Allowed

Hdfc Bank v. Amir Hussain and Others

DRT27 Mar 2023OA/787/2022

Case brief

AI extract

What is this about?

This tribunal allowed the bank's application for a Recovery Certificate under the RDBFI Act. The court directed recovery of the principal amount plus simple interest at 8% per annum, adjusting the bank's claimed higher rates based on pandemic conditions.

What did the court decide?

Recovery certificate issued for Rs. 31,23,970/- with simple interest at 8% per annum from the date of filing till realization.

Hdfc Bank versus Amir Hussain and Others — Banking and Recovery | DRT (2023)

¶1

DEBTS RECOVERY TRIBUNAL-2, CHANDIGARH, PRESIDED OVER BY M.M. DHONCHAK

¶2

ORIGINAL APPLICATION NO.787/2022

¶3

DATE OF INSTITUTION:28.03.2022

¶4

DATE OF DECISION: 27^th DAY OF MARCH, 2023

¶5

H.D.F.C. Bank Limited , a Banking Company, carrying on the banking business under the Banking Regulations Act, 1949, incorporated under The Companies Act, 1956 and having its registered office at HDFC Bank House, Senapati Bapat Marg, Lower Parel, Mumbai-400013, whereas Branch at Sohna, District Gurgaon @ Gurugram, Haryana, through Sh. Jatinder Mishra, Assistant Manager (Legal), Regional Office, HDFC Bank Limited, Regional Office, Bank House, Chandigarh, being Power of Attorney holder of the Bank

¶6

....Applicant Bank

¶7

Versus

¶8

Sh. Amir Hussain S/o Sh. Ash Mohammed @ Ash Modh R/o House No. 10, Village Manki @ Mannaki, Tehsil Mewat, District Nuh, Haryana– 122107

¶9

Sh. Ash Mohammed @ Ash Modh S/o Sh. Jal Singh R/o House No. 10, Village Manki @ Mannaki, Tehsil Mewat, District Nuh, Haryana– 122107

¶10

Sh. Hos Khan S/o Sh. Sher Mohammed R/o Village Udaka, Tehsil Mewat, District Nuh, Haryana–122107

¶11

.....Defendants

¶12

Argued by: Sh. Saurabh Bhardwaj counsel for the applicant bank Defendant ex parte vide order dated 16.12.2022

¶13

FINAL ORDER

¶14

Present Original Application was instituted by the applicant bank under Section 19(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as ‘the Act’ for brevity) a gainst the defendants for recovery of Rs.31,23,970/(Rs. Thirty One lacs Twenty Three Thousand Nine Hundred and Seventy only) . It has been filed through Sh. Jatinder Mishra, Assistant

¶15

OA/787/2022 HDFC BANK Vs AMIR HUSSAIN AND ORS 2

¶16

Manager (Agri Legal) of the applicant bank stated to be competent to institute the Original Application vide Power of Attorney dated 16.12.2020, Annexure-A1 (copy).

¶17

The brief facts as per the Original Application are that the defendants had approached the applicant bank for grant of CC facility-I of Rs.16.10 lacs, CC facility-II of Rs. 14 lacs and Dropline Overdraft Facility of Rs.3.10 lacs vide loan application dated 16.05.2018, Annexure-A2 (copy). Defendant No.3 stood as a guarantor for repayment of the loan.

¶18

The applicant bank sanctioned CC facility-I of Rs. 16 lacs, CC facility-II of Rs.6 lacs and Drop line Overdraft Facility of Rs.3 lacs vide sanction letters dated 21.06.2018, Annexures-A3, A4 and A5 (copy) as per the terms and conditions which were duly accepted by the defendants.

¶19

In order to secure the aforementioned credit facilities, the defendants executed various loan and security documents, i.e. demand promissory note dated 25.06.2018, Annexure-A6 (Copy), letter dated 25.06.2018 regarding continuity of demand promissory note, Annexure-A7 (Copy), agreements dated 25.06.2018 regarding secured overdraft/cash creditcum-guarantee-cum-hypothecation, Annexures-A8 and A9 (Copy) and agreement dated 25.06.2018 for dropline overdraft-cum-Hypothecationcum-Guarantee, Annexure-A10 (copy).

¶20

The aforesaid loans were further secured by creation of mortgage by defendant No. 2 in respect of agricultural land measuring 180 Kanals 07 Marlas situated in the revenue estate of Mannaki, Tehsil Mewat, District Nuh, Haryana, fully detailed in para No. 5(v) of the Original Application.

¶21

The documents relating to mortgage are as under:

¶22

i. Registered Mortgage Deed dated 26.06.2018, Annexure-A11 (copy).

¶23

OA/787/2022 HDFC BANK Vs AMIR HUSSAIN AND ORS 3

¶24

ii. Request letter dated 26.06.2018 to the Tehsildar, Nuh, for entry/ mutation of mortgaged property, Annexure-A12 (Copy).

