Allowed

Hdfc Bank v. Ms Panchsheel Distributor and others

DRT7 Dec 2023OA/475/2022

Case brief

AI extract

What is this about?

In an ex-parte order, the Debt Recovery Tribunal allowed the bank's application under Section 19 of the RD&BI Act. The Tribunal found proof of loan availed by defendants and granted a recovery certificate for Rs. 25,29,706.90 with interest, directing attachment of mortgaged assets.

What did the court decide?

Issued Recovery Certificate for Rs. 25,29,706.90 plus interest; mortgaged assets attached; recovery via Recovery Officer.

Hdfc Bank versus Ms Panchsheel Distributor and others — Banking and Recovery | DRT (2023)

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OA 475 Of 2022rTi

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DRT. PATNA

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Debts Recovery Tribunal, Patna

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Karpuri Thakur Sadan, Aashiana Digha Road Patna-800025

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Presiding offlcer : Shri Kaushalendra Yadav

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OA Case No. 475 of 2022

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HDFC Bank Limited, Bimla Sadan, Holding No. 801/432, Ward No.37, Exhibition Road, Patna-800 001

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•...... Applicant

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M/s Panchsheel Distributor, a proprietorship concern, through its proprietor Mr. Sanjay Kumar Singh, having its Unit/Shop at- Tilak Nagar Katiha, Arrah, Bhojpur, District-Bhojpur- 802 301, Bihar Land Mark- Tilak Nagar

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Mr. Sanjay Kumar Singh, (Proprietor/Guarantor/Mortgager), son of Kedar Nath Singh, residing at Town/village-Panchshil, G.T. Road, New Area, Sasaram, District-Rohtas, Pin-821 115, Bihar A!gr±: Tilck Nagar Katiha, Arrah, Bhojpur, District- Bhojpur- 802 301, Bihar Land Mark-Tilak Nagar

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Ganga Devi (Guarantor/Mortgager), wife of Kedar Nath Singh, residing at Town/village-Panchsheel Colony, G.T. Road, New Area, Sasaram, District-Rohtas, Pin-821 115, Bihar

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....... Defendants

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Present:

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For the Applicant : Shri Bhola Shankar, Advocate For the Defendants : None

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Dated: 07.12.2023

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JUDGMENT

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I- 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 31.08.2022 against the defendants to recover its debts from defendants of Rs.25,29,706.90 as on 28.02.2022 along with pendente-lite and future interest at the contractual rate from 01.03 .2022 with costs till realization.

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OA 475 of 2022TJl

DRT. PATNA

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 areas under-

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The applicant bank is a company incorporated under the Companies Act 1956 and registered under Banking Regulation Act, 1949, which is competent to file a suit.

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Defendant no.I is a proprietorship concern and defendant no.2 is the proprietor of defendant no.2. Defendant No.2 and 3 are the guarantors and mortgagers of the loan facilities availed by the defendant no. I firm.

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Defendants have approached the applicant bank for sanction of cash credit facility of Rs.30 Lakh vide loan application dated 14.08.2018 and after considering the request of the clef?ndants, the applicant bank had sanctioned cash credit facility to the tune of Rs.25 Lakh vide sanction letter dated 20.08.2018 on various terms and conditions, which were accepted by the defendants. The defendants agreed to pay the loan amount with interest @ 10.45% p.a. with monthly rests.

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To secure the loan facility the defendants have execute 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.

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In order to further secure the loan facility the defendant no. 2 and 3 had created equitable mortgage of their properties by depositing the documents of title deeds with other related papers in favour of the applicant bank. Details of the mortgaged properties have been given in schedule-A of the OA.

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Defendants again approached the applicant bank for renewal of the said cash credit facility and the request of the defendants was considered by the applicant and loan was renewed vide sanction letter dated 27.09.2019.

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OA 475 of 2022lJl

I)RT. PATNA

After availing the sanctioned credit facilities 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 turning as NPA on 03.01.2022 and thereafter the applicant bank had issued demand notice to the defendants on 04.04.2022, but there were no response from the defendants.

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Thus the total liability in the loan account is Rs.25,29,706.90 with Pendent-lite and future interest contractual rate from 01.03.2022 till the realization. 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- This Tribunal issued summons/notices copies of application & paper book to the defendants by registered/speed post on 21.09.2022, 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 01.03.2023 in "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 proceed ex-parte against the defendants on 01.08.2023 .

