Allowed

Bank of Baroda v. Mr. Basudev Sharma

DRT16 Jul 2024OA/128/2022

Case brief

AI extract

What is this about?

The Tribunal allowed the Bank of Baroda's Original Application under S. 19 of the RDBFIA to issue a Recovery Certificate for a sum of Rs. 34,54,718.37 against the defendant, who acknowledged the loan liability. The court confirmed the bank's right to proceed against secured and personal assets.

What did the court decide?

Issued Recovery Certificate for Rs. 34,54,718.37; directed bank to proceed against secured and personal assets; awarded costs.

Bank of Baroda versus Mr. Basudev Sharma — Contract and Commercial Disputes | DRT (2024)

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O A. 12&2022loRT-Guwah.ti

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IN THE DEBTS RECOVERY TRIBUNAL,^GUWAHATI

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(North Eastern Region)

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(Trtbunal of Assam, Nagaland, Meghalaya, Manipur, Mrzoram, Arunachal^{Pradesh& Tripura)}

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Before Shri Shiv Sharan Dubev.^{PresidinoOflicer}

O.A. No. 12812022

ln the mattEr of -

BANK OF BARODA

Ambari Branch, GNB Road, Near AGP Offlce. Guwahati^club, Kamrup (Metro), Guwahati⁷⁸¹⁰⁰¹ ,^Assam.

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. Ap plica nt

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Vs.

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I. MR. BASUDEV^SHARMA,

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S/O- Manmatha^Sharma,

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R/O- House No.67,^{Narengi Housing Colony'} Chandrapur^{Road, District- Kamrup(Metro),}

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Guwahati- 781025.

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Defendant

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Presonce of^{tho Counael:}

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For the ADDlicant^: Mr' Ujwal Saikia, '' Mr' Mrinmoy^{Sharmah, Advocates}

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For the Defendant : Mr. K. K. Nandi, Ms. Rochoita^{Das, Advocates (Ex-parte)}

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Dated:'16.07'2024

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JUDGMENT

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This is an application^{undersection 19 of the Recoveryof Debts Due to Banks} and Financial^{lnstitutionsAct, 1993 filed by the Bank of Baroda'Ambari Branch' GNB} Road, Near^{AGP Office,GuwahatiClub, Kamrup (METRO)' Guwahati781001'} Assam, with^{a prayer to issue Recovery Certificatefor the sum of R3' 34'54'718'37} (Rupees Thirty^{Four Lakh FiftyFour Thousand Seven Hundred Eighteen and} Paisa Thirty^{Sevsn) only as on 08 03'2022 against the sole defendantwith} pendentelite and future^{interestat the rate of 9 1%' 9'55' and under floating option1%} above one^{year MCLR + Strategic Premiumper annumwith monthlyrests till} realization, along^{with cost and other relief}

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:y"w?*DRT. Guwahalr

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o.A. i 2latozzoRl.Guweh.ri

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

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The defendant approached and requested the applicant bank to sanction a car loan of Rs. 27,00,000/- for purchasing a new car. The applicant bank in course of its banking business sanclioned in favor of the defendants, a loan of Rs. 27,00,0001 vide sanction letter dated 13.09.2017 inter alia at an interest @9.1o/o^per annum with monthly rests, the said loan was repayable in 84 monthly installments of Rs.43,578/per month commencing from lhe month of October, 2017.

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The defendant accepted the terms and conditions^{as set forth by the applicant} bank upon which the aforesaid^{sanction was accordedand in pursuance of the} acceptance of the aforesaid^{sanction, the defendanthad executed the under} mentioned documents^{towards creationof repayment of the said loan and also} delivered the said^{documents to the applicantbank' ie(A) lnstrumentof} Hypothecation of^{Vehicledated13.09.2017,(B) B P Notedated 13092017'(C)} DeclarationCumUndertakingCumAuthoritydatedl3Og20'17'(D)Letterof lnstallment with^{Acceleration Clausedated'13 09 2017'}

