Allowed

Bank of India v. Sri Pankaj Kumar Singh

DRT20 Apr 2023OA/447/2022

Case brief

AI extract

What is this about?

Debts Recovery Tribunal allowed an ex-parte application filed by a bank against a loan-defaulter. The court determined the debt of Rs 32,96,664 along with interest, issued a recovery certificate, attached hypothecated assets, and ordered realization by the Recovery Officer.

What did the court decide?

Recovery Certificate to be issued for Rs 32,96,664 plus interest; hypothecated assets attached; defendant barred from disposing assets.

Bank of India versus Sri Pankaj Kumar Singh — Contract and Commercial Disputes | DRT (2023)

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OA 447 of 2022 IJI

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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. : 447 of 2022

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Bank of India, Parmanand Palace, Kankarbagh Colony Branch, Police Station-Kankarbagh, District-Patna, Pin code no. 800020 .

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....... Applicant

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Vs.

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Sri Pankaj Kumar Singh Sio Sri Shyam Narayan Singh Rio East Ram Krishna Nagar, Police Station-Ram Krishna Nagar, District-Patna-800027 PAN no. BNDPS2444B

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... Defendant

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Present:

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For the Applicant : Shri Animesh Ranjan, Advocate For the Defendant : None

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Dated: 20.04.2023

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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 5.8.2022 against the defendant to recover its debts from defendant of Rs.32,96,664/- as on 31.7.2022 alongwith pendente-lite and future interest contractual rate from 1.8.2022 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 Head Office at Star House, C-5,Bandra Kurla Complex, Bandra East, Mumbai-400051 and one of its Branches at Parmanand Palace, Kankarbagh Colony Branch, Police Station-Kankarbagh, District-Patna, Pin code no. 800020 ..

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The defendant applied for loan for purchase of truck on 22.11.2017 and bank sanctioned term loan of Rs.30 lakh on 28.11.2017. The defendant executed the various loan documents i.e. DP note, term loan agreement and hypothecation agreement. The bank further sanction FITL prevailing fund of Covid-19 of Rs.1.10 lakh on 27.9.2019 with compound interest @6.85% p.a. with monthly rests.

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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

OA 447 of 2022 (JI

DRT,PATNA

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 31.12.2021.

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Thus the total liability in the loan account is Rs.32,96,664/- with pendentelite and future interest at the contractual rate with monthly rests from 1.8.2022 till the realization.

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The interest Icompound 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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4Vis 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 7.9.2022, 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 7.9.2022, 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 13.11.2022in "Dainik Bhashkar" newspaper.

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Despite the registered summon/notice 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 16.1.2023.

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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 Sudhanwa Hari Mishra, Chief Manager of the applicant bank. The details of documents are as follows. :-

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SI.No	Description	Date of	Amount	Signature of	Ex.!
	photocopies	Execution		executant	Ann.
	Documents				No.
1	Loan application	22.11.2017	Rs.30 lakh	defendant	1
2	sanction letter	28.11.2017	Rs.30 lakh	bank	2

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3	DP note	28.11.2017	Rs.30 lakh	defendant	3
4	Hypothecation agreement	28.11.2017	Rs.30 lakh	defendant	4
5	term loan agreement	28.11.2017	Rs.30 lakh	defendant	5
6	Acknowledgement of debts	27.9.2019	...	defendant	6
7	Acknowledgement of debts	6.9.2021	...	defendant	7
7	Statement of account	as on 31.7.2022	Rs.32,96,664/-	bank	8&9
8	Postal receipt and legal notice	9.7.2022	...	...	10 & 11

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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 31.12.2021, whereas the present application has been filed on 5.8.2022. 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 Sudhanwa Hari Mishra, Chief 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 were 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.32,96,664/- with cost and further interest at the contractual rate from 1.8.2022till 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.32,96,664/- alongwith pendente-lite and future interest @6.85% p.a. with compounded monthly rests from 5.8.2022 (The date of filing of this O.A.) till realization. So the final order may be passed accordingly, to meet the ends ofjustice. ORDER In the result, the application of the applicant bank is, allowed exparte and debt is determined with costs against the defendant. The defendant hereby, ordered to pay the applicant bank it's debts amounting to Rs.32,96,664/- alongwith pendente-lite and future interest @6.85% p.a. with compounded monthly rests from 5.8.2022 (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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Defendant is 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

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DRT,PATNA

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 5.6.2023. The order be communicated accordingly.

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Judgment signed, sealed, dated and pronounced in the open court ~ on this 20th Day of April, 2023.

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~ ryO\ v:../--1'7

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Dictated & corrected by me.

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[Kaushalendra Yadav] Presiding Officer Debts Recovery Tribunal, Patna

Bank of India v. Sri Pankaj Kumar Singh

Case brief

What is this about?

What did the court decide?

Bank of India v. Sri Pankaj Kumar Singh

Case brief

What is this about?

What did the court decide?

What the court decided

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