Allowed

Indian Bank v. Sri Sanjib Changmai

DRT6 Apr 2023OA/205/2022

Case brief

AI extract

What is this about?

In an application for issuance of a recovery certificate under Section 19 of the RDBFI Act, 1993, the Tribunal held that the defendant was liable to repay the outstanding loan amount of approximately Rs. 24.77 lakhs with interest and costs, and directed the issuance of a recovery certificate. The court found the documents proved the loan and default, establishing the bank's right to recovery.

What did the court decide?

Issuance of Recovery Certificate for Rs. 24,76,995.33 along with pendent lite and future interest @10.20% p.a. and costs.

Indian Bank versus Sri Sanjib Changmai — Specific Performance | DRT (2023)

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o.a 2o5zo22DRT-Gu*ahari

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IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

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(North Eastern Region)

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(Tribunal of Assam, Nagaland, Meghalaya, Manipur, Mizoram, Arunachal pradesh & Tripura)

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Before Shri Shiv Sharan Dubov. Presidino Officer

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O.A. No. 205/2022

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ln the matter of -

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lndian Bank (Erstwhile Allahabad Bank) Sivasagar-2 Branch, Sivasagar, MaMari Patty, Opp. Central Market, District-Sivasagar, Assam, Pin-785640.

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.Applicant

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Vs.

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l. Sri Saniib Changmai, S/o Chitradhar Changmai, BG Road, Sivsagar-785640 P.O.ONGC Colony, District-Sivsagar, Assam.

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Defendant

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Presence of the Counsel

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For the Applicant Sri A Parvez, Sri Sanjit Singha, Sri Dipanka Gogoi, Sri Bidul Roy, Advocates

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For the Defendant

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Mr. R. Phukan, Mr. R. Mahanta Advocates

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Dated :06/0/U2023

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JUDGMENT

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This is an application under section 19 of the^{Recoveryof DebtsDue to} Banks and Financial lnstitutions^{Act, '1993 filed by the lndian Bank (Erstwhile} Allahabad Bank), Sivasagar^{2 Branch, Sivasagar,MaMari Patty, Opp. Central Market,} District-sivasagar, Assam,^{Pin-785640,with a prayerto issueRecovery Certificate} for the sum of Rs. 24,76,995.33^{(RupeesTwenty Four Laca Seventy Six Thousand} Nine Hundred Ninety^{Fivo 8nd PaiseThirtyThree) only as on 31-03-2022 against} the defendant^{payableby him together with interests pendentlite and future interesl} thereon at the contraciual^{rate till reatizationplusall costs in favour of the applicant} bank.

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A few facts^{giving riseto the present applicationare asunder.,Sk;} c LA44,.&Vf,j4 "'*"n#*loa-l)3 ORT, Guwehatil⁽

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On 25-09-2013 the defendant Sri Sanjib Changmai had apptied before the applicant bank for sanction of a Term Loan of Rs.7.28 Lacs only with intention to purchase a vehicle. Considering the loan application the competent authority of the applicant bank had sanctioned a sum of Rs.7.28 Lacs only to the defendant as Term Loan vide sanclion letter dated 30.09.2013. The defendant had availed the sanctioned laon by opening and operating Loan Account No. 50'173047563 with the applicant bank. As per the sanction letter dated 30.09.20'13 the applicable rate of interest for the sanctioned loan was fixed al10.2oo/o p.a. with monthly rests. The primary security for the sanctioned loan was hypolhecation of the vehicle purchased. The sanctioned loan was further covered under CGTMSE coverage. The defendant executed necessary loan documents on the same day on 30-09-2013, such as Demand Promissory Note for Rs. 7.28 Lacs and Agreement for Medium Term Loan (Hypothecation of VehiclesNessels).

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On 01-10-2013 the defendant had applied before the applicant bank for sanction of another Term Loan of Rs. 7.28 Lacs only with intention lo purchase another vehicle. Considering the loan application, the mmpetent authority of the applicant bank had sanctioned Term loan Rs. 7.28 Lacs only to the defendant vide sanction letter dated 04-10-2013, which the defendant had availed by opening and operating Term Loan Account No. 50'173523645 wilh the applicant bank. As per the sanction letter dated 04-'10-2013 the applicable rate of interest for the sanctioned loan was fixed at 10.20% p.a. with monthly rests. The primary security for the sanctioned loan was hypothecation of the vehicle purchased. The sanctioned loan was further covered under CGTMSE coverage. The defendant executed ne@ssary loan documenls on the same day on 30-09-2013, such as Demand Promissory Note for Rs. 7.28 Lacs and Agreement for Medium Term Loan (Hypothecation of VehicbsNessels).

