Allowed

Canara Bank v. Abhishek Kumar and Ors.

DRT27 Jun 2023OA/394/2022

Case brief

AI extract

What is this about?

DRT, Patna allowed an ex-parte application filed by Canara Bank to recover a housing loan of Rs.29.06 lakh. The Tribunal determined the debt and issued a recovery certificate as the defendants did not contest the bank's documentary evidence regarding the loan, NPA status, and outstanding amount.

What did the court decide?

Recovery Certificate issued directing recovery of Rs.29,06,641.59 with interest and costs from defendants; mortgaged assets attached; defendants barred from transferring charged assets.

Canara Bank versus Abhishek Kumar and Ors. — Contract and Commercial Disputes | DRT (2023)

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OA 394of2022(J]

DRT,PATNA

Debts RecoveryTribunal, Patna

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Karpuri Thakur Sadan, Aashiana Digha Road at PATNA-800025

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Presiding Officer : Shri K~ushalendra Yadav

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OA Case no. : 394 of 2022

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Canara Bank, Retail Assets Hub, 8th Floor, Luv Kush Tower, Exhibition Road, Patna-l.

. Applicant

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Vs.

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Abhishek Kumar S/o Sri Akhileshwar Prasad, Rio At Flat no. 708,Block-C, Chhatrapati Shivaji Greens, Branch Road of Bhogipur,

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'Ektapuram, P.S.-Gopalpur, District-Patna, Pin 804453 and Rio House no. 502, Exotica Fresco, Sector-137, Noida, District-Gautam Budh Nagar, Uttar Pradesh Pin 201301.

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Mrs. Juhi Mishra Wlo Abhishek Kumar Rio At Flat no. 708, BlockC, €hhatrapati Shivaji Greens, Branch Road of Bhogipur,Ektapuram, P.S.-Gopalpur, District-Patna, Pin -804453. Rio Village-Rudauli, P.O. + P.S.-Bachhwara; District-Begusarai, Pin 851111.

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Manab Kumar Singh, Rukmani Buildtech Pvt. Ltd., S/o Late Pravesh Chandra Singh, At Chhatrapati Shivaji Greens, Near Shri Ram School, New Jaganpura Road,Branch Road of Bhogipur, Ektapuram, PO + P.S.-Gopalpur, District-Patna, Pin 804453 . ...Defendants.

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Present:

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For the Applicant : Shri Manoj Kumar, Advocate For the Defendants : None

Dated: 27 .06.2023

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JUDGMENT

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 12.7.2022 against the defendants to recover its debts from defendants of Rs.29,06,641.59 as on 30.6.2022 alongwith pendente-lite and future interest at the contractual rate from 1.7.2022 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 Banking companies (Acquisition and Transfer of Undertakings) Act, 1970 having its head office at 112, J.C. Road, Bangalore 560002 and amongst others a . Branch Office at Retail Asset Hub, 8th Floor, Luv Kush Tower, Exhibition Road, Patna-l.

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DRT,PATNA

OA 394 of20221JI

-e The defendants approached the bank seeking housing loan of Rs.30 lakh for purchase of Flat vide .application dated 29.6.2018. Upon consideration of the loan proposal for housing loan of Rs.30 lakh and the same was sanctioned by the bank on 30.7.2018. The defendants executed the.various loan documents in favour of the bank. The full particular of free hold land to the bank as security for the said loan details given at page 29 in schedule-B ofOA.

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A first charge by way of hypothecation of the entire goods, movable and immovable and other assets present and future including document of title to the goods and other assets such as book debts receivables by way of,cash assistance and cash incentives under the cash incentive scheme or any other scheme, claims including claims by way of refund of customs duties under the duty draw back credit scheme or any other schemes, bills invoices, documents, contract, insurance policies, guarantees engagements, securities, investments, and rights uncalled capital and all machinery present and future of such form satisfactory applicant bank.

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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 8.4.2022

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Thus the total liability in the loan account is Rs.29,06,641.59 with pendentelite and future interest at the contractual rate from 1.7.2022 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 26.7.2022, 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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On perusal of the case records, it is clear that on 26.7.2022, 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

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OA 394 of 2022IJI

DRT,PATNA

of notice by way of advertisement in newspaper was also made against the defendants on 14.10.2022in "Aaj" newspaper.

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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 prqceed ex-parte against the defendants 23.1.2023.

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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 Om Narayan, Divisional Manager 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	Loan application	29.6.2018	Rs.30 lakh	defendants ..	1
2	sanction letter	30.6.2018	Rs.30 lakh	bank	2
3	Housing loan agreement	30.7.2018 or	Rs.30 lakh	defendant no. 1&2	3
4	PDR	30.7.2018	Rs.30 lakh	defendant no. 1&2	4
5	undertaking	30.7.2018	Rs.30 lakh	defendant no. 1&2	5
6	agreement for sale		...	...	6
7	Draft tripartite agreement	30.7.2018	...	...	7
8	urtdertaking	30.7.2018	...	... .-	8
9	Legal notice	27.5.2022	...	Adv.	9
10	Statement of account	as on 30.6.2022	Rs.29,06,64 1.59	bank	10

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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 324 of20221JI

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DRT, PATNA

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7- It has been established that .(iefendantsare 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.70 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 8.4.2022, whereas the present application has been filed..on 12.7.2022 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 Om Narayan, Divisional 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 hasnot 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 theutilization 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 theprovisions 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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OA 394 of 2022IJI

DRT,PATNA

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.29,06,641.59 with cost and further interest at the contractual rate from 1.7.2022till realization.

