Allowed

Canara Bank v. Sanjay Kumar

DRT16 Feb 2023OA/397/2022

Case brief

AI extract

What is this about?

This single Judge OA of the Debts Recovery Tribunal, Patna allowed an ex-parte application filed by Canara Bank under Section 19 of the RDB Act, 1993 to recover a housing loan default. The court determined the debt of Rs. 30,16,481 along with interest and costs against the non-apparent defendant.

What did the court decide?

Recovery certificate to be drawn up for realization of debt Rs. 30,16,481 along with pendente-lite and future interest at 8.40% p.a. with monthly rests.

Canara Bank versus Sanjay Kumar — Banking and Recovery | DRT (2023)

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OA 397 of 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-800025

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Presiding Officer : Shri Kaushalendra Yadav

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OA Case no. : 397 of 2022

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Canara Bank, Retail Asset Hub, s" Floor, Luv Kush Tower, Exhibition Road, Patna-1

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....... Applicant

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Vs.

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Sanjay Kumar Sio Sri Asharfi Prasad, Rio Flat no. 103, (lst Floor), Barij Bihari Enclave, Mauza-Dujra, North Mandiri, P.S.-Budha Colony, Patna-1 and Rio House no. 73, North Mandiri, Near Dwarika High School, P.S-Budha Colony, Patna-1.

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...Defendant

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Present:

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For the Applicant For the Defendant

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Shri Manoj Kumar, Advocate : None

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Dated: 16.2 .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 12.7.2022 against the defendant to recover its debts from defendant of Rs.30,16,4811- upto 28.6.2022 alongwith pendente-lite and future interest at the contractual rate from 29.6.2022 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 is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 having its Head Office at 112, J. C. Road, Bangalore 560002 and Branch Office at Retail Asset Hub, s" Floor, Luv Kush Tower, Exhibition Road, Patna-1

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The defendant approached applicant seeking housing loan ofRs. 30 lakh for purchase of a Flat vide application dated 19.9.2017. Upon consideration of the loan proposal for housing loan of Rs.30 lakh and same was sanctioned by the bank on 26.9.2017. The defendants executed the various loan documents in favour of the bank i.e. housing loan agreement, PDR, undertaking. Defendant secured flat no. 103 along with undivided proportionate share in the land vide development agreement. The full particular of free hold land to the bank as security for the said loan are given at page 27 in schedule -B of OA.

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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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The defendant thereafter enjoyed the benefit of said loan facility but after some time did not adhere to the terms and conditions of the said facility and despite repeated request did not clear dues within specified time as per the agreements of the facility and later on due to non- deposit of the installments by defendant his account become irregular despite regular follow up by telephone and recall notice. As a result the account of defendant had classified as NPA on 28.11.2021 as per guidelines of RBI.

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The total outstanding dues amount comes to Rs.30,16,4811-upto 28.6.2022 and the defendant is liable to pay further interest on the said amount w.e.f. 29.6.2022.

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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- D/s 19 (4) of the Act & Rule of the DRT [Procedure] Rules, 1993, copies of application & pap~r book were sent by this Tribunal to the defendant by registered/speed post on 26.7.2022 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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Despite the registered summon/notice which is evident from the tracking report and sufficient time has been given to the defendant to defend their case, but the defendant has not appeared before this Tribunal to contest the case, he failed to appear and to file WS, hence, the Tribunal has passed an order to proceed ex-parte against the defendant on 2.11.2022

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5- To prove its case, the applicant Bank has referred various photocopies of documents before this Tribunal. The applicant bank has also given evidence on affidavit by way of affidavit of Shri Om Narayan,

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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	19.9.2017	Rs.30 lakh	defendant	1 I i
2	sanction letter	26.9.2017	Rs.30 lakh	bank	2 I I
3	Housing loan agreement	26.9.2017	Rs.30 lakh	defendant	3
4	Agreement under PDR	26.9.2017	Rs.30 lakh	defendant	4 I
5	Undertaking	26.9.2017	Rs.30 lakh	defendant	5 I
6	copy of sale deed no. 9434	3.10.2017	...	defendant	6
7	affidavit cum undertaking	26.9.2017	...	defendant	7
8	legal notice	27.5.2022	...	bank adv.	8 r
9	Statement of account	as on 28.6.2022	Rs.30,16,481/-	bank	9 I

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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 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 28.11.2021, 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 from the

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date of declaring the account as NPA. 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 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.30,16,4811- with cost and further interest @ 8.40% p.a. with compounded monthly rests from 29.6.2022 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

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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.30,16,4811- alongwith pendente-lite and future interest @8.40% 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 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 defendant. The defendant is hereby, ordered to pay the applicant bank it's debts amounting Rs.30,16,481/- alongwith pendente-lite and future interest @8.40% p.a. with compounded monthly rests from 12.7.2022 (The date of filing of this O.A.) 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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Defendant is debarred from transferring, alienating encumbering or otherwise dealing with or disposing of the mortgaged or hypothecated or

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any other properties and assets without paying the aforesaid adjudicated dues to the applicant bank to secure the ends ofjustice.

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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 29.3.2023. The order be communicated accordingly.

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Judgment signed, sealed, dated and pronounced in the open court on this 16th Day of February, 2023.

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Dictated & corrected by me.

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~ alendra Yadav] ~~\ ~ Y( Presiding Officer Debts Recovery Tribunal, Patna

Canara Bank v. Sanjay Kumar

Case brief

What is this about?

What did the court decide?

Canara Bank v. Sanjay Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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