Debts Recovery Tribunal allowed ex-parte application by IDBI Bank Ltd. for recovery of loan dues. Adjudicated debt including interest was determined against defaulting borrowers, and recovery certificate was directed to be issued.
Recovery certificate issued for Rs. 23,45,441/- plus interest with attached mortgaged assets.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
DRT,PATNA
OA 133 of 2022 [J]
Debts Recovery Tribunal, Patna,
Karpuri Thakur Sadan, Aashiana Digha Road at PATNA-80002S
Presiding Officer : Shri Kaushalendra Yadav
OA Case no. : 133of 2022
IDBI Bank Ld. Brajesh Automobiles Building, Ravi Commercial Complex, Nauratan Hata, NH-31, Pumea, P.S.-Purena, District-Pumea . ....... Applicant
Vs.
... Defendants.
Present:
For the Applicant : Shri J .K.Roy, Advocate For the Defendants : None
Dated: 30.03.2023
JUDGMENT
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.23,45,4411- upto 31.1.2022 alongwith pendente-lite and future interest at the contractual rate from 1.2.2022 with costs till realization.
2- The application has been duly registered and numbered as above.
3- The brief facts of the case of the applicant bank as stated in the application are as under-
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 in New Dak Bunglow Road, Patna and Its Regional Office at Khalitbad Chowk, Bhagalpur and its Branch Office amongst other places at Brajesh Automobiles Building, Ravi Commercial Complex, Nauratan Hata, NH-31, Pumea, P.S.-Purena, District-Pumea.
The defendant no. 1 is a borrower and the defendant no. 2 is guarantors. The defendant no. 1 used to provide liquidity and to avoid distress sell of Agri commodity, on hypothecation of the agriculture
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DRT,PATNA
OA 133 of 2022 [J)
products. The defendants approached the bank and made an application on 26.8.2016 for cash credit loan of rs.25 lakh. The defendants executed the various loan documents i.e. DP note, letter of hypothecation, letter of guarantee. Defendant no. 1 has mortgaged her property details given at page 13 in schedule -II of ~A. The defendants no. 1 approached the bank for renewal of the said cash credit limit of Rs.25 lakh and submit the application on 19.2.2018. Bank considered the requests of the defendants and renewed the cash credit limit on 21.2.2018. The defendants no. 1 approached the bank for renewal of the said cash credit limit of Rs.25 lakh and submit the application on 31.8.2019. Bank considered the requests of the defendants and renewed the cash credit limit on 31.8.2019. The bank further sanctioned and disbursed FITL loan of Rs.l,3 5,6611-to the defendant no. 1 on 1.9.2020as per the government announcement for revival of the MSME Sector on account of Covid situation.
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.
Thus the total liability in the loan account is Rs.23,45,441/- as on 31.1.2022 with pendentelite and future interest at the contractual rate of interest with monthly rests from 1.2.2022till the realization.
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.
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.
4- D/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 6.6.2022, 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.
The registered summons/notices have already been send to the defendants and despite notices service by the registered post, which is evidence on the tracking report. 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 service is sufficient of the defendants, proceed ex-parte against defendants on 10.8.2022
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DRT,PATNA
OA 133of2022(J]
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 Rajeev Ranjan, AGM of the applicant bank. The details. of documents are as follows. :-
| SI.No | Description of photocopies Documents |
Date of Execution |
Amount | Signature of executant |
Ex.! Ann. No. |
|---|---|---|---|---|---|
| 1 | Loan application | 26.8.2016 | Rs.36lakh | defendants | 1 |
| 2 | sanction letter | 30.8.2016 | RS.25lakh | bank | 2 |
| 3 | DP note | 30.8.2016 | Rs.25lakh | defendant no. 1 |
3 |
| 4 | DPNote | 30.8.2016 | Rs.25lakh | defendant no. 1 |
4 |
| 5 | Letter of hypothecation |
30.8.2016 | Rs.25lakh | defendant no. 1 |
5 |
| 6 | letter of guarantee |
30.8.2016 | RS.25lakh | defendant no. 1&2 |
6 |
| 7 | letter of creation of mortgage |
... | ... | ... | 7 |
| 8 | sanction letter |
21.2.2018 | RS.25lakh | Bank | 8 |
| 9 | Acknowledgeme nt of debt cum revival |
21.2.2018 | ... | defendant no. 1&2 |
9 |
| 10 | sanction letter | 31.8.2019 | ... | bank | 10 |
| 11 | Acknowledgeme nt of debt |
31.8.2019 | ... | defendant no. 1 |
11 |
| 12 | Legal notice | 24.7.2021 | ... | bankadv. | 12 |
| 13 | Statement of account |
as on 31.1.2022 |
Rs.23,45,4411- | bank | 13 |
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.
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.
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.
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 V:;'?
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DRT,PATNA
OA 1330(2022 [J)
tribunal. Therefore, this Tribunal has territorial as well as pecuruary jurisdiction to adjudicate upon the present application.
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.
9- In the affidavit of Shri Rajeev 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.
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.
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.
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 facilities, documents were executed by the defendants and facilities were availed by the defendants as stated in the application.
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DRT,PATNA
OA 133 of 2022 [J]
12The applicant bank has sought for recovery of a sum of Rs.23,45,4411-with cost and further interest at the contractual rate from 1.2.2022till realization.
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.
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.
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.
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-
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.23,45,4411- alongwith pendente-lite and future interest @11.30% 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
..
In the result, the application of the applicant bank is, allowed ex-parte and debt is determined with costs against the defendants. The defendants are hereby jointly and severally, ordered to pay the applicant bank it's debts amounting to Rs.23,45,441/- alongwith pendente-lite and future interest @11.30% 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. (\ / V~"7
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DRT,PATNA
OA 133 of 2022 [J]
It is made clear that any amount deposited by the defendants, be deducted in the claim amount, if not deducted.
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.
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.
Parties are directed to appear before the Recovery Officer, DRT, Patna on 11.5.2023.The order be communicated accordingly.
Jud~ment signed, sealed, dated and pronounced in the open court on this 30 t Day of March, 2023. c-:
Dictated & corrected by me.
J
t"-l' '" \Y'v)
[Kaushalendra Y adav] Presiding Officer Debts Recovery Tribunal, Patna
2 issues framed by the court
Whether debt recovery application filed by bank against defaulting borrowers is maintainable and admissible evidence supports the claim.
Whether defendants are barred from alienating mortgaged assets during recovery proceedings before adjudicated dues are paid.
Colour shows how this judgement treated each authority
Indian Bank Vs. Blue Jaggers Estates LimitedExplained¶16
Indian Bank Vs. Blue Jaggers Estates Limited and others [2010] 8 SCC 129 · Who else cites this
3 provisions across 3 enactments
IDBI Bank Ltd.
Md. Firdos Alam Ansari
Mr. Afroj Alam
Kaushalendra Yadav
As recorded by the court registry
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