In an ex-parte application under S. 19 RDBA, the Patna DRT allowed the bank's claim for recovery of dues along with interest and costs after establishing the claim via documentary evidence.
Recovery of Rs. 23,36,379/ with interest @ 12.10% p.a. from filing date, penalty on transfer of assets, and issuance of recovery certificate.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
DRT. PATNA
OA 432 of 2022TJ]
Debts Recovery Tribunal, Patna
Karpuri Thakur Sadan, Aashiana Digha Road Patna-800025
Presiding offlcer : Shri Kaushalendra Yadav
OA Case No. 432 of 2022
Punjab National Bank, at Circle Office Building, situated at 2nd floor of Chankya Tower, R-Block, Patna 800 001, Bihar
•...... Applicant
Vs.
....... Defendants
Present:
For the Applicant : Shri Ritendra Bhushan Awdsthee, Advocate For the Defendants : None
Dated: 06.12.2023
JUDGMENT
1- The Applicant bank has made this application u/s l9 of the Recovery of Debts and Bankruptcy Act, 1993 (here-in-after referred to as Act) on 15.07.2022 against the defendants to recover its debts from defendants of Rs.23,36,379/-as on 01.07.2022 along with pendente-lite and future interest at the contractual rate from 02.07.2022 with costs till realization.
The application has been duly registered and numbered as above.
3- The brief facts of the case of the applicant bank as stated in the application areas under-
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OA 432 of 2022TJl
I)RT. PATNA
The applicant bank is a body corporate constituted under the Banking Companies (Acquisition and Transfer of undertaking) Act 1970, which is competent to file a suit.
Defendant no.1 is a proprietorship firm and defendant no.2 is the proprietor of defendant no.1. Defendant no.3 is the guarantor of the loan facility availed by the defendant no.1 & 2.
Defendant no.2 has approached the applicant bank for sanction of cash credit facility vide loan application dated 17.12.2015 and the applicant bank had sanctioned cash credit facility to the tune of Rs.20 Lakh vide sanction letter dated 15.01.2016 on various terms and conditions, which were accepted by the defendants.
To secure the loan facility the defendants have executed relevant loan and security documents including the guarantee agreement and also hypothecated the movables in favour of the applicant bank by executing the hypothecation agreement.
In order to further secure the loan facility the defendant no.2 created mortgage in favour of the applicant bank by depositing title documents with other related papers, details whereof have been given in schedule-I of the OA.
After availing the sanctioned credit facility defendants 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 tuning as NPA on 28.09.2021.
Thus the total liability in the loan account is Rs.23,36,379/- with Pendent-lite and future interest contractual rate from 02.07.2022 till the realization.
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PATNA
OA 432 of 2022[Jl
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.
4- This Tribunal issued summons/notices copies of application & paper book to the defendants by registered/speed post on 23.09.2022, requiring them to show-cause within 30 days of the service U/s 19 (4) of the Act & Rule of the DRT [Procedure] Rules, 1993. 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 of notice by way of advertisement in newspaper was also made against the defendants on 18.11.2022 in "Dainik Bhaskar" newspaper.
Despite the registered summons/notices and publication of notice in the 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 Proceed ex-parte against the defendants on 17.08.2023.
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 K.S. Mishra, Senior Manager of the applicant bank. The details of documents are as as follows:
| Sl.No | Descripti on Documents Photocopies |
of Date of Execution |
Amount (in Lakh) |
Signature of Executants |
Ex./ Arm. No. |
|---|---|---|---|---|---|
| 1 | Loan application | 05.11.2014 |
Def.no. I &2 | 1 | |
| 2 | Loan sanction or | der 15.01.2016 |
20.00 | Bank | 2 |
| 3 | Agreement ofgu | arantee 15.01.2016 |
20.00 | Def.no.3 | 3 |
| 4 | Agreement forloan/cashcred | it/overdraft 15.01.2016 |
20.00 | Def.no.2 | 4 |
| 5 | Hypothecation ofgoodsandbookdebtstosecurec | ashcreditfacility 15.01.2016 |
20.00 | Def.no.1 &2 | 5 |
| 6 | Photocopy ofmort | gagedeed 01.01.2016 |
- | 6 |
t'.'.,;..:"~.,......`
| 7 | Consent clause | Def.no.2 | 7 | |
|---|---|---|---|---|
| 8 | PDR and DP Note | Def.no.1&2 | 8 | |
| 9 | Letter to bank | 17.02.2018 | Def.no.1 &2 | 9 |
| 10 | Notice | 07.04.2022 | Bank | 10 |
| 11 | Balance and securityconfimationletter | 26.12.2021 | Def.no.1&2 | 11 |
| 12 | Statement of account | Bank | 12 |
6- Heard arguments for learned counsel for applicant bank and perused the case record.
