Allowed

Bank of India v. M/s.Evershine Trading Corporation

DRT28 Dec 2023TA/465/2023

Case brief

AI extract

What is this about?

The tribunal allowed an application for recovery of dues under the RDB Act after finding the claim proven. It reduced the interest rate from contractual terms to simple interest at 11% p.a. due to contractual rates having come down, permitting recovery from the defendants jointly and severally.

What did the court decide?

Recovery of Rs.2,55,21,547/- with simple interest at 11% p.a., costs, and issuance of Recovery Certificate.

Bank of India versus M/s.Evershine Trading Corporation — Banking and Recovery | DRT (2023)

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BEFORE THE DEBTS RECOVERY TRIBUNAL –II AT CHENNAI

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Dated this the 29^th day of April, 2024

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PRESENT: SHRI T. RAJESH

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PRESIDING OFFICER

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TA No.465 of 2023

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(Originally filed before DRT-I Chennai as OA No.635 of 2019 and thereafter transferred to this Tribunal and renumbered as TA No.465 of 2023)

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Bank of India Anna Nagar Branch W-124, New No.41, III Avenue Anna Nagar, Chennai – 600 040 Represented by its Constituted Attorney …Applicant

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Versus

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M/s Evershine Trading Corporation 92/4, 2^nd Main Road, Gandhi Nagar

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Adyar, Chennai – 600 020 Represented by its Partners

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Mr. Benno Crispin Gandhi &

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Mrs. Jennifer Mary Gandhi

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Also at

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No.18/23, 2^nd Floor, 3^rd Cross Street New Corporation Shopping Complex R.A. Puram, Chennai – 600 028

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Mr. Benno Crispin Gandhi S/o Mr. S. Gandhi 7/1, Orchid Villa, East Circular Road Raja Annamalaipuram, Chennai – 600 028

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Mrs. Jenifer Mary Gandhi D/o Mr. S. Gandhi 7/1, Orchid Villa, East Circular Road Raja Annamalaipuram, Chennai – 600 028

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Mr. S. Gandhi S/o Mr. Sami Kannu 7/1, Orchid Villa, East Circular Road Raja Annamalaipuram, Chennai – 600 028

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Mrs. Lousia Gandhi W/o Mr. S. Gandhi 7/1, Orchid Villa, East Circular Road Raja Annamalaipuram, Chennai – 600 028 …Defendants

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Counsel for the Applicant Bank : M/s M.P. Venkateswaran Defendants : Ex- parte

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CORRIGENDUM TO FINAL ORDER DATED 28.12.2023

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This OA was finally disposed off vide order of this Tribunal dated 28.12.2023, However, at the time of preparation of the final order due to typographical error the date of the final order in the first and last pages have been wrongly mentioned as 29^th December, 2023 instead of 28^th December, 2023. Hence the date of the order is corrected to be read as 28^th December, 2023 instead of 29^th December, 2023.

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The remaining portion of the final order dated 28.12.2023 remains unaltered.

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This Corrigendum shall form part of the original order dated 28.12.2023. A copy of this order be communicated to the parties concerned accordingly.

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Sd/(T. RAJESH ) PRESIDING OFFICER DRT-II, CHENNAI

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BEFORE THE DEBTS RECOVERY TRIBUNAL –II AT CHENNAI

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Dated this 29^th day of December, 2023

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PRESENT: SHRI T. RAJESH

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PRESIDING OFFICER

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TA No.465 of 2023

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(Originally filed before DRT-I Chennai as OA No.635 of 2019 and thereafter transferred to this Tribunal and renumbered as TA No.465 of 2023)

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Bank of India Anna Nagar Branch W-124, New No.41, III Avenue Anna Nagar, Chennai – 600 040 Represented by its Constituted Attorney …Applicant

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Versus

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M/s Evershine Trading Corporation 92/4, 2^nd Main Road, Gandhi Nagar

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Adyar, Chennai – 600 020 Represented by its Partners

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Mr. Benno Crispin Gandhi &

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Mrs. Jennifer Mary Gandhi

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Also at

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No.18/23, 2^nd Floor, 3^rd Cross Street New Corporation Shopping Complex R.A. Puram, Chennai – 600 028

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Mr. Benno Crispin Gandhi S/o Mr. S. Gandhi 7/1, Orchid Villa, East Circular Road Raja Annamalaipuram, Chennai – 600 028

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Mrs. Jenifer Mary Gandhi D/o Mr. S. Gandhi 7/1, Orchid Villa, East Circular Road Raja Annamalaipuram, Chennai – 600 028

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Mr. S. Gandhi S/o Mr. Sami Kannu 7/1, Orchid Villa, East Circular Road Raja Annamalaipuram, Chennai – 600 028

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Mrs. Lousia Gandhi W/o Mr. S. Gandhi 7/1, Orchid Villa, East Circular Road Raja Annamalaipuram, Chennai – 600 028 …Defendants

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Counsel for the Applicant Bank : M/s M.P. Venkateswaran Defendants : Ex- parte

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FINAL ORDER

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This application is filed by the applicant bank under Section 19(1) of Recovery of Debts and Bankruptcy Act, 1993 against the defendants for recovery of a sum of Rs.2,55,21,547/- together with interest at the rate of 13.85% per annum with monthly rests from the date of filing of the application till the date of realization in full along with costs of this application and for schedule of properties..

