Allowed

Bank of India v. Shree Vinayak

DRT27 Jun 2023OA/203/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal, Patna allowed the bank's application for recovery ex-parte after the respondent failed to appear. The Debt was determined, and a recovery order with attachment of assets was passed under Section 19(22) of the RDDB Act.

What did the court decide?

Recovery certificate issued for Rs.33,71,887.80 with future interest @11.15% p.a.; mortgaged assets attached and directed to be recovered by the Recovery Officer.

Bank of India versus Shree Vinayak — Execution and Attachment | DRT (2023)

OA 203 0(2022 IJI

DRT, PATNA

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Debts Recovery Tribunal, Patna

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Karpuri Thakur Sadan, Aashiana Digha Road at PATNA-800025

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Presiding Officer : Shri Kaushalendra Yadav

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OA Case no. : 203 of 2022

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Bank of India, Munger Branch, Bata Chowk, Munger-811201.

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....... Applicant

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Vs.

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.,. Shree Vinayak, proprietor Deepika,Wlo Vinayak Joshi, 65, Neemtalla Sitla Mandir, Ward no. 13, Munger-811201., resident at Gulzar Pokhar, Ward no. 13,Munger-811201.

...Defendant.

Present:

For the Applicant : Shri Satya Ranjan Sinha, Advocate For the Defendant : None

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Dated: 27.06.2023

JUDGMENT

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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 21.2.2022 against the defendant to recover its debts from defendant of Rs.33,71,887.80 as on 20.2.2022 alongwith pendente-lite and future interest at the contractual rate from 21.2.2022 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 body corporate constituted under Banking companies (Acquisition and Transfer of Undertakings) Act; 1970 having . its Head office at Star House, C-5 Bandra Kurla Complex, Bandra East, Mumbai-400051 and several Branches throughout the country including one Branch at Bata Chauk, Munger Branch in the town and DistrictMunger.

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The defendant is a proprietorship firm under the sole proprietorship of defendant shree Vinayak through its proprietor Deepika. The defendant is engaged in the several business as Shree Vinayak as Micro Enterprises Manufacturing small Enterprises and some other work etc. The defendant approached the bank with an application together with details for sanction of cash credit loan of Rs. 19.50 lakh and term loan of Rs.5lakh on 2.9.2019 and demand loan sanctioned ofrS.1.95 lakh dated

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OA 203 0(2022 IJI

DRT,PATNA

6.6.2020 and term loan (GECL) sanction of Rs.3 lakh on 5.6.2020. The

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defendants executed the various loan documents.

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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 19.10.2021

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Thus the total liability in the loan account is Rs.33,71,887.80 with pendentelite and future interest at the contractual rate from 21.2.2022 till ,. .,.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- 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 defendant by registered/speed post on 21.5.2022, and summon/notice issued requiring the defendant to show-cause within 30 days of the

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-.-service of summon/notice as to why relief prayed for, should not be granted.

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Despite the registered summon/notice, the defendant has appeared before this Tribunal to contest the case. The sufficient time has been given to the defendant to file written statement, but he failed to file WS so far. Therefore the Tribunal has passed an order to Closethe right to file written statement of the defendant, on 29.9.2022.

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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 of Shri Shyamanand Kumar, Branch Manager of the applicant bank. The details of documents

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"I" • are as follows. :-

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SI.No	Description	of	Date of	Amount	Signature of	Ex.!
0	photocopies Documents		Execution		executant	Ann. No.
1	Loan application		16.8.2019	CC Rs.19.50 lakh TLRs.5Iakh	defendant	1

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OA 2030(2022 IJI

DRT,PATNA

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2	sanction letter	2.9.2019	CC Rs.19.50 lakh TLRs.5lakh	bank	2
3	DP note, Hypothecation agreement, PDR	2.9.2019	'Rs.24.50 lakh	defendant .'	3
4	Legal notice	19.11.2021	...	Adv.	4
5	statement of account	as on 20.2.2022	Rs.33,71,887.80	bank	5

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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 ... • the presentno any stay granted by any Higher Court, in respect of the proceedings ofOA 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 19.10.2021 , whereas the present application has been filed on 21.2.2022.

