Allowed

Punjab National Bank v. M/s Kushawaha Poltri Form and others

DRT6 Apr 2023OA/20/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal allowed an ex-parte application filed by Punjab National Bank against two defendants for recovery of Rs.36,17,150.73 along with interest. The defendants failed to appear and contest the claim despite summons and public notice. The court determined the debt and ordered the issuance of a Recovery Certificate.

What did the court decide?

The debt of Rs.36,17,150.73 with interest at 12.10% p.a. compounded monthly from 31.12.2021 till realization is ordered to be recovered jointly and severally from the respondents.

Punjab National Bank versus M/s Kushawaha Poltri Form and others — Banking and Recovery | DRT (2023)

¶1

OA 20 of 2022 IJI

¶2

DRT,PATNA

¶3

Debts Recovery Tribunal, Patna

¶4

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

¶5

Presiding Officer : Shri Kaushalendra Yadav

¶6

OA Case no. : 20 of 2022

¶7

Punjab National Bank, Branch Office Kabilashpur Branch,DistrictKaimur

¶8

....... Applicant

¶9

¶10

Mis Kushawaha Poltry Form through its proprietor Brij Mohan Kushawaha @ Brijmohan Singh Sio RamBachan Singh @ Ramvachan Kushawaha Registered Office situated at Lasara, Post OfficeChhewari, Police Station-Ramgarh, District-Kaimur-82111 O.

¶11

Brij Mohan Kushawaha @ Brijmohan Singh Sio Ram Bachan Singh @ Ramvachan Kushawaha at Lasara, Post Office-Chhewari, Police Station-Ramgarh, District-Kaimur-821110. (PAN no. DPCPS4870E.

¶12

...Defendants.

¶13

Present:

¶14

For the Applicant Shri S.K. Tiwari, Advocate For the Defendants : None

¶15

Dated: 06.04.2023

¶16

JUDGMENT

¶17

1- The Applicant bank has made this application uls 19 of the Recovery of Debts and Bankruptcy Act, 1993 (here-in-after referred to as Act) on 31.12.2021 against the defendants to recover its debts from defendants ofRs.36,17,150.73 as on 30.11.2021 alongwith pendente-lite and future interest at the contractual rate from 1.12.2021 with costs till realization.

¶18

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

¶19

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

¶20

The applicant bank body corporate constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970, having its Corporate Office Plot no. 4,Sector-l0,Dwarka New Delhi-II 0075 and inter alia a branch Office at Branch Office at Kabilashpur Branch, District-Kaimur

¶21

The defendant no. 1 is proprietorship firm and defendant no. 2 is proprietor. The defendant no. 1 & 2 approached the bank for term loan of Rs.9 lakh and cash credit of Rs.12 lakh and against collateral security of immovable property for business trading in Poultry farming. Upon consideration of the loan proposal for the business term loan of RS.9 lakh and cash credit ofRs.12lakh on 16.1.2016. The defendants executed the various loan documents i.e. hypothecation of goods, PDR, consent

OA 20 of 2022 IJI

DRT,PATNA

clause and guarantee agreement. The defendant no. 2 was created equitable mortgage details given at page 16 in schedule-A of OA.

¶26

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 6.7.2017

¶27

Thus the total liability in the loan account is Rs.36,17,150.73 with pendentelite and future interest at the contractual rate from 1.12.2021till the realization.

¶28

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.

¶29

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.

¶30

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 23.5.2022, 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.

¶31

On perusal of the case records, it is clear that on 23.5.2022, 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 12.7.2022in "Prabhat Khabar" newspaper.

¶32

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 20.10.2022.

¶33

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 Md. Aqueel Jawed Khan, Chief Manager of the applicant bank. The details of documents are as follows. :-

¶34

SI.No	Description	of	Date of	Amount	Signature of	Ex.!
	photocopies Documents		Execution		executant	Ann. No.

OA 20 0(2022 IJI

DRT, PATNA

1	Loan application	16.1.2016	Rs.21lakh	defendants	1
2	Sanction letter	16.1.2016	Rs.21lakh	bank	2
3	Hypothecation of goods to secure cash credit facility	16.1.2016	Rs.21 lakh	defendants	3
4	term loan agreement	16.1.2016	Rs.9lakh	defendants	4
5	letter of undertaking	16.1.2016	Rs.21 lakh	defendants	5
6	Consent clause	...	...	defendants	6
7	PDR	16.1.2016	Rs.21 lakh	defendants	7
8	Copy of sale deed no. 07/2016	2.1.2016	...	...	8
9	An application	17.7.2017	...	defendants	9
10	recall notice	14.9.2017	...	bank	10
11	Demand notice	21.72017	...	bank	11
12	Balance and security confirmation letter	31.12.2018	...	defendants	12
13	statement of account	as on 30.11.2021	Rs.36,17,150.73	bank	13

¶39

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.

¶40

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.

¶41

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.

¶42

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 pecuruary jurisdiction to adjudicate upon the present application.

¶43

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 6.7.2017 and also executed the balance and confirmation letter on 31.12.2018, whereas the present application has been filed on 31.12.2021. 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.

OA 20 of 2022 IJI

DRT,PATNA

9- In the affidavit of Md. Aqueel Jawed Khan, 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.

¶48

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.

¶49

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.

¶50

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.

¶51

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.

¶52

12The applicant bank has sought for recovery of a sum of Rs.36,17,150.73 with cost and further interest at the contractual rate from 1.12.2021till realization.

¶53

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.

OA 20 of 2022 IJ)

DRT,PATNA

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.

¶58

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.

¶59

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-

¶60

"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."

¶61

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.36,17,150.73 alongwith pendente-lite and future interest @12.10% p.a. with compounded monthly rests from 31.12.2021 (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 exparte and debt is determined with costs against the defendants. The defendants is hereby jointly and severally, ordered to pay the applicant bank it's debts amounting to Rs.36,17,150.73 alongwith pendente-lite and future interest @12.10% p.a. with compounded monthly rests from 31.12.2021 (The date of filing of this O.A.) till realization of the entire sum due and recoverable with costs.

¶62

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

¶63

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 ~~

OA 20 of 2022[JI

DRT,PATNA

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.

¶68

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.

¶69

Parties are directed to appear before the Recovery Officer, DRT, Patna on 19.5.2023. The order be communicated accordingly.

¶70

Judgment signed, sealed, dated and pronounced in the open court on this oe" Day of April, 2023. -:

¶71

-: .o v}
. \ "'~
JY D"

¶72

Dictated & corrected by me.

¶73

[Kaushalendra Yadav] Presiding Officer Debts Recovery Tribunal, Patna

Punjab National Bank v. M/s Kushawaha Poltri Form and others

Case brief

What is this about?

What did the court decide?

Punjab National Bank v. M/s Kushawaha Poltri Form and others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ms Sai Enterprises and Others versus Indian Bank

Punjab National Bank versus M/s The Root Collection and Others

Punjab National Bank versus M/s Satyam Sivam Sundram Rice Mill and Others

State Bank of India versus Shree Sai Minerals

Punjab National Bank versus M/s Nawada Furniture Udyog and others

Punjab National Bank versus M/s Rishi Eat Udyog and others