Allowed

Canara Bank v. Saroj Kumar Thakur and others

DRT18 Apr 2023OA/221/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal, Patna allowed an ex-parte application filed by Canara Bank under Section 19 of the RDB Act to recover a loan of Rs. 37,48,833/- plus pending and future interest from two defaulting borrowers who failed to contest the proceedings.

What did the court decide?

The defendants are ordered to pay Rs. 37,48,833/- with pending and future interest and costs. A Recovery Certificate is directed to be drawn up and issued to the Recovery Officer for realization.

Canara Bank versus Saroj Kumar Thakur and others — Contract and Commercial Disputes | DRT (2023)

¶1

OA 221 of 2022 IJ]

¶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. : 2210f2022

¶7

Canara Bank, Retail Asset Hub, s" Floor, Luv Kush Tower, Exhibition Road, Patna-l.

¶8

. Applicant -Bank

¶9

Vs.

¶10

1 Saroj Kumar Thakur S/o Sri Nand Kishore Thakur, Rio Flat No. 603 and 604, Block-E, Chhatrapati Shivaji Greens, Branch Road of Bhogipur, Ektapuram, P.S.- Gopalpur, District-Patna, Pin-804453 and Al48, Jagat Shree Apartment, Near Tiwary Bechar, P.O. + P.S.Kankarbagh, Patna-20

¶11

2 Mrs. Nibha Thakur Wlo Saroj Kumar Thakur,Rlo Flat No. 603 and 604, Block-E, Chhatrapati Shivaji Greens, Branch Road of Bhogipur, Ektapuram, P.S.- Gopalpur, District-Patna, Pin-804453 and A/48, Jagat Shree Apartment, Near Tiwary Bechar, P.O. + P.S.-Kankarbagh, Patna-20

¶12

...Defendants.

¶13

Present: For the Applicant : Shri Manoj Kumar, Advocate For the Defendants : None

¶14

Dated: 18.04.2023

¶15

JUDGMENT

¶16

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 11.3.2022 against the defendants to recover its debts from defendants of Rs.37,48,833/- upto 18.2.2022 alongwith pendente-lite and future interest at the contractual rate from 19.2.2022 with costs till realization.

¶17

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

¶18

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

¶19

The applicant bank is a body corporate, constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 and having its Central Office at 112, J.C. Road, Bangalore-560002 and a Branch Office as Retail Asset Hub, s" Floor, Luv Kush Tower, Exhibition Road, Patna-l.

¶20

The defendants approached the bank for seeking housing loan for purchase of two flats vide application dated 1.1.2015. Upon consideration of the loan proposal for housing loan ofrs.38 lakh and same was sanctioned by the bank on 7.1.2015. The defendants executed the various loan documents i.e. housing loan agreement, PDR and

OA 2210(2022 [J)

DRT,PATNA

undertaking. The rate of interest on the loan charged @10.20% p.a. calculated on daily balance of the loan account at monthly rests provided that the bank shall at any time and from time to time be entitled to vary margin and the base rate at its discretion and that the defendants would pay the effective rate of interest.

¶26

A first charge by way of hypothecation of the entire goods, movable and immovable and other assets present and future including document of title to the goods and other assets such as book debts receivables by way of cash assistance and cash incentives under the cash incentive scheme or any other scheme, claims including claims by way of refund of customs duties under the duty draw back credit scheme or any other schemes, bills invoices, documents, contract, insurance policies, guarantees engagements, securities, investments, and rights uncalled capital and all machinery present and future of such form satisfactory applicant bank.

¶27

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 18.10.2020.

¶28

Total amount due against the borrowers in the loan account is Rs.37,48,833/with interest at the contractual rate from 19.2.2022 till the date of full payment.

¶29

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.

¶30

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.

¶31

4- V/s 19 (4) of the Act & Rule of the DRT [Procedure] Rules, 1993, copies of application & paper book were sent by this Tribunal to the defendants by registered/speed post on 17.5.2022, 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.