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... . Even, it is counted for the purpose of Limitation, then it is established that the applicant bank has filed the case"'withinthe 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 Shyamanand Kumar, Branch 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

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",.SIt/IOU OffIce' lOTS fttlllVI fit ltd'! 'M~• •• ,.l1li"

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DRT,PATNA

OA 203 of 2022 [J]

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

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... ..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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... • 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.33,71,887.80 with cost and further interest at the contractual rate from 21.2.2022 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

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OA 203 of 2022 IJ)

DRT,PATNA

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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 see 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 defendants jointly +and severally of Rs.33,71,887.80 alongwith pendente-lite and future interest @11.15% p.a. with compounded monthly rests from 21.2.2022 (The date of filing of this O.A.) till realization. So the final order may be passed accordingly, to meet the ends of justice.

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ORDER

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 debts amounting to Rs.33,71,887.80 alongwith pendente-lite and future interest @11.i5% p.a. with compounded monthly rests from 21.2.2022 (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 paymg 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

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DRT,PATNA

OA 203 of 2022(J]

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,

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• Patna on 30.8.2023. The order be communicated accordingly.

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Judgment signed, sealed, dated and pronounced in the open court on this 2ih Day of June, 2023.

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Dictated & corrected by me.

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W\t:\v/

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[Kaushalendra Yadav] Presiding Officer Debts Recovery Tribunal, Patna ".4,dlng Offfc,,' .. n ftt(;()Vrf:'lI l;;';j;'iWU.: •• US""

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FORMNO.9 [See Regulation 24(1)]

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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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RECOVERY CERTIFICATE UNDER SECTION 19(1) READ WITH SECTION 19(22) OF THE RECOVERY OF DEBTS & BANKRUPTCY ACT,l22J., AS AMENDED FROM TIME TO TIME.

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RC No. 345/2023 IN

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Case No: OA/203/2022

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In the Matter of: (CH- 1) BANK OF INDIA BRANCH BATACHOWK MUNGER ,BIHAR -0

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Applicant( s)

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

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To, (CD- 1) SHREE VINAYAK .

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Proprietor Deepika wife ofVinayak Joshi 65, Neemtalla Sitla Mandir, Ward No.13 Munger-81120 I "Resident at- Guizar Pokhar, Ward No.13, Munger ,BIHAR -81 1201

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Defendant( s)

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RecoverY.Certificate for Rs 3371887.80 [ Rupees Thirty. Three Lakhs SeventY.One Thousands Eight Hundred Eigb!y. Seven And Paise Eigb!y. OnIY_1

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In terms of final order dated 27/06/2023 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. 3371887.80 along with cost, expenses and interest from the 21102/2022 i.e. date of filing 1 with effective date of the OA/203/2022 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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Int. Type/Mod	Order Date	t(R ) moun s.	Liability Type	Interest (as on Order Date)	RC mount(Rs.) Remark
Compound Interest (Monthly)	1/02/2022,27/06/2023	371887.80	ully	Interest	3371887.80

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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 ~ortgaged 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 MANOJ KUMAR, Recovery Officer, DEBTS RECOVERY TRIBUNAL PATNA on 30108/2023.

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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 27/06/2023

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PRE~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. 345/2023

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Case No: OA/203/2022

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Applicant(s): BANK OF INDIA

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Versus

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Defendant(s): SHREE VINAYAK

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		tin Rs.
2.
3.
4.
5.	llaneous Charges
	Total Costs: Rs.	6000

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Place: PATNA

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Date: 27/06/2023

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PRESIDI~@'6{PICER DEBTS RECOVERY TRIBUNAL PATNA

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Note: Strike out whichever is not applicable

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Bank of India v. Shree Vinayak

Case brief

What is this about?

What did the court decide?

Bank of India v. Shree Vinayak

Case brief

What is this about?

What did the court decide?

What the court decided

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