Allowed

Canara Bank v. Sri Pankaj Sahani

DRT26 Jul 2023OA/63/2022

Case brief

AI extract

What is this about?

The tribunal allowed the bank's application for a recovery certificate of Rs. 31.88 lakhs, holding that the claim was within limitation due to Supreme Court directions. A charge was kept alive on two hypothecated vehicles.

What did the court decide?

Issuance of recovery certificate for Rs. 31,88,060.30 with interest; charge on two hypothecated vehicles; permission to proceed against secured and personal assets.

Canara Bank versus Sri Pankaj Sahani — Contract and Commercial Disputes | DRT (2023)

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O.A. 6320221D R].c!*6hati

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IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

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(North Eastern Region)

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( rnbunarofAssam, Nagarand, M;gharaya, Manipur, r.,,izo'i#, erunachar pradesh & Tnpura)

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Bofore Shri Shiv Sharan Dubev. presidinq Orficer

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O.A. No.63/2022

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ln the matter of - CANARA BANK llT Guwahati Branch, llT Guwahati Campus, North Guwahati, Kamrup. Assam 78.1039

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................Appticant

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vs'

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i. sri^pankaj Sahani

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Son of Shiva Shankar Sahani

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'"'31hooil,;lllo?El&nil."nBlI";n,,

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............ Defendant

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Presence of lhe Counsel ;

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For the Applicant : Sri M KBora,, Advocate For the sole Defendantthe sole Defendant : None(ex_parte)

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For the sole Defendantthe sole Defendant

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Dated:26.01.2023

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JUDGMENT

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This is an application under section .l g of the Recovery of Debts Oue to Banks and Financial lnstitutions Act, 1993 filed by the CANAM BANK, T Guwahati Eranch, llT Guwahati Campus, North Guwahati, Kamrup, Assam ZBIO39, with a prayer to issue Recovery Certi for the sum of Rs' 3''88'050'30 (Rupees Thirty one Lakh Eighty a,nnr rn''""t" sixty and Paisa Thirty) only as on 31.12.202,r onry against ,n" or,'o'"" n d )nda t with pendentelite and future interest at contractual rate till realization, along with other relief and cost.

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A few facts giving rise to the present application are as under.

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The defendant had approached the applicant bank and applied for financiat

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s(iLs Igrr-.D J...,. e'e*ai"n6-ffi[c7 f 2q 7 U DRT, Guyrahati^'

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O-A 63/2o2zt Rl4lmh.li

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assistance for purchase of vehicle Mahindra Scorpio by Loan Application dated 26.09.2017 and after considering the said application, the applicant^{bank had} sanctioned a credit facility of^{Rs. 9,90,000/-to the defendantwith interestcharged} 8.85%^per annum and to be repaid^{in 84 monthly installmentsof Rs. 15,828.00each'}

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ln connection with the^{sanclionof the Tem Loan of Rs. 9,90,000/- sanc{ioned} by the applicant^{bankand availed by the defendant, Canmobile Agreementdated} 26,09.20lThasbeensignedandexecutedbythedefendantinfavouroftheapplicant bank as security^{for repaymentof the loan facility thereby agreeingto all the terms and} conditions^{laid downin the said Deedof Hypothecationand hypothecatedthe vehicle} purchased out^{of theBankfinanced,morefullydescribedin Schedule A of the OA in} favouroltheapplicantbank.Thedefendanibyexecutingparticularsofvehicle hypothecated^{dated 04 10 2017had acceptedthat the vehicle which wasfinanced by} the applicant^{bank was rec€ivedin good condition from the showroom'}