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. 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. 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.
It is further submitted by ld. Counsel of applicant bank that there is no stay granted by any Higher Court, in respect of the proceedings of the present OA and requested to issue recovery certificate, as claimed for, in OA.
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 pecuniary jurisdiction to adjudicate upon the present application.
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 28.09.2021, whereas the present application has .been filed on 15.07.2022. Even, it is counted for the purpose of Limitation, then it is established that the applicant
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DRT. PATNA
OA 432 of 2022TJl
bank has filed the case within the limitation period. As such, it is established that the present application has been filed well within the period of limitation.
9- Shri K.S. Mishra, Senior Manager of the applicant bank has filed the affidavit in support of contents of application and the documents as evidence and proved on oath the pleadings and documents of the applicant bank as stated above.
10- Section 19(3) of the Recovery of Debts and Bankruptcy Act, 1993 provides that the application u/s S.19 (I) shall be accompanied with true copies of all the documents relied on in support of the claim.
The rule 12 (10) of the Debt Recovery Tribunal (Procedure) Rules, 1993, provides that if the defendant denies his liability to pay the claim made by the applicant, the tribunal may act upon the affidavit of the applicant who is acquainted with the facts of the case or who has on verification of the record sworn the affidavit in respect of the contents of the application and the documents as evidence.
The rule 12 (11) of the aforesaid Rules, provides that the provisions contained in section 4 of the Banker's Books evidence that Act,1891 (18 of 1891) shall apply to a 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.
Section 4 of Banker's Books evidence that Act,1891 runs as under-
S.4. Mode Of proof Of entries in bankers' books.*ubject to the provisions of this Act, a certified copy Of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence Of the existence Of such entry, and shall be admitted as evidence Of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by low admissible, but not further or otherwise.
. As such the certified true copies of the documents are admissible in evidence. The statement of account maintained in the ordinary course of business is not only admissible but shall be taken as the correct statement of account, more so since the entries in the statement of account have not been challenged.
11- On consideration of the arguments and on perusal of the application, documents and affidavit, it is proved that the defendants have applied for loan
I)RT. PATNA
OA 432 Of 2022rJi
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 I documents, as stated in the application and prove by afore said evidence. 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.
12- The applicant bank has sought for recovery of a sum of Rs.23,36,379/with cost and further interest at the contractual rate from 02.07.2022 till realization.
13- The evidence discussed above 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.
14- In 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.23,36,379/- along with pendente-life and future interest @ 12.10% p.a. with compounded monthly rests from 15.07.2022 (The date of filing of this OA) till realization. So the final order may be passed accordingly, to meet the ends of justice.
ORDER
In the result, the application of the applicant bank is allowed ex-parte and debt is determined with costs against the defendants. The defendants are hereby jointly and severally, ordered to pay the applicant bank its debt amounting to Rs.23,36,379/- along with pendente-lite and future interest @ 12.10% p.a. with compounded monthly rests from 15.07.2022 (The date of flling of this OA) till realization of the entire sum due and recoverable with costs.
It is made clear that any amount deposited by the defendants be deducted in the claim amount, if not deducted.
vgiv/
DRT. PATNA
OA 432 of 2022lJl
Defendants are debarred fi.om 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.
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.
Parties are directed to appear before the Recovery Officer, DRT, Patna on 12.01.2024. The order be communicated accordingly.
Judgment signed, sealed, dated and pronounced in the open court on 06th day of December, 2023
Dictated &corrected by me.
[KaushalendraYadav] Presiding Offlcer Debts Recovery Tribunal, Patna
DEBTS RECOVERY TRIBUNAL, PATNA
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I)EBTS RECOVERY TRIBUNAL PATNA 2nd Floor, (A a & F Wing) Karpun Thdkur Sadan, Kendriya Kafanchari Parisar
(GPOA), Ashiana Digha Road, Patna-800025.
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EENo. 767/202!
