Allowed

Punjab National Bank v. Pushpa Memorial Education and Charitable Trust and others

DRT25 Apr 2023OA/165/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal, Patna allowed an ex-parte application filed by Punjab National Bank to recover a debt of Rs. 70,97,602/- from a Trust and its trustees/guarantors who failed to repay a term loan for a school building.

What did the court decide?

Debt of Rs. 70,97,602/- with interest and costs realized jointly and severally; Recovery Certificate directed to be issued; assets attached.

Punjab National Bank versus Pushpa Memorial Education and… — Banking and Recovery | DRT (2023)

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QA 165 of 2022 [J]

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DRT,PATNA

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Debts Recovery Tribunal, Patna Karpuri Thakur Sadan, Aashiana Digha Road Patna-800025

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Presiding Officer : Shri Kaushalendra Yadav

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OA Case No. : 165of 2022.

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Punjab National Bank, Branch Office Khabra Road, Muzaffarpur

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... Applicant

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Pushpa Memorial Education & Charitable Trust through its trustee Smt. Rupam kumara Wlo Sri Santosh Kumar Jha, Santosh Kumar Jha Sio Sri Diwakar Jha, Narayan Prasad Sharma, Sio Sri Shajanand Sharma, Yadvendra Mishra Sio Sri Radha Krishna Mishra and Arvind Kumar Thakur Sio Sri Ram Chandra Thakur, Head Office at Majhauliya Chowk; PS Sadar; District Muzaffarpur, PAN No. AACTP2705P.

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Smt. Rupam Kumari Wlo Sri Santosh Kumar Jha: Rio Khabra Road: Gannipur: PO Ramna: PS Kazi Mohammadpur: District Muzaffarpur(Trustee & Guarantor)

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Santosh Kumar Jha Wlo Diwakant Jha: Rio Khabra Road: Gannipur: PO Ramna: PS Kazi Mohammadpur: District Muzaffarpur: PAN No. AOOPJ6124G,( Trustee &"Guarantor).

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Narayan Prasad Sharma Sio Sri Shajanand Sharma: Rio Nayatola: PS Kazi Mohammadpur: District Muzaffarpur: (Trustee)

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Yadvendra Mishra Sio Sri Radha Krishna Mishra: Rio Kalambag Road:Behind Old Employment Exchange: PS Kazi Mohammadpur: District Muzaffarpur: (Trustee).

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Arvind Kumar Thakur S/o Sri Ram Chandra Thakur: Rio At +PO Muraul: PS Sakra: District Muzaffarpur: PAN No,AISPT0824H. (Trustee & Guarantor)

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Diva Kant Jha Sio Late Nishi Kant Jha: Rio Khabra Road; Gannipur: PO Ramna: PS Kazi Mohammadpur: District Muzaffarpur: PAN No. AEDPJ8034Q ( Guarantor)

... Defendants.

Present:

For the Applicant : Shri Arvind Kumar, Advocate For the Defendants None

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Dated: 25.4.2023

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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

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OA 1650(2022 [J]

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DRT,PATNA

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Act) on 21.02.2022 against the defendants to recover its debts from defendants of Rs 70,97,602/- as on 20.02.2022 along with Pendente-lite and future interest at the contractual rate from 21.02.2022 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 bank, a body corporate constituted under the Banking Companies (Acquisition and Transfer of undertaking) Act 1970,having its Head Office at Plot No. 04: Sector 10: Dwarka New Delhi-ll0075 and having one of its SASTRA Office at Circle Office Muzaffarpur, Aghoriya Bazar, Muzaffarpur, District Muzaffarpur( Bihar). BO Khabra Road, Muzaffarpur.