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Thedefendanthadagainapproachedtheapplicantbankandappliedfor tinancial^{assistance for purchaseof second hand vehicle Hindustan2O2lZPAY} Loader^{by loan application dated 08022018 and after consideringthe said} application,^{the applicantbank by sanction memorandum dated 17022018had} sanctioned^{a credit facilityof Rs 19'OO'OOOOO only to the de'endant with interesl} charged^{9 85%per annum'Thecredit facility was to be repaid in 60 monthly} installments^{of Rs 40'230'00 each The creditfacility has beencoveredby the} CGTMSE^scheme' ln^{connection with the sanctionof term loan of Rs 19'OO'00000} sanctioned^{by the applicantbank and availed by the defendant'Deedof} HyPothecation^{RE: Vehicledated 17 02 2018 hasbeen signed and executed by the} deJendant^{in favourof the appricant bank as securityfor repaymentoI the loan facility} thereby^{agreeingto all the terms and conditionslaid down in the saidDeed} of Hypothecation^{and hypothecated the vehicle purchased out ot theBankfinanced'}

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^financed' uir$fl,,i*,)

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DRT,^Gu*ahati

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O A. 63,2022lt RT.6Mh.li

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morefully described in Schedule B of the OA in favour of the applicant bank. The defendant by executing particulars of vehicle hypothecated dated 23.03.2018 had accepted that the vehicle which was linanced by the applicant bank was received in good condition.

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The defendant availed the aforesaid loan facilities from the applicant bank but have not paid lhe loan amount as per the terms and conditions as agreed upon with the applicant bank, inspite of repeated demands and requests by the applicant bank. As such the two loan accounts of defendant declared NpA on 0i.11.2020. Afrer the accounts became NPA the applicant bank issued notices for repayment of the due amount, but the defendant has neither chosen for repayment of the remaining installments in the term loan accounts nor approached to the applicani bank for settling the term loan accounts.

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The say of the applicant bank is that as per order dated i0.01.2022 passed by the Hon'ble Supreme Court in Misc. Application No. 21 ol 2022 in SMW(C) No. 3 of 2020, the instant suit is filed within period of limitaiion. The Hon'ble Supreme Court in the said order directed that the period from 15.03.2020 li| 28.02.2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respecl of all iudicial or quasiiudicial proceedings.

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The applicant bank thus became constrained lo fle the present Original Application for the recovery of Rs. 31,88,060.30 (Rupees Thirty One Lakh Eighty Eight Thousand Sixty and Paisa Thirty) only as on 31.12.2021 along with interest and cost of the application.

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After filing of the OA the Tribunal issued notices upon the defendani through registered post and the applicant bank ,iled service report on 12.05.2022 and brought on record lhe postal receipt along with track consignment report which shows that the notice has not been served upon the defendant. Thereafler the Tribunal ordered paper publication of notice upon the defendant and the applicant bank issued notice to the

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S[,,t,^{fl^o-nd,"U',.L,,.r} Pr63iding Offrcol I ' )6lc) l)2 v,,1| DRT, Guwahali

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O]|' 63/2o22lDRT€&.h.ti

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defendant on 04.06.2022^{throughPaper Publicationin two newspapers namely} 'The Tifiies ot lndia"^{and 'Daink Assam". Evenafter issuance of noticethrough paper} publication also there was^{no representation on behalf of the delendant eitherby the} counsel or the^{person and hence the defendantwasset ex-parte on 02 O8-2O22} and his^{rightto file written statement cum evidenceon affidavit was closedand the} matter was^{posted for hearing on behalf of the applicantbank'}

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Supporting^{the claimof the applicant bankSri Ananya KumarBhuyan'senior} Manager^{of the applicantbank filed evidenceon alfidavit coupledwith the secutity} documents^{marked as ExhibitAW-1/1 to AW-1/13' supportingthe claim of the applicant} bank.

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Heard^{thelearned counsel for theapplicant bankwho prayedfor issuance of} RecoverycertmcateagainstthedefendantaspefpleadingsmadeiniheApplication' supported^{by evidence on affidavitof their witnesswho affirmed on oath the execution} of the^{securityand otherdocuments by the delendant and also execuiionoI their own} documents^{relied upon'which have been marked exhibits'}

