Allowed

Bank of India v. Shyam Sundar Thakur

DRT25 Apr 2023OA/361/2022

Case brief

AI extract

What is this about?

The DRT allowed an ex-parte application by Bank of India to recover a defaulted loan of approximately Rs. 28.22 lakhs. The defendant failed to appear, and the court directed the issuance of a recovery certificate and attachment of mortgaged properties under Section 19 of the RDB Act.

What did the court decide?

Issuance of recovery certificate, payment of debt with interest, attachment of mortgaged assets, and prohibition on alienating said assets.

Bank of India versus Shyam Sundar Thakur — Banking and Recovery | DRT (2023)

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1 DRT,PATNA

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OA 361of2022[J]

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Debts Recovery Tribunal, Patna Karpuri Thakur Sadan, Aashiana Digha Road Patna-800025

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Presiding Officer : Shri Kaushalendra Yadav

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OA Case No. : 36112022

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Bank of India, Bariyarpur Branch, District-Sitamarhi (Bihar)

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....... Applicant

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Vs.

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Shyam Sundar Thakur, Sou of Sri Ram Kripal Thakur, Resident of Village- Bhikha, P.O. Radhaur, P.S. Bajpatti, District- Sitamarhi, Bihar Pin Code-843331 and his PAN No. BEPPT1960Q

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...Defendant

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Present:

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For the Applicant : Shri Raj Nandan Prasad Advocate For the Defendant : None

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Dated: 25.04.2023

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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 29.06.2022 against -the defendant to recover its debts from defendant of Rs.28,21 ,958.901- as on 2.06.2022 along with Pendente-lite and future interest at the contractual rate from 3.06.2022 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, a body corporate constituted under the Banking Companies (Acquisition and Transfer of undertaking) Act V of 1970,having its registered and corporate office at Star Bouse, C-5, G Blok,Bandra Kurla Complex, Bandra, ( East) Mumbai-400051 and branches at various places in India including one at Bariyarpur Branch, District- Sitamarhi ( Bihar).

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The defendant approached the bank and submitted an application for loan in the shape of term loan facility Rs.27 lakh for purchase of Tata LPO 1515 TC 55 BS-IV (AC) Bus. The bank sanctioned Rs.27 lakh under CGTSME Scheme. The defendant executed various loan documents. The defendant further approached the bank and submitted the loan application under Star Guaranteed Emergency Credit Line (GECL) for providing the facility of RsA.21 lakh on 24.8.2020. The bank sanctioned GECL of RsA.21 lakh on 25.8.2020 and defendant executed the various loan documents.

DRT,PATNA

OA 361 of2022(J]

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-oftheir 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 29.4.2021

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Thus the total liability in the loan account is Rs 28,21,958.90 with Pendent-lite and future interest contractual rate from 03.06.2022 till the realization.

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The interest Icompound 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 defendant h~s 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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4Vis 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 30.07.2022 and summon/notice issued requiring the defendant to show-cause within 30 days of the service of summon/notice 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 30.07.2022 summon/notice was sent to the defendant, but the defendant has 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 defendant on 23.09.2022 in "Hindustan." newspaper.

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Despite the registered summon/notice and publication of notice in newspaper, the defendant has not appeared before this Tribunal to contest the case. The sufficient time has been given to the defendant to defend his case, but he failed to appear and to file WS, hence, the Tribunal has passed an order to Proceed ex-parte against the defendant 09.01.2023.

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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 Kaushal Kishore Shrivastava, Chief Manager of the applicant bank. The details of documents are as follows.:.,.

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SI.No	Description Documents Photocopies	of	Date of Execution	Amount	Signature of Executants	Ex.! Ann. No.
1	Loan application		07.10.2017	Rs.271akh	defendant	1
2	Sanction letter		10.11.2017	RS.271akh	bank	2

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OA 361 of2022[J)

DRT,PATNA

3	Agreement of loan and Hypothecation	10.11.2017	RS.271akh	defendant	3
4	PDR	10.11.2017	Rs.271akh	defendant	4
5	L-515	10.11.2017	Rs.271akh	defendant	5
6	L-516	10.11.2017	Rs.271akh	defendant	6
7	L-434	10.11.2017	Rs.27lakh	defendant	7
8	L435	10.11.2017	Rs.271akh	defendant	8
9	L-440	10.11.2017	.....	defendant	9
10	L-444	20.11.2019	Rs.27lakh	defendant	10
11	loan application	24.08.2020	Rs.4.21 lakh	defendant	11
12	Sanction letter	25.08.2020	Rs.4.21 lakh	bank	12
13	Supplementary Loan cum Hypothecation	25.08.2020	Rs.4.21 lakh	defendant	13
14	L-515	25.08.2020	.......	Defendant	14
15	L-434	25.08.2020	Rs.4.21 lakh	defendant	15
16	L-435	25.08.2020	Rs.4.21 lakh	defendant	16
17	L-440	30.08.2021	.......	defendant	17
18	Recall	23.07.2021	......	bank	18
19	Legal Notice	07.08.2021	......	bank adv.	19
20	Certificate of Sale	7.2.Z022	......	Bank	20
21	Statement of account	as on 2.6.2022	Rs.28,21,958.90	Bank	21 to 24

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6- Opportunity of hearing has been fully given to both the parties, but despite several opportunities given to defendant, the defendant has 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 defendant has 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 defendant is living and carrying on his 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

OA 361of2022(J]

DRT,PATNA

29.04.2021, whereas the present application has been filed on 29.06.2022. 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 Kushal Kishore Shrivastava ,Chief 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 defendant has 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 defendant has 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 defendant, all contentions raised and documents produced by plaintiff remained unrebutted and the tribunal may act upon the affidavit of the applicant as per law. Defendant has neither denied the utilization of funds advanced by applicant bank nor has 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 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, aocuments were executed by the defendant and facility was availed by the defendant as stated in the application.

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12The applicant bank has sought for recovery of a sum of Rs28,21,958.90 with cost and further interest at the contractual rate from 3.06.2022 till realization.

OA 361 of 2022[J)

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.

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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 defendant in terms of documents and as per directives of RBI. •

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15None of the defendant 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 defendant has 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 case stand proved by evidence of the applicant bank ex-parte. Accordingly, the applicant bank is entitled to recover from defendant of Rs 28,21,958.90 along with pendente-lite and future interest @ 10.60%. p.a. with compounded monthly rests from 29.6.2022 (The date of filing of this OA) 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 defendant. The defendant is hereby jointly and severally, ordered to pay the applicant bank its debt amounting Rs 28,21,958.90 along with pendente-lite and future interest @ 10.60%. p.a. with compounded monthly rests from 29.6.2022 (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 defendant, be deducted in the claim amount, if not deducted.

OA 361of2022[J]

DRT,PATNA

Defendant is 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.

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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 defendant, by sale of mortgaged! hypothecated assets as well as other personal movable/immovable assets of the defendant.

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Parties are directed to appear before the Recovery Officer, DRT, Patna on 19.6.2023.The order to be communicated accordingly.

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Judgment signed, sealed, dated and pronounced in the open court on zs" day of April 2023

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Dictated &corrected by me.

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~ 'V A'-'\ [Kaushalendra Yadav] Presiding Officer Debts Recovery Tribunal, Patna

Bank of India v. Shyam Sundar Thakur

Case brief

What is this about?

What did the court decide?

Bank of India v. Shyam Sundar Thakur

Case brief

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