Allowed

Idbi Bank v. M/s Md. Rushi Kamal and others

DRT11 Jul 2023OA/130/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal allowed the bank's ex-parte application under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993, determining the debt of Rs. 46,95,493/- along with interest and costs against the borrowers and guarantors due to their failure to appear and contest the case.

What did the court decide?

Recovery of Rs. 46,95,493/- plus interest at 10.85% p.a., costs of Rs. 49,000, and issuance of a Recovery Certificate.

Idbi Bank versus M/s Md. Rushi Kamal and others — Contract and Commercial Disputes | DRT (2023)

OA 130 of 2022 IJ]

DRT,PATNA

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. : 130of 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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Mis Md. Rushi Kamal proprietor Md. Rushi S/o Mohammad Kamal At Muzaffar, Ahmad Nagar, Madhopara, Khazanchi Hat, Pumea, District-Pumea, Pin code 854301, PAN no. CCGPR9129B.

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Mrs Reejavana Khatun W/o Mohammad Kamal, at Muzaffar, Ahmad Nagar, Madhopara, Khazanchi Hat, Pumea, District-Pumea, 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.46,95,493/- 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 its Regional office at Khalifbad Chowk, Bhagalpur and Branch Office at Brajesh Automobiles Building, Ravi Commercial Complex, Nauratan Hata, N.H. 31 Pumea, P.S.-Purena, District-Pumea, Pin code 854301 .

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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 on 15.12.2015 for grant of Mudra Loan ofRs.lO lakjh under

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DRT,PATNA

OA 130 of 2022 IJ)

PMMY. The bank sanctioned the loan of Rs.l 0 lakh on 17.12.2015. The defendants executed the various loan documents in favour of the bank. The defendant no. 1 approached the bank for cash credit limit of Rs.30 lakh on 17.9.2016 and the bank sanctioned the same on 17.9.2016. The defendants executed the various loan documents in favour of the bank. The defendant no. 2 mortgaged his property details given at page 14 in schedule II of the OA. The defendants further approached the bank for renewal of the said loan time to time for the period 21.8.2017 to 16.3.2018, further 5.3.2018 to 4.3.2019 and 4.9.2019 to 3.9.2020 and accordingly the bank considered the request of the defendants time to time and sanctioned and renewed the said account for the cash credit limit ofRs.30 lakh for the said purpose.

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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 30.5.2021.

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Thus the total liability in the loan account is Rs.46,95,493/- 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- Ll/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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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

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OA 130 of 2022 [J)

DRT,PATNA

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	15.l2.2015	Rs.I0 lakh	defendant no. 1	1 '
2	sanction letter	17.12.2015	Rs.10 lakh	bank	2
3	Hypothecation	23.12.2015	Rs.10 lakh	defendant no. 1	3
4	Loan application	17.9.2016	Rs.30 lakh	defendants	4
5	sanction letter	17.9.2016	Rs.30 lakh	bank	5
6	DP note	19.9.2016	Rs.30 lakh	defendant no. 1	6
7	DP note	19.9.2016	Rs.30 lakh	defendant no. 1	7
8	letter of hypothecation	19.9.2016	Rs.30 lakh	defendant no. 1	8
9	Letter of guarantee	19.9.2016	Rs.30 lakh	defendant no. 2	9
10	letter of creation of mortgage	...	...	...	10
11	Acknowledgeme nt of debts	27.12.2018	...	defendant no. 1	11
12	Acknowledgeme nt of debts	4.9.2019	...	defendant no. 1&2	12
13	sanction letter	4.9.2019	Rs.30 lakh	bank	13
14	recall notice	3.7.2021 12.7.2021	...	bank	14
15	legal notice	24.7.2021	...	bank adv.	15
16	statement of account	as on 31.12.2021	Rs.46,95,493/-	bank	16

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

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OA 130 of 2022 IJ]

DRT, PATNA

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 30.5.2021 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.

OA 130 of 2022 IJ)

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.46,95,493/- with cost and further interest at the contractual rate from 1.1.2022 till 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.46,95,493/- alongwith pendente-lite and future interest @10.85% p.a. with compounded monthly rests from 15.2.2022(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 exparte and debt is determined with costs against the defendants. The defendants are hereby jointly and severally, ordered to pay the applicant

OA 130of2022IJI

DRT, PATNA

bank it's debts amounting to Rs.46,95,493/- alongwith pendente-lite and future interest @10.85% 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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Judgment signed, sealed, dated and pronounced in the open court on this 11thDay of July, 2023.

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Dictated & corrected by me.

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~ \,)'Y> [Kaushalendra Yadav] Presiding Officer Debts Recovery Tribunal, Patna

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

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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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RJj:COVERY CERTIFICATE UNDER SECTION 19(1) READ WITH SECTION I9(W OF THE RECOVERY OF DEBTS & BANKRUPTCY ACT, 1993, AS AMENDED FROM TIME TO TIME.

RC No. 507/2023

Case No: OAl130/2022

In the Matter of:

(CH- I) IDBI BANK

BRAJESH AUTOMOBILES BUILDING RAVI COMMERCIAL COMPLEX NAURATAN HATA N H 31 PURNEA PS PURNEA

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Applicant(s)

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PURNIA ,BIHAR -854301

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

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To, (CD-I) MIS MD. RUSHI KAMAL AND OTHERS.

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Proprietor Md. Rushi Kamal Sio Mohammad Kamal Sio Mohammad Kamal At- Muzaffar, Ahmad Nagar.Madhopara Khazanchi Hat, Purnea Purnia ,BIHAR -85430 I

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Defendantt s)

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(CD- 2) MRS. REEJAVANA KHATUN

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WIO MOHAMMAD KAMAL AT-MUZAFFAR, AHMAD NAGAR, MADHOPARA KHAZANCHI HAT, PURNEA, DISTRICTPURNEA, DISTRICT- PURNEA PIN CODE854301

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RecoveryCertificate for Rs 4695493.00 I Rup~ Q!!jy_J

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SixLakhs Ninety FiveThousands Four Hundred NinetyThree

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In terms of final order dated 11107/2023 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. 4695493.00 along with cost, expenses and interest from the 15102/2022 i.e. date of filing 1 with effective date of the OAl130/2022 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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Effective Date	Order Date	Liability Type .	Interest (as on Order ...Date)	! RC Amount(Rs.)	emar
				695493.00
				695493.00

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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 mortgagedlhypothecated 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 ASmSH 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 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 of the Tribunal on this 11/07/2023

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v PRESIDING OFFICER 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

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(GPOA), Ashiana Digha Road, Patna-800025.

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SCHEDULE TO RECOVERY CERTIFICATE MEMO OF COSTS

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RC No. 507/2023

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Case No: OA/130/2022

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Applicant(s): IDBI BANK

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Versus

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Defendant(s): MIS MD. RUSHI KAMAL AND OTHERS

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.,.

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	tin Rs.
plication
s(Inc. Publication)
er/ReceiverNaluation/Security Fee
iscellaneous Charges
Total Costs: Rs.	49000

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Place: PATNA

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Date: 11107/2023

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PRESIDIN~CER DEBTS RECOVERY TRIBUNAL PATNA

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Note: Strike out whichever is not applicable

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Date of order or proceeding	DEBTS RECOVERY TRIBUNAL, PATNA Order with the Signature of the Court	Office action taken with dat .
	OA 1300f2022
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. preSid~cer
11.07.2023	Certificate_uls_ 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. presidin~cer

Idbi Bank v. M/s Md. Rushi Kamal and others

Case brief

What is this about?

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Idbi Bank v. M/s Md. Rushi Kamal and others

Case brief

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