Allowed

Idbi Bank v. Sri Sunil Kumar Tiwari

DRT1 Jul 2023OA/371/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal, Patna, allowed an ex-parte application by IDBI Bank against Sri Sunil Kumar Tiwari for recovery of dues amounting to Rs. 22,59,836.64 along with interest and costs. The Tribunal issued a recovery certificate under Section 19(22) of the RDB Act 1993 following the defendant's non-appearance.

What did the court decide?

Recovery certificate issued directing recovery of Rs. 22,59,836.64 with accumulated and future interest via sale of secured or personal assets.

Idbi Bank versus Sri Sunil Kumar Tiwari — Banking and Recovery | DRT (2023)

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OA 3710(2022 (J(

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DRT, PATNA

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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. : 371 of 2022

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IDBI Bank Ld. Branch Office at Kashi Palace, New Dakbunglow Road, Patna-1

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....... Applicant

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Vs.

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Sri Sunil Kumar Tiwari Sio Sri Rama Shankar Tiwari, C-2, Tribhuwan Gopla Enclave, Finance Colony, P.O.-B.V. College, Patna, Pin-800014. PAN no. ABYPTI203F.

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...Defendant

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Present:

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For the Applicant Shri J .K. Roy, Advocate For the Defendant None

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Dated: 01.07.2023

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JUDGMENT

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1- The Applicant bank has made this application uls 19of the Recovery of Debts and Bankruptcy Act, 1993 (here-in-after referred to as Act) on 30.6.2022 against the defendant to recover its debts from defendant of Rs.22,59,836.64 upto 1.4.2022 alongwith pendente-lite and future interest at the contractual rate from 2.4.2022 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 IDBI Bank Ltd. a company incorporated and registered under the companies Act 1956 (I 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 regional office at Sai Corporate Park,Rukanpura, Bailey Road, Patna-14 and Branch Office at Kashi Palace, New Dakbunglow Road, Patna-1

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The defendant is engaged in Transportation Business and approached the bank on 2.11.2017 for term loan ofRs.32lakh to purchase a truck. The bank considered the request of the defendant and sanctioned term loan of Rs.32 lakh on 29.11.2017. Defendant executed the various loan documents i.e. DP note, letterv~(j~(mtinuing security, letter of hypothecation cum loan agreement and common 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 30.1.2021.

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Thus the total liability in the loan account is Rs.22,59,836.64 as on 1.4.2022 with pendentelite and future interest at the contractual rate of interest with monthly rests from 2.4.2022 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 defendant has 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 defendant by registered/speed post on 8.8.2022, 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 8.8.2022, summon/notice were 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 25.11.2022 in " Dainik Jagaran" newspaper.

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Despite the registered summons/notices 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 15.2.2023.

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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 of Shri Vijay Kumar Sinha, Recovery Officer of the applicant bank. The details of documents are as follows. :-

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Description of Date of Amount Signature photocopies Execution of

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	Documents			executant	No.
1	Loan application	2.11.2017	Rs.32lakh	defendant	1
2	sanction letter	29.11.2017	RS.321akh	bank	1A
3	DP note	29.11.2017	RS.321akh	defendant	2
	DP note delivery letter	29.11.2017	Rs.321akh	defendant	3
4	Letter of contusing security	27.11.2017	....	defendant	4
5	letter of hypothecation cum loan agreement	29.11.2017	Rs.32lakh	defendant	5
6	common guarantee deed	29.11.2017	Rs.32lakh	defendant	6
7	Declaration	29.11.2017	...	defendant	7
8	Revival letter	20.11.2020	...	bank	8
9	recall notice	23.4.2021			9
10	Statement of account	as on 1.4.2022	Rs.22,59,836.64	bank	10

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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 30.1.2021, whereas the present application has been filed on 30.6.2022 Even, it is counted for the purpose of Limitation, then it is established that

OA 371 of2022 IJ)

DRT,PATNA

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 Vijay Kumar Sinha, Recovery Officer 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 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 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 Rs.22,59,836.64 with cost and further interest at the contractual rate from 2.4.2022 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 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 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 defendant of Rs.22,59,836.64 alongwith pendente-lite and future interest @10.55% p.a. with compounded monthly rests from 30.6.2022(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 defendant. The defendant is hereby, ordered to pay the applicant bank it's debts amounting to Rs.22,59,836.64 alongwith pendente-lite and future interest @10.55% p.a. with compounded monthly rests from 30.6.2022 (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 defendant, 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 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 01.09.2023. The order be communicated accordingly.

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Judgment signed, sealed, dated and pronounced in the open court on this 01st Day of July, 2023.

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Dictated & corrected by me.

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_0\ ')_ ~5J [Kaushalendra Yadav] Presiding Officer Debts Recovery Tribunal, Patna

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[See Regulation 24( I)]

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DEBTS RECOVERY TRIBUNAL PATNA 2nd Floor, (A. B & F Wing) Karpuri Thakur Sadan, Kendriya Karamchari Parisar (GPOA), Ashiana Digha Road, Patna800025.

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RECOVERY CERTIFICATE UNDER SECTION 19(1) READ WITH SECTION 19(22) OFTI-IE RECOVERY OF DEBTS & BANKRUPTCY ACT, 1993, AS AMENDED FROM TIME TO TIME.

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RC No. 398/2023

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IN Case No: OA/37l12022

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In the Matter of:

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(CH- I) IDBI BANK KASHr PLACE BRANCH KASHI PALACE NEW OAK BUNGLOW ROAD PATNA ,BIHAR -800001

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------ Versus ------To, (CD- I) SRI SUNIL KUMAR TIWARI. S/o Sri Rarna Shankar Tiwari C-2, Tribhuwan Gopla Enclave, ,Finance Colony, P.O.- B.Y. College, Patna ,BIHAR -800014

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Applicanus)

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Defendanus)

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Recover}: Certificate for Rs 2259836.64 ( Rupees Twenty Two Lakhs FU!y Nine Thousands Eight Hundred Thirty Six And Paise Sixty Four Only_l

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In terms of final order dated 01/07/2023 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, 2259836.64 along with cost, expenses and interest from the 30/06/2022 i.e. date of filing I with effective date of the OA/37112022 and future interest from order date till the date of realisation in full, jointly or severally from the Certificate Debtors, hereinafter referred to as>

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CD Sr.no! Name	.Loan Int. Type Type/Mode
RI UNIL UMAR IWARI	'Compound iInterest Monthly)

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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 thefinal order under the recovery proceeding in pursuance of the Recovery certificate issued under Section 19(22) of Recovery of Debts and Bankruptcy Act 1993 Parties are directed to appear before ASH ISH KUMAR, Recovery Officer, DEBTS RECOVERY TRIBUNAL PATNA on 01/09/2023.

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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 01107/2023

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PRESI~FICER DEBTS RECOVERY TRIBUNAL PATNA

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.FORMNO.I0

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DEBTS RECOVERY TRIBUNAL PATNA

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[See Regulation 24(2)]

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2nd Floor, (A. B & F Wing) Karpuri Thakur Sadan, Kendriya Karamchari Parisar (GPOA),