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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

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OA 475 of 2022[Jl

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DRT. PATNA

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given evidence on affidavit by way of affidavit by Shri Pappu Thakur, Manager of the applicant bank. The details of documents are as s follows:

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Sl.No	Description of Documents Photocopies	Date of Execution	Amount (in Lakh)	Signature of Executants	Ex./ Arm. No.
1	Loan appl ication	14.08.2018	30.00	Defendant	I
2	Sanction letter	30.08.2018	25.00	Bank andacceptedbyclef.no.1&2	2
3	DP Note	05.10.2018	25.00	Def.no.1 &2	3
4	Amendmentagreement	05.10.2018	25.00	Def.no.I&2	4
5	Deed of Indemnity	05.10.2018	25.00	Def.no.3	5
6	Power of attorney	05.10.2018		Def.no. I &2	6
7	Master faci lityagreement	05.10.2018	25.00	Def.no.1 &2	7
8	Letter of continuingguarantee	05.10.2018	25.00	Def.no.2&3	8
9	Photocopy of saledeed	-		Def.no.2&3	9
10	Renewal sanctionletter	27.09.2019	25.00	Bank	10
11	Renewal sancti on letter	09.03.2021	25.00	Bank and accepted byDef.no.1&2	11
12	Legal notice	04.04.2022		Banks adv.	12
13	Statement of account	Ason01.03.2022	Rs.25,29,706.90	^Bank	13

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6- Heard arguments for learned counsel for applicant bank 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. 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.

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OA 475 of 2022 [Jl

DRT. PATNA

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.

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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.

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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 03.01.2022, whereas the present application has been filed on 31.08.2022. Even, it is counted for the purpose of Limitation, then it is established that the applicant bank has flled 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- Shri pappu Thakur, 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.

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10- Section 19(3) of the Recovery of Debts and Bankruptcy Act, 1993 provides that the application u/s S.19 (1) shall be accompanied with true copies of all the documents relied on in support of the claim.

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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.

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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 funished along with application filed under sub section 1 of section 19 by the applicant.

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OA 475 of 2022IJl

DRT. PATNA

Section 4 of Banker's Books evidence that Act, 1891 runs as under-

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S.4. Mode Of |}roof Of entries in bankers' books.*ubjecl 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 accouhis 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.

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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.

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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 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, 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.

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12- The applicant bank has sought for recovery ofa sum of Rs.25,29,706.90 with cost and further interest at the contractual rate from 01.03.2022 till realization.

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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.

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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.25,29,706.90 along with pendente-lite and future interest @ 10.45% p.a. with compounded monthly rests from

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v/n\/

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DRT. PATNA 0A 47S of2022IJl

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31.08.2022 (The date of filing of this OA) 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 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.25,29,706.90 along with pendente-lite and future interest @ 10.45% p.a. with compounded monthly rests fi.om 31.08.2022 (The date of flling of this OA) 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 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 defendants, by sale of mortgaged/ hypothecated assets as well as other personal movable/immovable assets of the defendants.

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OA 47S of 2022IJl

DRT. PATNA

Parties are directed to appear before the Recovery Officer, DRT, Patna

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on 16.01.2024. The order be communicated accordingly.

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Judgment signed, sealed, dated and pronounced in the open court on 07`h day of December, 2023

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Dictated &corrected by me.

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Presiding Officer Debts Recovery Tribunal, Patna

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DEBTS RECOVERY TRIBUNAL, PATNA

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

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DEBTS RECOVERY TRIBUNAI. I'ATNA

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2nd Floor, (A. 8 & F Wing) Karpuri Thckur Sadan, Kendriya Karamchari Parisar (GPOA), Ashiana Dighfl Road, Patna-800025.

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REcOvERycERTIFlcAiE±:::==E:=:x8¥:+EL#;.::±R::::::::s::=:3::i::i:i#::;::E±:8:::;::ErEcOvERyoFDEBTSL&

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Rc NO. 779fro23

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IN Case No: OA/475/2022

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In the Matter ofJ

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(CH-I) HDFC BANK BIMLA SADAN HOLDING NO 801 432 WAR NO 37 EXHIBITION ROAD PATNA PATNA J3IHAR -80()001

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Applicant(s)

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To'

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(+D- I) MS PANCHSHEEL DISTRIBUTOR AND OTHERS Tilak Nagar Katina, ,Amh, BhQjpur Land Mark- Tiifak Nagar ThQipur j3IHAR no023ol

