Allowed

Idbi Bank v. M/s Keshav Kumar Keshri and Others

DRT22 Feb 2023OA/247/2022

Case brief

AI extract

What is this about?

The DRT allowed an ex-parte debt recovery application filed by IDBI Bank Ltd. against the defendants. The court determined the debt of Rs. 65,43,882.47 along with interest and directed the issuance of a recovery certificate for realization through the Recovery Officer.

What did the court decide?

Defendants ordered to pay Rs. 65,43,882.47 with simpliciter interest and costs; Recovery Officer directed to issue certificate and realize dues.

Idbi Bank versus M/s Keshav Kumar Keshri and Others — Cheque Dishonour | DRT (2023)

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DRT,PATNA

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OA 247 of 2022 IJ)

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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. : 247 of 2022

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IDBI Bank Ld. Ashiana Branch, Ashiana Digha Road, Patna-25 .

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....... Applicant

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Vs.

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1. MIs Keshav Kumar Keshri through its proprietor Sri Keshav Kumar Keshri S/o Sitaram Prasad at & Post-Khairimal, P.S.-Pipra, District-East Champaran, Pin-845416.

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Sri Keshav Kumar Keshri S/o Sitaram Prasad At and Post - Khairimal, P.S.-Pipra, District-East Champaran, Pin-845416 and also at 402, S.P. Griham Apartment, Ramnagari, Khajpura, Patna-25.

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Smt. Chanchala Kumari W/o Mr. Keshav Kumar Keshri Rio Sirsa Patti,P.O.-Shitalpur, P.S.-Chakia, District-East Champaran, Pin845412 and also at C/o Brahmadeo Singh 3D Jagdhanand Residence Apartment, Ramnagari Road, Ashiana Patna-14.

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...Defendants.

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Present:

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For the Applicant : Shri Santosh Satyarthi, Advocate For the Defendants : None

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Dated: 22.02.2023

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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 Act) on 25.3.2022 against the defendants to recover its debts from defendants of Rs.65,43,882.47 upto 1.3.2022 alongwith pendente-lite and future interest at the contractual rate with monthly rests from 2.3.2022 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 IDBI Bank Ltd. a company incorporated and registered under the companies Act 1956 (1 of 1956) and a banking company within the meaning of section 5© under the Banking regulation Act 1949 carrying the business of Banking and having its registered office at IDBI Tower, WTC complex, Cuffe Parade, Mumbai-400005 and and a Branch Office at Ashiana Branch, Ashiana Digha Road, Patna-25 engaged in the business of Banking including the business of advancing

DRT,PATNA

OA 247 of 2022 IJ]

money. Amongst other, retails recovery is a wing to file this case under it's Jurisdiction, located at 3 rd Floor, Kashi Place, Dak Bunglow Road, Patna..

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The defendant approached the bank on 15.12.2014 and submitted an application requesting to grant loan of Rs.75 lakh. On receipt of the said application on 27.12.2014 the bank sanctioned said loan of Rs.63 lakh as cash credit facility for running business. The rate of interest as agreed for said loan was then 12% p.a. payable monthly floating or as revised by the bank from time to time. The defendant no. 3 also mortgaged her landed property in favour of the bank by way of equitable mortgage as details given at page 10 of OA. The defendants executed the various loan documents i.e. DP note, delivery letter, common guarantee deed, letter of indemnity, declaration, DP note, continuing security letter and take delivery letter.

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All the transactions were entered in the ledger of the loan accounts in the name of the defendants 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 2.5.2021.

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Thus the total liability in the loan account is Rs.65,43,882.47 as on 1.3.2022 with pendentelite and future interest at the contractual rate of interest with monthly rests from 2.3.2022 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 defendants by registered/speed post on 16.5.2022, 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.

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On perusal of the case records, it is clear that on 16.5.2022, 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 4.8.2022 in "Dainik Jagaran" newspaper.

DRT,PATNA

OA 247 of 2022 [J)

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 14.9.2022.

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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 Md. Irfan Azam Khan, AGM of the applicant bank. The details of documents are as follows. :-

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SI.No	Description of photocopies Documents	Date of Execution	Amount	Signature of executant	Ex.! Ann. No.
1	certificate under banker's book of evidence	...	...	...	1
2	application	15.12.2014	Rs.751akh	defendant no. 1&2	2
3	pan card and aadhar card	...	...	...	3
4	sanction letter	27.12.2014	Rs.631akh	bank	4
5	DP note	27.12.2014	Rs.631akh	defendant no. 1&2	5
6	take delivery letter	27.12.2014	...	defendant no. 1&2	6
7	hypothecation cum loan agreement	27.12.2014	...	defendant no. 1&2	7
8	common guarantee deed	27.12.2014	Rs.631akh	defendant no. 2&3	8
9	letter of authority	27.12.2014	...	defendant no. 1&2	9
10	letter of indemnity	...	...	defendant no. 3	10
11	affidavit of defendant	2.12.2014	....	defendant no. 2&3	11
12	sanction letter	29.12.2016	Rs.631akh	bank	12
13	declaration	21.8.2017	Rs.631akh	defendant no. 3	13
14	memorandum of entry	21.8.2017	...	bank	14
15	copy of sale deed no. 3648	30.11.2010	...	defendant no. 3	15
16	mutation order , LPC, rent receipt	...	...	...	16
17	CERSAI	...	...	...	17
18	sanction letter	30.6.2018	...	bank	18
19	sanction letter	22.2.2020	...	bank	19

OA 247 of2022 [J)

DRT,PATNA

20	DP note	22.2.2020	Rs.631akh	defendant no. 2&3	20
21	continuing security letter	22.2.2020	...	defendant no. 2	21
22	take delivery letter	24.2.2020	...	defendant no. 2	22
23	acknowledgemen t of debt	24.2.2021	...	defendant no. 2	23
24	request letter	25.11.2020	...	defendant no. 2	24
25	sanction letter	26.2.2021	...	bank	25
26	valuation report	...	...	...	26
27	demand notice	3.6.2021	...	bank	27
28	recall notice	26.7.2021	...	bank	28
29	Statement of account	as on 1.3.2021	Rs.65,43,882.47	bank	29

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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 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 pecuniary 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 2.5.2021, whereas the present application has been filed on 25.3.2022 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.

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9- In the affidavit of Md. Irfan Azam Khan, AGM of the applicant bank, has stated that he is well acquainted with the facts of the case and

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OA 247 of 2022 [J]

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.

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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 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.65,43,882.47 with cost and further interest at the contractual rate from 2.3.2022 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

DRT,PATNA

OA 247 of 2022 IJ]

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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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-

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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.65,43,882.47 alongwith pendente-lite and future interest @13.50% p.a. with compounded monthly rests from 25.3.2022(The date of filing of this O.A.) till realization. So the final order may be passed accordingly, to meet the ends ofjustice.

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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 debts amounting to Rs.65,43,882.47 alongwith pendente-lite and future interest @13.50% p.a. with compounded monthly rests from 25.3.2022 (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 paying the aforesaid adjudicated dues to the applicant bank to secure the ends ofjustice.

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OA 247 of 2022 [J)

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, Patna on 1.4.2023.The order be communicated accordingly.

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Judgment signed, sealed, dated and pronounced in the open court on this 22nd Day of February, 2023.

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Dictated & corrected by me.

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[Kaushalendra Yadav]
Presiding Officer
Debts Recovery Tribunal, Patna

Idbi Bank v. M/s Keshav Kumar Keshri and Others

Case brief

What is this about?

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Idbi Bank v. M/s Keshav Kumar Keshri and Others

Case brief

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