IN Case No: OA/432/2022
In the Matter ol`: (CI]-I) PUNJAB NATIONAL BANK CIRCLE OFFICE BUILDING SITUATED AT 2ND FLOOR OF CHANKYA TOWER R BLOCK PATNA ,BIHAR -800001
Applicant(s)
---`-- Versus -------
To,
(CD-I) M/S SHIVAM RICE MILLAND OTHERS
Prop- chand Palel Singh S/o Late Rameshwar Sjngh At-SituntedAtBakhtiyapurFourLane,(Near Bakhtiyarpur Railway Station) P.O. and P,S.Bakhtiyarpur, ,Regd. office At:-Shisha Mill, Station Road,Fatuha. Patna ,BIHAR -80320 I
(CD- 2) SRI VIR CHAND PATEL SINGH S/O LATE RAMESHWAR SINGl+ AT :-SHISHA MILL STATION ROAD. FATUHA, P.0. ANI) P.S.:FATUI]A. DISTT- PATNA :-803201
Defendant(s)
(CD- 3) P00JA KUMARI W/O RANJEET SINGH (GUARANTOR), AT SONARU, TOWN/VILL-SONARU, ANCHALFATUHA, PATNA-803201
EE;=IXLfedifiiferfuBL233ffz2ELlhinesThrtyLlbealam~LsisThrandr-LMn£
Intel.msoffinalorderdated06/12/2023passedbythisTribunalintheabovementionedcase,itisorderedthatthe Applicant Certificate Holder Bank is entitled to recover a sum of Rs. 2336379.00 along with cost, expenses and intel.est from the 15/07/2022 i.e. date of filing / with effective date of the OA/432/2022 and future interest from orderdatetillthedateofrealisationinfull.jointlyor§everallyfromtheCertificateDebtors.hereinafterI.efeiTedto as:-
iI Loan ' Inlel.est
I Sr.no11_....I trype typeinodei....__.tnt I, R::;I. I EffectiveDate OrderIDate I.", , I mount(Rs )) . uabilitytype (a8 onIOrder;Date)
I, c"me Amo:ni(RE)jRemark
lsHIVAM!RICEMILL iCompoundInterest I 2336379.00 I Inlci.cst As
Jointly
ANDOTHERS 12.10 15/07/2022 I1') 06/12/2023 AndSeverally , I on orderDate 2336379,00
(Month,,y) ,
SRI VRCHAND
PATELSINGH I Compound iInterest 12.10 I15/o7/2o 2 1,) 06/ 12/2023 ,2336379.00 Jointly iArldSeverally , on orderDateInterest As 233637900 i
I_ !1' (Month,y) ,Compound
3'I POOJAKURARI [nteres'(Month,y) ,I 2.10 15/07/2022 : 06/ 12/2023 .I 2336379.00 Jo,ntly ,AndSeverallyInterest AsonOrderDate 2336379.00
h case of failure to pay the aforementioned aduudicated amount within 30 days, same shaH be recovered from the sale of the mortgagedthypothecated assets as well as other pel.sonal movable/ Immovable assets of the certificate debtors.
ThemortgagedorhypothecatedassetstosecuretheloaninquestionareherebyattachedandshaHbesubjectto thefinalorderundertherecoveryproceedinginpursuanceoftheRecoverycertificateissuedunderSection19(22) of Recovery of Debts and Bankruptcy Act 1993. Parties are directed to appear before ASHISH KUMAR , Recovery Officer, I)EBTS RECOVERY TRIBUNAL PATNA on 12/01/2024.
TheRecoveryOfficershaHrealizetheamountasperthisCertlflcateinthemannerandmodeprescribedunder Sections 25 to 28 of the Recovery of Debts Due to Banks and Financial Instltutions Act,1993 (as amended from time to time) from the above named Certificate Debtors.
Th[scert,ficatehasbeen,ssuedundermys'orafureandsea'°ftheTr]buna'°nth'S°6/'2/2p°gzf,CER
DEBTS RECOVERy TRI BUNA L PATNA
'seeReRE
DEBTSRECOVERYTRIBUNALPATNA
2ndFloor,(A.8&FWing)KarpuriThakurSadan,KendriyaKaramchariParisar
(GPOA), Ashiana Digha Road, Patna-800025. _-,-------:=~+-------,-iv---~~---~~----`------------~~~--.
SCHEDULETORECOVERYCERTIFICATE
MEMO 0F COSTS
ELNo.767/2Q2!
IN
Case No: OA/432/2022
Applicant(s): PUNJAB NATIONAL BANK
V rsus
Defendant(s): M/S SHIVAM RICE MILL AND OTHERS
| Sr. No.I.2.3.4. | Item of costsFeeontheapplicationProcessFees(Inc.Publication)AdvocateFeesCommissioner/ReceiverIvaluation/Security FeeMiscellaneousCharges |
|---|---|
| 5. | |
| Tl ota Costs: Rs. |
| Amount in Rs. |
|---|
| 26000 |
| 0 |
| 0 |
| 00 |
| 26000 |
Place: PATNA
Date: 06/12/2023
PRESIhafFF[cER DEBTS RECOVERY TRIBUNAL PATNA
Note: Strike out whichever is not applicable
1 issue framed by the court
Whether the Tribunal has jurisdiction and limitation issues in a recovery application under S. 19 RDBA.
3 provisions across 3 enactments
Punjab National Bank
M/s Shivam Rice Mill
Vir Chand Patel Singh
Pooja Kumari
Kaushalendra Yadav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
