Allowed

Hdfc Bank v. M/s Jaiswal Enterprises and Others

DRT12 Jul 2023OA/278/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal, Patna disposed of an original application filed by HDFC Bank Ltd. under Section 19 of the RDB Act. Proceeding ex-parte against the defendants, the Tribunal adjudicated the debt amounting to Rs.23,17,888.77 and issued a recovery certificate.

What did the court decide?

Debt of Rs.23,17,888.77 along with pendente-lite and future interest @8.25% p.a. with compounded monthly rests; recovery certificate issued; mortgaged/hypothecated assets attached.

Hdfc Bank versus M/s Jaiswal Enterprises and Others — Banking and Recovery | DRT (2023)

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OA 278 of 20221J]

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DRT,PATNA

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Debts Recovery Tribunal, Patna

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Karpuri Thakur Sadan, Aashiana Digha Road Patna-800025

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Presiding Officer : Shri Kaushalendra Yadav

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OA Case No. 278 of 2022

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HDFC Bank Limited, Bimla Sadan, Holding no. 8011432, Ward No, 37, Exhibition Road, Patna,Pin-800001

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........Applicant

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1. MIs Jaiswal Enterprises, a proprietorship concern through its Proprietor Shiv Shankar Choudhary, having itsunitlshop atShivshankar Chaudhary Main Road, Triveni Ganj, Supaul, DistrictSupaul, Pin Code-852139.

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Shiv Shankar Choudhary (Proprietor/ Guarantor), Son of Yogendra Choudhary, residing at Town! Village- Ward no. -12, Triveniganj, Latauna, Supaul, District- Supaul, Pin- Code-852139, Bihar, Near B.S.N.L. Tower.

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And also at:- Shiv Shankar Choudhary Son of Yogendra Choudhary, residing at TownIVillage- Shivshankar Chaudhary Main Road, Triveni Ganj, Supaul, District, Supaul, Pin Code-852139, Bihar.

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Yogendra Chaudhary alias Jogendra Choudhary ( Guarantor/ Mortgagor) Kameshwari Choudhary, residing at Townlvillage- Ward no. 12, Triveniganj, Supaul, District- Supaul, Pin Code- 852139, Bihar, Near B.S.N.L. Tower,

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........ Defendants

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For the Applicant : Shri Bhola Shankar, Advocate For the Defendants : None

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Dated: 12.07.2023

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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 30.04.2022 against the defendants to recover its debts from defendants of Rs.23,17,888.77 as on 28.02.2022 along with Pendentelite and future interest at the contractual rate from 01.03.2022 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 HDFC Bank Ltd. a company incorporated under the companies Act, 1956, carrying on banking business under License Granted by RBI and registered under banking regulation Act, 1949,

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OA 278 of2022(JI

DRT,PATNA

having its registered office at HDFC Bank House, Senapati Bapat Marg, Lower Parel (West), Mumbai-400013 and one of its Branch Office amongst other places at HDFC Bank limited Bimla Sadan, Holding no. 801/432, ward no. 37, Exhibition Road, Patna-800001.

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The defendants had approached the applicant for grant of various creditlbanking facilities in furtherance of their business activities. The defendant No. 1 is a proprietorship concern, defendant no. 2 is the proprietor of defendant No. 1 firm and defendant Nos 2 and 3 are guarantors of credit facility obtained by defendant No. 1 firm. Defendant Nos. 2 and 3 have granted their personal guarantee to repay the said outstanding dues in favour of the applicant Bank and defendant no. 2 also mortgaged his immovable property in favour of the applicant bank to secure the credit facilities availed by the defendant No.1. The applicant was pleased to accept the Loan application of defendants and sanction Cash Credit facility to the tune of Rs.18.00 lakhs as per the terms and conditions duly stipulated in the sanction letter on 03.11.2018. The defendants in order to avail the said facility had executed the documents in favour of the applicant Bank, The defendant as such hypothecated his property, Stock, Book Debts and other Current Assets both present & future. The defendant no. 3 in order to secure the said credit facility had created equitable mortgage over the property. Defendant no. 3 deposited title deeds of the aforesaid immovable properties in favour of the Bank.