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On 25-0'l-2014 the defendant had further requested the applicant bank for sanction of another loan of Rs.3.13 Lacs for^purchase of another vehicle. Considering the loan application, the competent authority of the applicant bank had sanclioned Term Loan of Rs.3.13 Lacs to the defendant vide sanction letter dated 28-01-2014. As per the sanction letter dated 28-01-2014 the applicable rate of interest for the

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sanctioned loan was tixed at 10.2eo/o p.a. with monthly rests. The defendant had availed the sanctioned laon by opening and operating Loan Account No. 50'189468153 with the applicant bank. The defendanl executed necessary toan documents on the same day on 2g_01-2014, such as Oemand promissory Note for Rs. 3.13 Lacs and Agreement for Medium Term Loan (Hypothecation of Vehiclesn /essels).

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On 29-09-2016 & on 27_09_2019 the defendant has executed Acknowledgement of Oebt and Security with respecl to the first loan of Rs 7.2g Lacs sanctioned vide Sanction Letter dated 30_09_2013 and second loan of Rs 7.28 Lacs sanctioned vide Sanction letter dated A4_10_20,t3. Further, on 31_12_20,16 & 3,1-12_ 2019 the defendant has executed letter regarding Acknowledgement of Debt w.r.t. third loan of Rs.3.13 Lacs only sanctioned vide Sanction letter dated 28_0,l_2014 interalia admitting his debts and liabilities towards the applicant bank.

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The defendant had availed the said Loan facilities from lhe appticant bank but have not paid the outstanding loan amount as per terms and condiUons as agreed upon with the applicant bank, in spite of repeated demands and request by the applicant bank. As the defendant failed to repay the loan amount the said loan accounts became NPA on 10-06-2018. After the accounts became NpA the applicant bank issued notices for repayment of the due amount, but ihe defendants have neither chosen for repayment of the remaining instalments in the Term Loan accounts nor approached to the applicant bank for setfling the loan account .

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The applicant bank thus became constrained to file the present Original Application for the recovery of Rs. 24,26,995.33 (Rupees Twenty Four Lacs Sovonty Six Thousand Nine Hundred Ninety Five and paise Thirty Throe) only as on 3i_ 03-2022 against the defendant payabte by him together with interests pendent lite and future interest till realization plus all costs.

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After filing of the OA the Tribunal issued notices upon the defendant through registered post and the applicant bank filed service report on 27-07-2022 and brought on record the postal receipts along with track consignment report. Learned counsel for the defendant had appeared on 03.08.2022 and filed his written statement on

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01.09.2022, On 05.01.2023 learned counsel for the applicant bank has submitted that he does not want to file rejoinder. Thereafter the matter was posted for hearing.

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Supporting the claim of the applicant bank Sri Babloo Kumar, Chief Manager of the Applicant Bank has filed eviden@ on afiidavit coupled with the security documents marked as Exhibit AW-1/1 to AW-.1/33 and A,, supporting the claim of the applicant

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bank, details of which are :-

