patna

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FORM NO. 9

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DEBTS RECOVERY TRIBUNAL PATNA

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[See Regulation 24(I)]

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

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RECOVERY CERTIFICATE UNDER SECTION 19(7) READ WITH SECTION 19(~) OF THE RECOVERY OF DEBTS & BANKRUPTCY ACT, 1993, AS AMENDED FROM TIME TO TIME.

RC No. 504/2023 IN

Case No: OA/128/2022

In the Matter of:

(CH- 1) IDBI BANK BRAJESH AUTOMOBILES BUILDING RAVI COMMERCIAL COMPLEX NAURATAN HATA N H31 PURNEA

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Applicant(s)

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PURNIA ,BIHAR -854301

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

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To,

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(CD- I) MR. CHAND ANSARI AND OTHERS. Slo Mr.Ashraf Ansari At- Khazanchi Har, Near Dr. Z.B. ,Raza, Line Bazar, Purnea Pumia ,BIHAR -854301

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(CD- 2) MR. SHASFI AHMAD SIO MR.SHAMI AHMAD AT-LINE BAZAR NEAR SHIV MANDIR, DAFTARI MOHALLA, PURNEA, DISTRICT- PURNEA PIN CODE854301

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Defendanu s)

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(CD- 3) MRS. REEJAVANAKHATUN WIO MOHAMMAD KAMAL AT-MUZAFFAR, AHMD NAGAR, MADHIPARA KHAZANCHI HAT,PURNEA DISTRICT- PURNEA PIN CODE854301

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~ Certificate for Rs 2738715.00 L.Rypees TwentY.Seven Lakhs ThirtY.Eight Thousands Seven Hundred Fifteen

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QruY-1

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In terms of final order dated 11/07/2023 passed by this Tribunal in the above mentioned case, it is orderedthat theApplicantCertificateHolder Bank is entitled to recovera sum ofRs. 2738715.00 along with cost, expenses and interest from the 15/02/2022 i.e. date of filing 1 with effective date of the OAI128/2022 and future interest from order date till the date of realisation in full,jointly or severally from the Certificate Debtors, hereinafter referredto as:-

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	Effective Date	Order Date	Amount(Rs.	Liability Type	Interest (as on Order Date)	RC Amount(Rs.)
	11.55 15/02/2022	11/07/2023	738715.00	ointly nd everally	Interest As on Order Date	738715.00
2	_15/02/2022 _	111071202	_3_2738715.00	ointly [And 'Severally	Interest son rder ate	2738715.00
3	_11.55 15/0212022 _	11107/2023	738715.00	Jointly And Severally	Interest A son Order Date	738715.00

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In case of failure to pay the aforementionedadjudicated amount within 30 days, same shall be recovered from the sale of the mortgagedlhypothecatedassets as well as other personal movable/ Immovableassets of the certificatedebtors..

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The mortgaged or hypothecated assets to secure the loan in question are hereby attached and shall be subjectto the final order under the recovery proceedingin pursuance of the Recovery certificate issued under Section 19(22)of Recoveryof Debts and BankruptcyAct 1993 Parties are directed to appear before ASHISH KUMAR, Recovery Officer, DEBTS RECOVERY TRIBUNAL PATNA on 12/09/2023.

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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 amendedfromtime to time) from the above namedCertificateDebtors.

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This Certificatehas been issued under my signatureand seal of the Tribunalon this II/07/2023

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PR~G OFFICER DEBTS RECOVERY TRIBUNAL PATNA

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FORM NO. 10

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[See Regulation 24(2)]

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DEBTS RECOVERY TRIBUNAL PATNA

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

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SCHEDULE TO RECOVERY CERTIFICATE MEMO OF COSTS

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RC No. 504/2023

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Case No: OA/128/2022

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Applicant(s): IDBI BANK Versus

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Defendant(s): MR. CHAND ANSARI AND OTHERS

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plication
s
Commissioner/Receive~~aluationiSecurity Fee
	30000

Place: PATNA

Date: 11107/2023

PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL PATNA

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Note: Strike out whichever is not applicable

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•

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Date of order or proceeding	DEBTS RECOVERY TRIBUNAL, PATNA Order with the Signature of the Court	Office action taken with data
	OA 128of 2022
11.07.2023	Judgment written on separate sheets kept on the case file and pronounced. Certificate of recovery be issued to the ld. Recovery officer for its execution. PreSidin~r
11.07.2023	Certificate U/S 19(7& 22) of the DRT Act, 1993 as amended from time to time in the form no. 09 of the Rules and procedures made there under prepared and signed by me for sending it to ld. Recovery Officer for its execution in accordance with law. Presiding Officer

Idbi Bank v. Mr. Chand Ansari and Others

Case brief

What is this about?

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Idbi Bank v. Mr. Chand Ansari and Others

Case brief

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