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The defendant No. 1 is Trust within the meaning of Trust Act 1882 and duly constitutedl registered under the Trust Act 1882,having its Head Office at Majhauliya Chowk, PS Sadar: Muzaffarpur, District Muzaffarpur . The defendants Nos. 2 to 5 are Trustee of defendant No. lITrust, and its working is fully and completely under their control. The defendant No. 1 is a Trust having its business place at Muzaffarpur: District Muzaffarpur, Pin 842001represented through its Trustee. Defendant No. 1 carries on business of School and does all necessary works in this regard. The loan application and other documents were executed by Defendant no. 1 through its trustee No. 3,6 and 7 approached the applicant bank and submitted loan application dated 29.04.2016 for Term Loan Limit Rs.99.86 lakh for the construction of school building. On the aforesaid request of defendant no. 1 and after considering the worthiness of the guarantors offered by the defendant No.3, 6 and 7 the applicant Bank sanctioned Term loan facility of Rs.99.86 lakh on 29.4.2016. The defendants executed ~ the various loan documents i.e. hypothecation, agreement of guarantee, and supplementary agreement and also defendant no. 2 to 5 further offered its property being description of mortgage property details give at page 8 ofOA

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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 31.03.2021.

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Thus the total liability in the loan account is Rs 70,97,602 1- with Pendent-lite and future interest @10.45% P.A. from 21.02.2022 till the realization.

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OA 165 of 2022 (J]

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DRT,PATNA

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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- U/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 21.05.2022 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 21.05.2022 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 08.07.2022 in" Dainik Jagran" 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 Tribunal has passed an order to Proceed ex-parte against the defendants on 22.9.2022.

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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 by Shri Satyendra Kumar Jha, Chief Manager of the applicant bank. The details of documents are as follows. :-

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SI.No	Description of Documents Photocopies	Date of Execution	Amount ~	Signature of Executants	Ex.! Ann. No.
1	Deed No. 3182	05.09.2012	....	. ....	1
2	Loan application	29.04.2016	Rs.99.86 lakh	def. no. 3 ,6 &7	2
3	Limit Sanction letter	29.04.2016	Rs.99.86 lakh	bank	3
4	Loan Agreement	29.04.2016	Rs.99.86 lakh	Defl,3,6 &7	4
5	Guarantee Agreement	29.04.2016	Rs.99.86 lakh	Def 1,3,6,7	5
6	Supplementary Agreement	29.06.2019	Rs.99.861akh	Def 1,3,6,7	6

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OA 1650(2022 (J]

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DRT,PATNA

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7	Deeds,28147 Deeds 14750	4.12.2009 23.01.2016	...	defendants	7
8	Balance and security confirmation letter	18.03.2019	....	Def 1,3,6,7	8
9	Statement of Account	as on 20.2.2022	Rs.70,97,602/-	bank	9

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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. 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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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 pecumary 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 31.03.2021, whereas the present application has been filed on 21.02.2022. 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 Satyendra Kumar Jha, Chief Manager 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.

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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. ... ~~

OA 165 of 2022 [J)

DRT,PATNA

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 along with application filed under sub section 1 of section 19 by the applicant.

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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.70,97,602/- with cost and further interest at the contractual rate from 01.02.2022 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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OA 1650(2022 IJ]

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DRT,PATNA

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16In Indian Bank Vs. Blue Jaggers Estates Limited and others [2010] 8 SCC 129,the Honorable 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 fepay 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 defendants jointly and severally of Rs 70,97,602/- along with pendente-lite and future interest @10.45% p.a. with compounded monthly rests from 21.2.2022 (The date of filing of this OA) 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 defendants are hereby jointly and severally, ordered to pay the applicant bank its debt amounting to Rs 70,97,602/- along with pendente-lite and future interest @10.45% p.a. with compounded monthly rests from 21.2.2022 ( The date of filing of this OA) 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 Registrarl Sub- registrar to endorse the charge over the secured assets.

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Let a certificate of recovery be drawn up forthwith -andput 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

OA 165 0(2022 (J]

•

DRT,PATNA

Officer. The Recovery Officer 1" 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 19.6.2023.The order be communicated accordingly.

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Judgment signed, sealed, dated and pronounced in the open court on 25th day of April 2023

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.,.

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Dictated &corrected by me.

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~\ryO'Y')

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[Kaus alendraYadav] Presiding Officer Debts Recovery Tribunal, Patna

Punjab National Bank v. Pushpa Memorial Education and Charitable Trust and others

Case brief

What is this about?

What did the court decide?

Punjab National Bank v. Pushpa Memorial Education and Charitable Trust and others

Case brief

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What did the court decide?

What the court decided

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