¶32

On perusal of the case records, it is clear that on 17.5.2022 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 21.7.2022 in "Aaj" newspaper.

'0\v\

OA 2210(2022 [J]

DRT,PATNA

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 6.12.2022.

¶38

5- To prove its case, the applicant Bank has referred vanous photocopies of documents before this Tribunal. The applicant bank has also given evidence on affidavit by way of affidavit of Sri Om Narayan, Divisional Manager of the applicant bank. The details of documents are as follows. :-

¶39

SI.No	Description of photocopies Documents	Date of Execution	Amount	Signature of executant	Ex.! Ann. No.
1	Loan application	1.1.2015	Rs.38lakh	defendants	1
2	sanction letter	7.1.2015	Rs.38lakh	bank	2
3	Housing loan agreement	7.1.2015	Rs.381akh	defendants	3
4	PDR	7.1.2015	Rs.38lakh	defendants	4
5	housing loan agreement	7.1.2015	Rs.38lakh	defendants	5
6	Undertaking	."	...	...	6
7	copy of sale deed no. 12310 & 12313	30.12.2014	...	.,.	7
8	Draft Tripartite agreement	7.1.2015	...	...	8
9	Legal notice	21.2.2022	...	bank adv.	9
10	Statement of account	as on 18.2.2022	Rs.37,48,833/-	bank	10

¶40

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.

¶41

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.

¶42

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.

¶43

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\

OA 221 0£2022 [J)

DRT,PATNA

tribunal. Therefore, this Tribunal has territorial as well as pecumary jurisdiction to adjudicate upon the present application.

¶49

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 18.10.2020 , whereas the present application has been filed on 11.3.2022. 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.

¶50

9- In the affidavit of Sri Om Narayan, Divisional 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.

¶51

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.

¶52

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.

¶53

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.

¶54

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.

¶55

12The applicant bank has sought for recovery of a sum of Rs.37,48,833/- with cost and further interest at the contractual rate from 19.2.2022till realization.

OA 221 of 2022 [JI

DRT,PATNA

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.

¶60

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.

¶61

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.

¶62

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-

¶63

"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."

¶64

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.37,48,833/- alongwith pendente-lite and future interest @l 0.20% p.a. with compounded monthly rests from 11.3.2022 (The date of filing of this O.A.) till realization. So the final order may be passed accordingly, to meet the ends ofjustice.

¶65

ORDER

¶66

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 it's debts amounting to Rs.37,48,833/- alongwith pendente-lite and future interest @10.20% p.a. with compounded monthly rests from 11.3.2022 (The date of filing of this O.A.) till realization of the entire sum due and recoverable with costs.

¶67

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

~\II\

OA 221 of 2022 [J[

DRT,PATNA

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.

¶73

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.

¶74

Parties are directed to appear before the Recovery Officer, DRT, Patna on 01.06.2023. The order be communicated accordingly.

¶75

Judgment signed, sealed, dated and pronounced in the open court ~ on this 18th Day of April, 2023.

¶76

Dictated & corrected by me.

¶77

\ f:/Y~ \ Q\V\ "Y

¶78

[Kaushalendra Y adav] Presiding Officer Debts Recovery Tribunal, Patna

Canara Bank v. Saroj Kumar Thakur and others

Case brief

What is this about?

What did the court decide?

Canara Bank v. Saroj Kumar Thakur 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

Sujit Dattatray Yande Anr. versus Asrec (India) Limited

Icici Bank Limited versus Rtam Construction Pvt. Ltd. and Ors.

Union Bank of India versus M/s Om Sai Mini Rice Mill and Others

Idbi Bank versus Sri Laxmi Kant Ojha and Ohters

Ms Kishan Agro Enterprises and Others versus Bank of Baroda (Vijaya Bank)

Union Bank of India versus Ms Heramba Enterprises Private Limited