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13Learned Advocate appearingt 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..againstdefendants 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-factthat the bank is a trustee of public

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oj. 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.29,06,641.59alongwith pendente-lite and future interest @ 8.60% p.a. with compounded monthly rests from 12'.7.2022(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.29,06,641.59alongwith pendente-lite and future interest @ 8.60% p.a. with compounded monthly rests from

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OA 394 of20221J]

DRT,PATNA

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12.7.2022 (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 paymg 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 30.8.2023. The order be communicated accordingly.

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Judgment signed, sealed, dated and pronounced in the open court on this 2th Day of June, 2023.

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Dictated & corrected by me.

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[Kaushalendra Yadav] Presiding Officer Debts Recovery V~~Ylm~bWPcj, tUn P.ttO\i1~" nd,lrulJ" •• Iil1O\

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FORM NO.9 [See Regulation 24( I)]

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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(1) READ WITH SECTION 19(1l) OF THE RECOVERY OF DEBTS & BANKRUPTCY ACT,.!22J, AS AMENDED FROM TIME TO TIME.

RC No. 35012023

Case No: OAl394/2022

In the Matter of:

(CH- 1) CANARA BANK

RAIL ASSET HUB 8TH FLOOR LUV KUSH TOWER EXHIBITION ROAD PATNA ,BIHAR -800001

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Applicant(s)

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

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To,

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(CD- 1) ABHISHEK KUMAR & ORS ..

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Slo Sri Akhileshwar Prasad Resident at- Flat no- 708, Block-C, ,Chhatrapati Shivaji Greens, Branch Road of Bhogipur, Ektapuram, P.S.Gopalpur, Patna ,BIHAR -804453

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Also A!.

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RESIDENT AT- HOUSE NO- 502, EXOTICA FRESCO, SECTOR- 137, NOIDA, DIST- GAUTAM BUDH NAGAR, UTTAR PRADESH, PIN- 201301

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(CD- 2) MRS. JUHI MISHRA

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WIO ABHISHEK KUMAR RESIDENT AT- FLAT NO708, BLOCK-C CHHATRAPATI SHIVAJI GREENS, BRANCH ROAD OF BHOGIPUR, EKTAPURAM, P.S.- GOPALPUR, DIST.- PATNA PIN- 804453

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Defendant( s)

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Also A!.

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RESIDENT OF VILLAGE- RUDAULI, PO+PSBACHHAWARA, D1ST.- BEGUSARAI, PIN - 851111

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(CD- 3) MANAB KUMAR SINGH (DIRECTOR) RUKMANI BUILDTECH PVT. LTD. SON OF LATE PRAVESH CHANDRA SINGH, AT- CHHATRAPATI SHIVAJI G~NS, NEAR SHRI RAM SCHOOL. NEW JAGANPURA ROAD, BRANCH ROAD OF BHOGIPUR, EKTAPURAM, PO+PS.- GOPALPUR, D1STRICT-PATNA, PIN 804453

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~I'Y. Certificate for Rs 2906641.59 LJ!Yl!ees Twenty Nine Lakhs Six Thousand Six Hundred Forty One And Paise Fifty Nine Only _)

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In terms of final order dated 27/06/2023 passed by this Tribunal in the above mentioned case, it is ordered that the ApplicantCertificate Holder Bank is entitled to recover a sum of Rs. 2906641.59 along with cost, expenses and interest from the 12/07/2022 i.e. date of filing 1 with effective date of the OA/394/2022 and future interest from order date till the date of realisation in full,jointly or severally from the Certificate Debtors, hereinafter referred to as:-

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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 mortgagedlhypothecatedassets as well as other personal movablel Immovableassets of the certificatedebtors.

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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 Recoveryof Debts and BankruptcyAct 1993

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Parties are directed to appear before MANOJ KUMAR, Recovery Officer, DEBTS RECOVERY TRIBUNAL PATNA on 30/08/2023.

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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 Certificatehas been issued under my signature and seal of the Tribunal on this 27/06/2023

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~GOFFICER DEBTS RECOVERY TRIBUNAL PATNA

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FORM NO. 10

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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. 350/2023

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Case No: OA/394/2022

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Applicant(s): CANARABANK

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Versus

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Defendant(s): ABHISHEK KUMAR & ORS.

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missioner/ReceiverNaluation/Security Fee

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unt in Rs.
o
32000

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Place: PATNA

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Date: 27/06/2023

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PRESI~ICER DEBTS RECOVERY TRIBUNAL PATNA

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Note: Strike out whichever is not applicable

Canara Bank v. Abhishek Kumar and Ors.

Case brief

What is this about?

What did the court decide?

Canara Bank v. Abhishek Kumar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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