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Sl.No.	Nameofthe documents	ExhibitNo
I	LoanApplicationOated 2StOg-gtzott-	.
?	SanclionLetter Dated30y'09/20.t3	AW-lt2
3	Acknowledgementof SanctionLeEerdated 30/Og2O13
4	Lrerrranorror!rssoryNote dated 30/09/2013
5	Agreementfor MediumTermtoindat,ed30/09/2013
0	LoanappcaUondated01I1Ol2O13
7	Sanctron Letter datedO4l1Ot2O.13
8	Acknowledgementof SanctrontetteidaiedMltnllorr	AW-1/8
I	Demand Promissory Note daied4/10/208	AW-1/9
'10	Agreementfor MediumTermLoEndaiedO4l.10/2013-	AW-1/10
11	I^{Loanappcirlfon}oarcd2510112014
12		AW-1112
13		AW-1/13
14	Demand Promissory Note dated28/01/20.t4--
15	Agreementfor MediumTermLoanOateOZglOlpota	AW-1/15
16	Acknowledgementofdebts daied29109/2016--	AW-1/16
17	- Acknowtedgementofdebts dated2709120i9---
'18	AcknowtedgementofdebtsdatedTfrg/2016--	AW-'t/18
19	49@9"!e!99nre!r^ofAeUtsOireJZS/09/20I6	AW-1/'r9
20	--- AcknowtedgementofdeotsoateagtZZolO ^-	AW-'tt20
21	-- Ac&99!9!g94e4-q1!qbrs?ateas1/irpit9^_	AW-1121
22	Applicant bank'sNotice datedO.t/021202i-	AW-122
23	Demand Notice dated23l09/2orit1A/.N,rqniriaTi-	AW-1t23
24	DemandNotice 5017352364s aateOzglosdo2tl;1.Loax^-A,/cNo.	AW-1t24
25	DemandNotice 50189468'153 daled 23logl2\21w.rr.rorrl- No.	AW-1125
	Defendant'sLetterdaEd12t.t0/2021	AW-1126
27	oraremenroTAccount vtde account no. 50173047563	AW-1127
28	lnterestcatcutationchartw.r.t. A7tM-5o-T7i047S63-	AW-1t28
29	StatementofAccountVideaiiountno.S0i73523645-	AW-1t29
30	lnterestCatcutation Chart w.r.t.toanA,/cNo.50175E23648	AW-1/30
31	StatementofAccount Vide account no.50'18946g153-	AW-1/31
32	trtreresluarcutallonunanw.r.t.loanA,/cNo	AW-1t32
33	Detailsofclaim	AW-1/33
34	AUrnonryLeleroateo03_12_2021

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The defendant has appeared and contested the claim of the applicant bank by filing written siatement stating interaria that due to rinanciar hardships, the defendant could not repay his outstanding dues. The defendant accordingly, vide his letter dated 24r10D018 intimated that he is one of the ordest customer of the sivasagar Branch and maintaining four ac@unts, he had avaired roan from the sivasagar Branch and with the loan amount he had purchased two vehicles which were engaged in ONGC on hjre.

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O A 2052022oRT-Gwahati

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However, as the hiring period was over and as no further extensions has been given as done usually, both the vehicles have been kept standing. Moreover, ONGC was yet to clear the dues for which loan amount could not be^paid on time. lt is further stated by this answering defendant that he was served with three notices ftom the court of the Oistrict and Sessions Judge, Sivasagar Branch to appear belore ihe National Lok Adalat on Ml09fZU9. The defendant submitted his reply dated 1410912019 wherein he mentioned his hardships in making the payment of loan amount. The defendant at no point of time refused to pay the loan amount. However, due to the financial hardships, the defendant muld not handle the present situatjon. The defendant never denies the liability on his part for repayment of the loan amount in respecl of his deceased mother. lf not otheMise prevented, the defendant is always ready and willing to pay the loan amount. lt is well within the knowledge of the applicant bank that the defendant has time and again requested the bank to dispose of the vehicle in^question so that he could clear^{the. dues.} However, the applicant bank did not^pay any^heed to the^{requestof the defendant.} Hence, there is no^question of failure and/or negligence on^{part of thedefendant in} repayment ofthe loan amount.

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Heard the leamed counsel for the applicant bank who^{prayedfor issuance of} Recovery Certificate against the defendant as^{per pleadings madein the Application,} supported by evidence on affidavit of^{their witnesswho affirmedon oath the execution} of the security and other documents^{by the defendants and also execulion of their own} documents relied upon, which have^{been marked exhibits.}

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Heard the learned counsel^{for the defendantwho prayedfor dismissalof the} original application.

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I have carefully^perused the^{documentson record including original application,} evidence on affidavit^{and exhibited documents as well as written statement filedby the} defendant.

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It is observed that the defendant^{has not denied the availmenl of loan,execution} of documents and his^{signatureson the same.}

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It is evident from^{thestatementof accountfiled by theapplicanlbankthat the} defendant has defaulted^{in repaymentof the loan.lf there is defaultin repaymentof the}

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lY,:.kpr,Yu

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O A 205/2022lDRI-Guwahati

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loan the applicant bank has every right to^{proceed againstthe defendantfor realizationof} the outstanding dues. Hence I have^{no hesitationto hold that this original applicationis} maintainable.

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The applicant bank has^produced on remrd the copies of the statement of account in respect of the defendant, duly certilied under Bankers' Books Evidence Ac1.^The applicant bank by the evidence-on-affidavit of Sri Babloo Kumar, the Chief Manager of the applicant bank had deposed the correctness of the affidavit and certified copy of the account. Beyond that nothing more has to be deposed by an officer of the bank. lt is thus obvious that apart from the entries of the Books of account there are ample evidence on the record to corroborate the said entries.