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The defendants approached the applicant Bank for additional Fund WCTL under Guaranteed Emergency Credit Line (GECL) scheme and by way of GECL Sanction Letter the same has been granted. As such by way of GECL Sanction Letter dated 06.07.2020 the applicant additionally granted said Term Loan for Working Capital to the tune ofRs. 5,91,0001-. The defendants in order to avail the said facility had executed the documents in favour of the Applicant Bank. The defendant no. 3 again confirm the said mortgage in favour of the Bank and created equitable mortgage in favour of the Bank on 09.08.2020 by depositing of title deeds. The applicant states that the defendants approached the Applicant Bank for renewal of the said Cash Credit facility and GECL Facility. As such, by way of renewal sanction letter dated 26.02.2021 the applicant further renewed the Cash Credit facility to the tune of 18,00,000/- and GECL Term Loan Facility to the tune of 5,91,000/-. The applicant states that the defendants agreed upon the terms and conditions mentioned in the renewal sanction letter dated 26.02.2021.

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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 05.01.2022.

OA 278 of20221J]

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Thus the total liability in the loan account is Rs.23,17,888.77 with Pendent-lite and future interest contractual rate from 01.03.2022 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 27.05.2022 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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Despite the registered notices/summons have already been sent to the defendants and despite service by the registered post, which is evident from the tracking report and the sufficient time has been given to the defendants to defend their case, the defendants failed to appear and to file WS. As service is sufficient of the defendants, proceed ex-parte against defendants on 3.12.2022.

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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 by Shri Pappu Thakur, Manager of the applicant bank. The details of documents are as follows. :-

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SI.No	Description of Documents Photocopies	Date of Execution	Amount	Signature of Executants	Ex.! Ann. No.
1	Loan application	20.09.2018	Rs.18.00 lakhs	Defendant nos. 1 & 2	1
2	Sanction letter	03.11.2018	Rs.18.00 lakhs	bank	2
3	Supplementary letter- guarantee	12.11.2018	Rs.18.00 lakhs	Defendant nos.l,2 &3	3
4	Master facility Agreement	12.11.2018	Rs.18.00 lakhs	Defendant nos.l & 2	4
5	Power of Attorney	09.11.2018	......	Defendant nos. 1 & 2	5
6	Deed of Hypothecation	09.11.2018	Rs.18.00 lakhs	Defendant nos. 1 & 2	6
7	Memorandum	12.11.2018	...	Defendant nos. 1 & 2	7
8	Declaration	12.11.2018	Rs.18.00 lakhs	Defendant no. 3	8
9	Mortgage documents	21.01.1998	.....	defendant no. 3	9

OA 278 of20221J]

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10	Memorandum	12.11.2018	....	Defendant no. 3	10
11	GECL sanction letter	06.07.2020	Rs.5.91 lakhs	bank	11
12	Hypothecation Agreement	14.07.2020	....	Defendant nos. 1&2	12
13	Declaration cum undertaking	14.07.2020	.....	Defendant nos. 1&2	13
14	Undertaking	14.07.2020	Rs.5.91 lakhs	Defendant nos. 1&2	14
15	memorandum	09.09.2020	Rs.18.00 lakhs	Defendant no. 3	15
16	Renewal of Sanction letter	26.02.2021	Rs.23.91 lakhs	bank	16
17	Recall Notice	07.04.2022	.....	Bank adv.	17
18	Statement of account	as on 28.2.2022	Rs.23,17,888.77	bank	18

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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 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 05.01.2022 whereas the present application has been filed on 30.04.2022. 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 Shri Pappu Thakur, 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

OA 278 of 20221J]

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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 (l0) 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 along with 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.23,17,888.77 with cost and further interest at the contractual rate from 01.03.2022 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.

OA 278 of20221J]

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.

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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 Honorable 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 cas~ 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.23,17,888.77 along with pendente-lite and future interest @8.25% p.a. with compounded monthly rests from 30.04.2022 (The date of filing of this OA) till realization. So the final order may be passed accordingly, to meet the ends of justice.

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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 debt amounting to Rs.23,17,888.77 along with pendente-lite and future interest @8.25% p.a. with compounded monthly rests from 30.04.2022 ( The date of filing of this OA) 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 of justice.The mortgaged or hypothecated assets to secure the loan in question are

OA 278 of2022(J]

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.

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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, Patna on 13.9.2023.The order be communicated accordingly.

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Judgment signed, sealed, dated and pronounced in the open court ~ on 1th Days of July 2023

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Dictated &corrected by me.

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\ ~ """)\ o/~ [Kaushalendra Yadav] Presiding Officer Debts Recovery Tribunal, Patna

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FORM NO.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(7) READ WITH SECTION 19(1l) OF THE RECOVERY OF DEBTS & BANKRUPTCY ACT,J.22l, AS AMENDED FROM TIME TO TIME.

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BC No. 518f2023

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Case No: OAf278f2022

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In the Matter of:

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(CH- I) HDFC BANK

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BIMLA SADAN HOLDING NO 801 432 WARD

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Applicant(s)

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EXHIBITION ROAD

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PATNA ,BIHAR -80000 I

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

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To,

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(CD- 1) MIS JAISWAL ENTERPRISES AND

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OTHERS.