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The above Original Application is filed before DRT-I Chennai and stood transferred to this Tribunal and renumbered as above.

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The case of the applicant can be encapsulated as follows: -

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The 1^st defendant represented by its Partners, defendants 2 and 3 approached the applicant for grant of credit facility for its granite business by submitting a loan application dated 8.8.2014 and the applicant considering the said request granted a Cash Credit Limit of Rs.1,85,00,000/- vide sanction letter dated 30.09.2014. The defendants 2 to 5 executed guarantee agreements on 17.11.2014. The 1^st defendant represented by defendants 2 and 3 as its Partners executed various loan and security documents on 17.11.2014. The 2^nd defendant deposited the title deeds of the properties more fully described in the schedule to the OA with an intention to create equitable mortgage over the same

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and confirmed the same by executing Memorandum of Deposit of Title deeds dated 17.11.2014 registered as Doc. No.3403 of 2014, SRO, Mylapore.

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It is further stated that even though the defendant had obliged to repay the amount promptly and regularly, but failed to do so resulting in default in repayment and hence the account was classified as NPA on 31.12.2016.

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It is contended by the applicant that the applicant’s officials had on many occasions approached the defendants requesting them to regularize the account and despite the same no effort was made by the defendants to get the account regularized or to pay back the amount. It is stated that as no repayment was forthcoming despite repeated request the applicant invoked the provisions of the SARFAESI Act and issued the demand notice under Section 13(2) of the SARFAESI Act dated 02.01.2017 requiring the repayment of the amount due in the account followed by Possession Notice dated 11.04.2017.

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It is also the case of the applicant that despite repeated reminders and requests the defendant failed to make the repayment forcing the applicant to file this OA seeking recovery of the amount due in the account with further interest and costs.

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It is the further case of the applicant that the defendants the though were represented by Ld. Counsel, they did not choose to file their reply statement and hence the chance for filing reply statement was closed. Further, as there was no representation for defendants continuously, the defendants were called absent and set ex-parte on 25.09.2023.

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The applicant had let in evidence through AW-1, who had sworn to a Proof Affidavit in terms of the pleading in the OA and also produced Exhibits A-1 to A- 14 and got the same marked in evidence.

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Heard the Ld. Counsel for the Applicant and considered the contentions as taken in the OA in the light of documentary evidence and proof affidavit.

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The following issues arise for consideration in this matter: -

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(i) Whether the applicant had succeeded in proving the OA claim as against the defendants?

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(ii) What orders are to be passed?

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Both these issues are gone into and decided together.

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The case put forth by the applicant in the Application remains unrebutted as defendants remained ex-parte. The evidence tendered by the applicant remains uncontroverted and undisputed. The evidences put forth by the applicant were found admissible. From the statement of accounts as produced by the applicant, it is evident that the amount as claimed in the OA is outstanding in the account, which the applicant is entitled to get recovered from the defendants and their assets. The claim of the applicant is well within the period of limitation and there is no capitalization of penal interest.

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In view of the fact that the subject loan is a cash credit loan and the applicant has charged interest at contractual rates till the date of filing and further as the

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interest rates have come down the Tribunal is inclined to reject the interest with monthly rests and award simple interest at reduced rates.

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In view of the afore mentioned discussions, the only conclusion this Tribunal can draw is that the applicant had clearly proved the disbursement of the loan, which the applicant is entitled to realize. Hence, TA is disposed off in the following manner: -

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(a) TA No.465 of 2023 stands allowed.

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(b) Applicant is permitted to realize an aggregate amount of Rs.2,55,21,547/with future and pendentelite interest @11% p.a., simple from the defendants jointly and severally, from the date of filing of the OA till realization, after deducting all the amounts received by them during the pendency of OA, and also by selling the schedule mentioned property and other assets of the defendants.

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(c) If the sale proceeds are not found sufficient to cover the amount due and payable to the Applicant Bank, the defendants 2 to 5 are personally liable for all such amounts due under the Loan Accounts.

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(d) Applicant is permitted to realize cost of the proceedings and shall file cost memo within 7 days from the date of the order.

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(e) The Recovery Certificate shall be drawn up and issued to the Recovery Officer in terms of this final order.

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Communicate a copy of the order to the parties concerned in terms of Section

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19(21)(i) of the RDB Act, read with Rule 16 of DRT (Procedure) Rules, 1993.

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(Dictated to PS, transcribed by him, corrected, signed and pronounced by me in Open Court, on this the 29^th day of December, 2023)

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Sd/(T. RAJESH ) PRESIDING OFFICER DRT-II, CHENNAI

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Bank of India v. M/s.Evershine Trading Corporation

Case brief

What is this about?

What did the court decide?

Bank of India v. M/s.Evershine Trading Corporation

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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