Allowed

Punjab National Bank v. M/s Kundan Timber Works and Others

DRT17 Apr 2023OA/368/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal allowed an ex-parte application filed by Punjab National Bank to recover a debt of over Rs. 1.13 crores from borrowers who failed to repay loans and appeared in court. The court approved the bank's claim and issued a recovery certificate.

What did the court decide?

Ordering the defendants to jointly and severally pay Rs. 1,13,02,420.87 with pendente-lite and future interest at 14% p.a., attaching secured assets, and issuing a Recovery Certificate to the Recovery

Punjab National Bank versus M/s Kundan Timber… — Contract and Commercial Disputes | DRT (2023)

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DRT,PATNA

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OA 368 of 2022 [JI

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Debts Recovery Tribunal, Patna

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Karpuri Thakur Sadan, Aashiana Digha Road at PATNA-80002S

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Presiding Officer : Shri Kaushalendra Yadav

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OA Case no. : 368 of 2022

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Punjab National Bank, Hisua Nawada

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....... Applicant

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Vs.

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1. MIs Kundan Timber Works through its proprietor Ramdeo Prasad Yadav, Resident of Village-Sartakiya, P.O.- Hisua, P.S.-Hisua, District-Nawada-805103.

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Ramdeo Prasad Yadav S/o Late Ram Chandra Prasad Yadav, Rio Village-Hisua Gaya Road Near Power House P.O. + P.S.Hisua,District-Nawada-805103 PAN no. AAPPY5162L

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Devendra Kumar S/o Late Ram Chandra Prasad Yadav, Rio Panchu, P.O.+ P.S.- Hisua, District-Nawada-805103.

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...Defendants.

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Present:

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For the Applicant Shri R.N. Prasad, Advocate For the Defendants : None

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Dated: 17.4.2023

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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 20.5.2022 against the defendants to recover its debts from defendants ofRs.l,13,02,420.87 as on 31.3.2022 alongwith pendente-lite and future interest at the contractual rate from 1.4.2022 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 body corporate constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970, having its Corporate Office Plot no. 4,Sector-10,Dwarka New Delhi-l l0075 and inter alia a branch Office at Hisua Nawada.

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The defendant no. 1 is represented through its proprietor the defendant no. 2. The defendant no. 1 & 2 took cash credit loan for timber works and defendant no. 2 took loan for purchase one Mahindra XUV car and also took dairy loan for purchase 20 milch cattles. The defendant no. 1 & 2 further approached the bank for enhancement in the existing credit facilities for grant of fresh facilities cash credit of Rs.40 lakh on 27.12.2012. The defendant no. 3 executed agreement of guarantee, hypothecation of goods. The defendant no. 1 & 2 further approached the

DRT,PATNA

OA 368 0£2022 IJ]

bank for enhancement cash credit facility of rs.80 lakh on 17.10.2014. The defendant no. 3 executed the agreement of guarantee, defendant no. 1 & 2 executed hypothecation of goods and book debts to secure the cash credit facility. The defendant no. 2 created the mortgage details given at pagell of ~A. The defendant no. 2 on 22.10.2013 approached and applied for the purchase one Mahindra XUV Car facilities. The bank sanctioned car loan of Rs.12.50 lakh on 30.10.2013. At request of defendant no. 2 the bank sanctioned credit facilities of Rs.13.50 lakh on 22.11.2013. The defendants executed the various loan documents i.e. hypothecation agreement, deed of guarantee.

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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 10.1.2019

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Thus the total liability in the loan account is Rs.l,13,02,420.87 with pendentelite and future interest at the contractual rate from 104.2022 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- U/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 27.7.2022, 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 18.10.2022.

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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 Shri Viresh Mathur, Branch Manager of the applicant bank. The details of documents are as follows. :-

of Date of Amount

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OA 368 of 2022 (J)

	photocopies Documents	Execution		executant	Ann. No.
1	Loan Sanction	27.12.2012	Rs.40 lakh	bank	1
2	Agreement of Guarantee	27.12.2012	·Rs.40 lakh	defendant no. 3	2
3	Hypothecation of goods	27.12.2012	Rs.40 lakh	defendant no. 1 & 2	3
4	Loan sanction	17.10.2014	Rs.80 lakh	bank	4
5	Agreement of guarantee	17.10.2014	Rs.80 lakh	defendant no. 3	5
6	hypothecation of goods to secure a demand cash credit	17.10.2014	Rs.80 lakh	defendant no. 1 & 2	6
7	copy of sale deed no.717	26.2.2001	...	...	7
8	copy of sale deed no. 1637	22.5.2001	...	...	8
9	loan application	22.10.2013	Rs.12.50 lakh	defendant no. 1 & 2	9
10	sanction letter	30.10.2013	Rs.12.50 lakh	bank	10
11	Agreement of guarantee	30.10.2013	Rs.12.50 lakh	defendant no. 3	11
12	letter of hY£_othecation	30.10.2013	Rs.12.50 lakh	defendant no. 1 & 2	12
13	loan application	5.11.2013	Rs.13.50 lakh	defendant no. 1 &2	13
14	letter of sanction	24.11.2013	Rs.13.50 lakh	bank	14
15	Hypothecation agreement	5.11.2013	Rs.13.50 lakh	defendant no.1 &2	15
16	Deed of guarantee	5.11.2013	Rs.13.50 lakh	defendant no3	16
17	Balance and security confirmation letter	13.6.2019	...	. defendants	17
18	legal notice	21.6.2021	...	bank	18
19	statement of account	as on 31.3.2022	Rs.1,13,02,420.8 7	bank	19

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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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OA 368 of 2022 [J)

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 pecuruary 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 10.1.2019, whereas the present application has been filed on 20.5.2022 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 Viresh Mathur, Branch 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 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

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DRT,PATNA

OA 368 of 2022 [J]

has granted the loan facilities, documents were executed by the defendants and facilities were 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.1,13,02,420.87 with cost and further interest at the contractual rate from 1.4.2022 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 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.l, 13,02,420.87 alongwith pendente-lite and future interest @14% p.a. with compounded monthly rests from 20.5.2022 (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

L \l'-'

DRT,PATNA

OA 368 0[2022 [J]

defendants is hereby jointly and severally, ordered to pay the applicant bank it's debts amounting to Rs.l,13,02,420.87 alongwith pendente-lite and future interest @14% p.a. with compounded monthly rests from 20.5.2022 (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 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 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 31.5.2023. The order be communicated accordingly.

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Dictated & corrected by me.

Punjab National Bank v. M/s Kundan Timber Works and Others

Case brief

What is this about?

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Punjab National Bank v. M/s Kundan Timber Works and Others

Case brief

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