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(cD-2) MR. sANjAV KUMAR sINcm ( pRopRiETOR/GUARAtrroR/MORTCIAGOR) SON oF KEDAR NATH slNGH, REslDniG AI` TowN /VILLAGE- PANCHSHIL, G.T. ROAD, NEW AREA, SASARAM, DISTRICT- ROHTAS, PIN CODE82 I 1 1 5. BHun

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Defendant(s)

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Also At

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AND ALsO AT sANATy KUMAR slNGII SON Or KEDAR NATII SINGH ADDRESS-TILAK NAGAR KATJHA , ARRAH, BHOJPUR, I)ISTRICTBHOJPUR, Plt`l CODE-802301 BIHAR LAND MARK-TILAK NAGAR.

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(Clh 3) GANGA DEVI (GUARANTOR/MORTGAGOR) wlFE OF KEDAR NATil siNGH, REsroiNG AT TOwN rvlLLAGE-pAI`icHSHiL, G T. ROAD, NEw AREA, SASARAM, DISTRIC.IL ROHTAS, PIN CODE-821115. BIHAR

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Eaa5=;rB=;=g;=;rficateforRS2S29706.90lE!!pegaJ]!!sEbcFi`reLakhsTwentyNineThousandssevenHundredsixAndpaisf

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in terms of final order dated 07/12/2023 passed dy this Tribunal in the above mentioned case, it is ordered that the Applicant Certificate Holder Bank is entitled to recover a sum of Rs. 2529706.90 along with cost, expenses and iinterest from the 31/08/2022 i.e. date of filing / with effective date of the OA/475/2022 and fimre interest from order date till the date Of realisation in full, jointly or severally from the Certificate Debtors, hereinafter refened to as:-

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.i CD Name	LoanTtwe	tnt. type"ode	Int. I Effective ^I ^Ra'e` Date	^order Dat. I	Amountais.)	!Llabmtyl type i	Interest(ason ^OrderDate)	RC! ^lAmouDtQts.)	Ren]arut
II)iMS PANCHsliEEL DISTRIBUTOR AND OTHERS		Compound Interest(Monthly )	lo 45i 31 /08/2022	07/ 12/2023	2529706.90 j	Join,ly I And'Severally:	InterestAson Order ,Date	, 2529706.90 , ,
I2, MR. SANJAY KUMAR SINGH		CompoundInterest(Mon'hly)	lo.45,3 I /08/2022	07/12/20231	2529706.90 I	Joinlly IAnd,Severally!	InterestAson IOrderIDate:	2529706.90 I	II
^{GANGA DEVI} (GUARANTOR/MORTGAGOR)	i	Compound !#:rue,::ly ,	10 45,3 I /o8reo22t 0 I	7/12/20231	2529706.90 I	Jointly I And,Scvcrally	InterestAso'l 1 Order ,Date	2529706 90

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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 movable/ 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 the final order under the recovery proceeding in pursuance of the Recovery certificate issued under Section 19(22) of Recovery of Debts and Bankruptcy Act 1993.

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Parties are directed to appear before ASHISII KUMAR , Recovery Officer, DEBTS RECOVERY TRIBUNAL PATNA on 16/01/2024

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The Recovery Officer shall realize the amount as per this Certificate in the marmer 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 Tnbunal on this 08/12/2023

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PRESI DING OFFICER 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 TREUNAL PATNA

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2nd Floor, (A. 8 & F Wing) Kaxpuri 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

RC No. 779/2022

Case No: OA/475/2022

Applicant(s): IIDFC BANK

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V rsus

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Defendant(s): MS PANCHSHEEL DISTRIBUTOR AND OTHERS

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Sr. No.	Item of costs	iAmount in Rs.
I.	Fee on the application	28000
2.	Process Fees(Inc. Publication)	0
3.	Advocate Fees	0
4.	Commissioner/ReceiverIvaluation/Security Fee	J0
5.	Miscel laneous Charges	0
	Total Costs: Rs.	28000

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Place: PATNA

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Date: 08/12/2023

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PRESIDtwFFICER DEBTS RECOVERY TRIBUNAL PATNA

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Note: Strike out whichever is not applicable

Hdfc Bank v. Ms Panchsheel Distributor and others

Case brief

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Hdfc Bank v. Ms Panchsheel Distributor and others

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