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The documents executed by the^principal borrower from time to time are duly proved by the applicant bank and the witness of the applicant. lt is also found that the claim is within the^period of limitation. The applicant has sufficient cause of action for filing the instant application due to disbursemenuavailment of loan to/by the defendant and on default in repayment of the loan by the defendant, inspite of demands made, as^per exhibited documents filed by the applicant bank.

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Considering the facts and circumstances of the case, I am of the considered view that the documents filed by the applicant bank are supporting the claim of the applicant bank and establishing the^liability of^{the defendant.lt is provedthat the} defendant is liable to^pay to the applicant^{bankthe claim made} in^{the Original} Application. The loan was obtained and documents^{have been executedon} 30-09-2013, U}lo-2013 and^28-01-20'14. On^{29-09-2016& on 27-09-2019the} defendant has executed Acknowledgement^{of Debt and Securitywith respect to the} first loan of Rs 7.28 Lacs sanctioned^{vide Sanction Letter dated 30-09-2013and} second loan of Rs 7.28 Lacs sanctioned^{videSanctionletter dated 04-10-2013.} Further, on 31-12-2016 & 31-12-2019^{the defendanthas executed letterregarding} Acknowledgement of Debt^{w.r.t. third loan of Rs.3.13Lacs onlysanctionedvide} Sanction letter daled 28-01-2014^{interalia admittinghis debts and liabilitiestowards} the applicant bank. The account^{became NPA on 10-06-2018 and the OA has been}

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filed on 09-06-2022. Hence, the OA is filed welt within the period of limitation and this Tribunal having a^jurisdiction to adjudicate the Original Application.

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Considering the version of Sri Babloo Kumar, the applicant's witness and all the documents marked as exhibits, including duly certified copy of the statement of account along with interest calculation sheet maintained by the applicant Bank in it,s regular course of business, I hold that the applicant is entifled to get the Recovery Certificate as prayed for.

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ln the result, the present Original Application No.2OS ol2022 is allowed with cost as under :-

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(i) The sole defendant is liable to pay to the applicant bank a sum of Rs. 24,76,995.33 (Rupees Twonty Four Lacs Seventy Six Thou3and Nine Hundred Ninety Fivo and^paise Thirty Three) with pendentelite and future interest @10.20% p.a. with monthry rests from 01-04-2022 ti rhe date ot fufl paymenUrealization and also cost of the application.

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ii) The charge of the certiricated amount be kept alive on fhree hypothecated

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vehicles i.e. (a) MAHTNDRA Dt 32OO bearing Registration No. AS 06 AC 7132, Engine No. BTD4F91154, Chassis No. MESGE2BTDD3F,t S i3; (b) MAHINDRA Dt 3200 bearing Registration No. AS 06 AC 7133, Engine No. 8fO4F90744, Chassis No. MESGE2BTDD3E1 4944i (cl HYUNDA| EON bearing Registration No.AS-04-M-OSO6; as mentioned in the Schedute of the OA till lhe amount is realized in full under the certificate.

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iii) The applicant bank is entifled to proceed against the secured items towards recovery of the debts.

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iv) The applicant bank is also entifled to proce€d against the personal assels and properties of the defendant towards recovery of the dues.

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v) The applicant bank is entitled to the costs of the O.A. which inctudes the advocate fees of the applicant bank. Applicant is directed to file the cost memo within 2 weeks from today.

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vi) lssue Recovery Certificate accordingly for a sum Rs. 24,76,995.33 (Rupees

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Twenty Four Laca Seventy Six Thousand Nine Hundred Ninety Five and

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.S[r,rcl'c44,""'tr 1- oblo+lL\ I Preslding Offcerl^I ORT, Guv6hati

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O.A 201202aoRT4wah!lr

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Paise Thirty Three) only in favour of the applicant bank against the sole

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defendant.

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vii) Communicate mpy of this order to the concemed parties.

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This order is dictated and corrected by the undersigned.

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Judgment dated 66 April 2023, signed and pronounced in the Tribunal today

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under my signature.

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Copy of the JudgmenuFinal Order be uploaded in the Tribunal's Website and

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Iile be consigned to Record Room.

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SIirgoa<r-)"tru; Ctrll4lY\ /l (Shiv Sharan Dubly;^I - , Presiding Officsr DRT, Guwrhati.

Indian Bank v. Sri Sanjib Changmai

Case brief

What is this about?

What did the court decide?

Indian Bank v. Sri Sanjib Changmai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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Case details

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