¶25

It is further the case of the applicant bank that the loan facilities were duly availed of by the defendants but they failed to maintain the financial discipline of the applicant bank and resultantly, the loan accounts became irregular and those were declared NPA on 03.04.2021. The applicant bank recalled the entire outstanding amount vide legal notice dated 08.03.2022 along with original postal receipts, Annexure-A13 (colly) (copy), but to no avail.

¶26

It is further the case of the applicant bank that after adjusting debit and credit entries in the loan account, a sum of Rs.31,23,970/- (Rs.

¶27

Thirty One lac Twenty Three Thousand Nine Hundred and Seventy only) is recoverable against the defendants as per statements of accounts dated 04.02.2022, Annexures-A14, A15 and A16 (copy) along with certificate under Bankers’ Books Evidence Act.

¶28

Since the defendants did not repay the outstanding amount, therefore, the applicant bank preferred the present Original Application for issuance of Recovery Certificate.

¶29

Notices of the Original Application were duly served upon the defendants, but since none appeared on behalf of the defendants, thus, the defendants were proceeded against ex parte vide order dated 16.12.2022 .

¶30

In support of the contents of the OA, affidavit of evidence of Sh. Jatinder Mishra, Assistant Manager (Agri Legal) of the applicant bank was filed.

¶31

This Tribunal has heard ex parte arguments advanced by the learned counsel and gone through the record carefully.

¶32

OA/787/2022 HDFC BANK Vs AMIR HUSSAIN AND ORS 4

¶33

It was argued by the learned counsel that in view of unrebutted documentary evidence brought on record, the applicant bank had proved its case against the defendants for recovery of the amount sought. From perusal of Annexures-A1 to A16 , it comes out that the defendants had approached the applicant bank for availing of the loan facilities which were granted to them. It is further clear that the defendants had executed all the relevant documents as stated above in favour of the applicant bank. Unfortunately, the defendants failed to pay back the loan as per terms and conditions of the agreement executed between the parties. From the documentary evidence brought on record, it is proved that applicant bank is entitled to recover a sum of Rs.31,23,970/- (Rs. Thirty One lac Twenty Three Thousand Nine Hundred and Seventy only) from the defendants.

¶34

In so far as pendent lite and future interest is concerned, the applicant bank, in relief clause, has claimed rate of interest @ 12% per annum. In sanction letters dated 21.06.2018, Annexures-A3, A4 and A5 (copy), rate of interest has been mentioned @ 13% per annum with half yearly rests for C.C. facility–I, @ 16% per annum with half yearly rests for C.C. facility–II and dropline overdraft facility, respectively.

¶35

This Tribunal is of the considered opinion that sometimes in appropriate cases the prerogatives of mercy and magnanimity are the brightest jewels in the crown of the Judge. Keeping in view the facts and circumstances of the instant case including the Pandemic Covid-19 affecting businesses, nature of the mortgage property, purpose of loan, i.e. agriculture, present conditions of economy based on agriculture, quantum of loan, prevalent market rates of interest which have gone drastically downhill in yesteryears, while exercising the discretion vested in this Tribunal, this Tribunal deems it just and appropriate to grant uniform simple interest @8% per annum from the date of filing of the OA

¶36

OA/787/2022 HDFC BANK Vs AMIR HUSSAIN AND ORS 5

¶37

till realisation of the amount ordered vide this order. It is ordered accordingly.

¶38

In the result, the Original Application is allowed with costs declaring that the defendants are liable to pay to the applicant bank a sum Rs.31,23,970/- (Rs. Thirty One lac Twenty Three Thousand Nine Hundred and Seventy only) with current and future simple interest @8% per annum w.e.f. 28.03.2022 , till the date of realisation of the amount. The liability of the defendants shall be joint as well as several. Accordingly, the applicant bank shall be at liberty to recover aforesaid amount from the sale of mortgaged/hypothecated property of the defendants in execution proceedings, if not sold earlier under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 or otherwise. If the dues of the bank still remain unsatisfied, the applicant bank shall be at liberty to recover the same by attachment and sale of personal assets of the defendants. The applicant bank is at liberty to enforce the claim through due process of law.

¶39

Issue Recovery Certificate accordingly.

¶40

Parties to appear before Recovery Officer concerned on 09.05.2023 .

¶41

Copy of this order be sent to the applicant bank and the defendants through registered/speed post. This order be also uploaded on the official website of this Tribunal.

¶42

Announced in the open Tribunal (M.M. Dhonchak) Presiding Officer DRT-2,Chandigarh

Hdfc Bank v. Amir Hussain and Others

Case brief

What is this about?

What did the court decide?

Hdfc Bank v. Amir Hussain and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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