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Considering^{the facts and circumstan@sof the case' I am ot theconsidered} view that^{thedocumentsfiled by theapplicant bank are supportingtheclaimof the} applicant^{bank and establishingthe liabilityof the defendant lt is provedthat the} defendant^{is riabre to pay to the appricantbank the claim made in the original} Application^{The loanwas obtained and documentshavebeen executedon} 26.09.2017,04^{102017'17 'o2 2018& 23 03 2018Thesayofthe applicantbank is} that^{as per orderd aled1O'O'l 'z[22passedby the Hon'ble Supreme Courtin Misc'} Application^{No' 21 ol 2|J22inSMW(C)No'3 of 2O2O'the insiant suit is filed within} period^{of limitationThe Hon'ble Supteme Courtin the said order directed that the} Period^{,rom 15032020lnl 28 02 2022 shall standexcludedfor the purPoseof} rimitation^{as may be prescribed underany general or speciallaws in respect of} alliudicial^{or quasiiudicial proceedingsThe accountbecame NPA on '-l*t:} "l:^

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Shl.J o-"","fl*&,1?]^{q^q,4A.tl} J " {trilrq^ ') DRT. Guwahati

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O A. 63/'2022DRI€mh.ri

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the OA has been filed on 21.02.2022. Hence, the OA is filed wefl within the period of limitation and this Tribunal having a jurisdiction to adjudicate the Original Apptication.

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Considering the unchallenged/ unrebutted version of Sri Ananya Kumar Bhuyan, the applicant's witness and all the documents marked as exhibits, including duly certified copy of the statement of account along with interest calculation sheet maintained by the applicant Bank in it's regular course of business, I hold that the applicant is entitled to get the Recovery Certificate as prayed for.

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ln the result, the present Original Application No. 63 of 2022 is allowed with cosl as under :-

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The sole defendant is liable to pay to the applicant bank a sum of Rs. 31,88,060.30 (Rupees Thirty One Lakh Eighty Eight Thousand Sixty and Paisa Thirty) only with^pendentelite and future interest @8.85% p.a. with monthly rests from 01.0'1.2022 till the date of full paymenurealization and also cost of the application.

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ii) The charge of the certificated amount be kept alive on hypothecated vehicle i.e. Brand Name of the Vehicle- Mahindra Scorpio:S2;, Makers NameMahindra & Mahindra; Chassis No. FGH1K947384A498201; Engine No. VCAT97784; Owners Name- SRI PANKAJ SAHANI, as described in Schedule-A of the OA iill the amount is realized in full.

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iii) The charge of the certificated amount be kept alive on hypothecated vehicle i.e. Brand Name of the Vehicle- Hindustan 2O2 lZ PAY LOADER;, Makers Name- Hindustan; Chassis No. RSBD7970715; Engine No. 6H2597115201O3i Owners Name- SRI PANKAJ SAHANI, as described in Schedule-B of the OA till the amount is realized in full.

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iv) The applicant bank is entitled to proceed against the secured items towards recovery of the debts.

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shrd.4M-D^t t DRT. Guwehat ".,#{II2f

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O.A 632022/DRT4Mh.ri

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v) The applicant bank is entitled to proceed against the peEonal assets and properties of the defendant towards recovery of the debts.

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vi) The applicant bank is entitled to the costs of the O.A. which inctudes the advocate fees of the applicant bank. Applicant is directed to flle the cost memo within 2 weeks from today.

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vii) lssue Recovery Certificate accordingly for a sum Rs. 31,89,060.30 (Rupees Thirty One Lakh Eighty Eight Thousand Sixty and^paisa Thirty) only in favour of the applicant bank against the sole defendanl.

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viii) Communicate copy of this order to the concerned parties.

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This order is dictated and corrected by the undersigned.

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Judgment dated 26th July 2023, signed and pronounced in the Tribunal today

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under my sjgnature.

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Copy of the JudgmenuFinal Order be uploaded in the Tribunal's Website and

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file be consigned to Record Room.

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Sf."vc0.aaa*' &+^&^+ (shiv sharan Dutreibc 1^)-J C Presiding Oflicer DRT, Guwahati.

Canara Bank v. Sri Pankaj Sahani

Case brief

What is this about?

What did the court decide?

Canara Bank v. Sri Pankaj Sahani

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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