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a proprietorship concern through its Proprietor Shiv

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Shankar Choudhary

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having its unit/shop at- Shivshankar Chaudhary Main Road.Triveni Ganj, Supaul Supaul,BIHAR -852139

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(CD- 2) SHIV SHANKAR CHOUDHARY

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(PROPRIETOR/GUARANTOR)

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SON OF YOGENDRA CHOUDHARY, RESIDENT AT TOWNNILLAGE - WARD NO - 12, TRIVENIGANJ, LATAUNA, SUPAUL, DISTRICT- SUPAUL, PIN CODE- 8~139, BIHAR NEAR B.S.N.L TOWER.

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Defendant(s)

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Also A!.

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AND ALSO AT:- SHIV SHANKAR CHOUDHARY SON OF YOGENDRA CHOUDHARY, RESIDING AT TOWNNILLAGESHIV SHANKAR CHAUDHARY MAIN ROAD, TRIVENI GANJ, SUPAUL, DISTRICTSUPAUL, PIN CODE- 852139, BIHAR

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(CD- 3) YOGENDRA CHAUDHARY

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(GUARANTOR/MORTGAGOR) KAMESHWARI CHOUDHARY, RESIDING AT TOWNNILLAGE - WARD NO.- 12, TRIVENIGANJ, SUPAUL, DISTRICT- SUPAUL, PIN CODE- 852139

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BIHAR, NEAR B.S.N.L TOWER.

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Recovery. Certificate for Rs 2317888.77 l_fu!J!ees Twenty' Three Lakhs Seventeen Thousands Eight Hundred Eig!LcyEight And Paise

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Seventy, Seven OnIy_1

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In terms of final order dated 12f07/2023 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. 2317888.77 along with cost, expenses and interest from the 30/04/2022 i.e. date of filing 1 with effective date of the OAf278/2022 and future interest from order date till the date of realisation in full,jointly or severally from the Certificate Debtors, hereinafter referred to as:-

¶113

CD Name				Elfective Date	Order Date	Amount(Rs.	RC jAmount(Rs. ;
MIS JAISWAL ENTERPRISES NO OTHERS				30/04/20221	2/07/2023	317888.77
HIVSHANKAR HOUDHARY PROPRIETOR/GUARANTOR)		Compound Interest (Monthly)	! .251	30/04/2022	12/07/2023!	23178l!8.77	317888.77
; OGENDRA CHAUDHARY :(GUARANTOR/MORTGAGOR)	.	[Compound [lnrerest I(Monthly ) J _.	8.25 i	_30/04/2022 _	12/07/20n	2317888.77

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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 mortgaged/hypothecated assets as well as other personal movablel Immovable assets of the certificate debtors.._

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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 proceeding in pursuance of the Recovery certificate issued under Section 19(22) of Recovery of Debts and Bankruptcy Act 1993

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Parties are directed to appear before ASHISH KUMAR, Recovery Officer, DEBTS RECOVERY TRIBUNAL PATNA on 13/09/2023.

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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 12/07/2023

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PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL PATNA

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FORM NO. 10

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..,..

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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

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(GPOA), Ashiana Digha Road, Patna-800025.

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SCHEDULE TO RECOVERY CERTIFICATE MEMO OF COSTS

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RC No. 518/2023

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Case No: OA/278/2022

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Applicant(s): HDFC BANK Versus

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Defendant(s): MIS JAISWAL ENTERPRISES AND OTHERS

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issioner/ReceiverNaluationlSecurity Fee
	26000

Place: PATNA

Date: 12/0712023

PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL PATNA

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Note: Strike out whichever is not applicable

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•

¶139

Date of order or proceeding	DEBTS RECOVERY TRIBUNAL, PATNA Order with the Signature of the Court	Office action taken with data
	OA 2780f2022
12.07.2023	Judgment written on separate sheets kept on the case file and pronounced. Certificate of recovery be issued to the ld. Recovery officer for its execution.
12.07.2023	Certificate u/s 19(7& 22) of the DRT Act, 1993 as amended from time to time in the form no. 09 of the Rules and procedures made there under prepared and signed by me for sending it to ld. Recovery Officer for its execution in accordance with law. PreSidin~

Hdfc Bank v. M/s Jaiswal Enterprises and Others

Case brief

What is this about?

What did the court decide?

Hdfc Bank v. M/s Jaiswal Enterprises and Others

Case brief

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What did the court decide?

What the court decided

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