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The detendant availed^{the saidloanvide account no 39010600000496 of the} applicant bank,^{AmbariBranch.The said account maintained in the bookso' account} of the applicant^{bank in its regular,usual and ordinarycourse of business All the} amount^{paidto the defendantand all repaymenu deposit made in thesaidSecured} Loan Account^{from time to time along withall interestaccrued in the said account from} time to time^{were duly entered/ recorded therein in the ragular' usual and ordinary} course of^{the businessof the applicant bankin its books of account(Ledgeo'}

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The defendant^{again aPproachedand requestedthe applicant bank to sanclion} limitofRs.lo,oo,0oo/.aSoverdrafrfacility.Theapplicantbankincourseofitsbanking business^{sanctioned in favor of the defendants'a secured limit of Rs' 10'00'000/'vide} sanction^{letter dated 06 10'2017 inter alia at an interest @ 9 55% p€r annum'}

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The defendanl^{acceptedthe terms and conditions as set forthby the applicant} bank^{uponwhich the aforesaidsanctionwas accorded and in Pursuanceot the} acceptance^{of the aforesaid sanction' thedefendantshad executedtheunder} mentioned^{documents towards creation of repaym€ntof the saidloan and also}

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O A 126/2022lD8I-Guwahali

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delivered the said documents to the applicant bank, i.e.- (A) Composite Hypothecation Agreemenl dated 06.10.2017, (B) D.P. Note dated 06.10.2017, (C) Declaration Cum Undertaking Cum Authority dated 06.10.2017, (D) Letter of lnstallment with Acceleration Clause dated 06.1 0.20'l 7.

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The defendant availed the said loan vide Account no. 39010400000086 of the applicant bank, Ambari Branch. The said account maintained in the books of account of the applicant bank in its regular, usual and ordinary course of business. All the amount paid to the defendant and all repaymenu deposit made in the said secured loan account from time to time along with all interest accrued in the said account from time to time were duly entered/ recorded therein in the regular, usual and ordinary course of the business of the applicant bank in its books of account (Ledgeo.

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The defendant again approached and requested the applicant bank to sanction limit of Rs. 10,00,000/- as term loan. The applicant bank in course of its banking business sanctioned in fevor of the defendant, a secured limit of Rs. 10,00,000/- vide sanction letter dated 25.05.2018 inter alia at an inlerest under floating option, 1% above one year MCLR⁺ strategic premium per annum with monthly rests.

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The defendant accepted the terms and conditions as set forth by the applicant bank upon which the aforesaid sanction was accorded and in pursuance of the acceptance of the aforesaid sanction, the defendants had executed the under mentioned documents towards creation of repayment of the said loan and also delivered the said documents to the applicant bank, i.e. -(A) lnstrument of Hypothecation of Goods dated 25.05.2018, (B) D.P. Note dated 25.05.2018, (C) Declaration Cum Undertaking Cum Authority dated 25.05.2018, (D) Letter of lnstallment with Acceleration Clause dated 25.05.20'18.

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The defendant availed the said loan vide Account no. 39010600000597 of the applicant bank, Ambari Branch. The said account maintained in the books of account of the applicant bank in its regular, usual and ordinary course of business. All the amount^paid to the defendant and all repaymenu deposit made in the said secured loan accounl from time to time along with all interest accrued in the said account from

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oA 128/zo22lDRT-Cuwahali

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time to time were duly^{entered/ recorded therein in the regular, usualand ordinary} course of the business^{of the applicant bankin its books of account(Ledger.}

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The said account of the^{defendant reflects that thedefendant bscomehighly} irregular in operating the said^{accounts in breach of the covenants madein lhe} security documents executed^{by the defendant.}

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As the loan account^{being BarodaAutoLoanAccount No. 39010600000496,} Overdraft Loan Accounl^{No.39010400000086& Term Loan Account No} 39010600000597 of the^{defendantwas running extremely irregular and due to non-} payment of principal amount and interest,^{the said account classifiedas Non-} Performing Asset^{(NPA) on} 31.01.2021.

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The outstanding amount due^{with interestin the accountsof the defendant} calculated up to 08.03.2022^{for loan AccountNo 39010600000496comesat} Rs.^{'17,38,894.15,} for loan^{Account no. 39010400000086comes at Rs 10'00,042.22} and lastly for^{loanAccount No. 39010600000597 comes at Rs. 7,15,782.00, totaling} Rs. 34,54,718.37 as aforesaid as^{per copy of thestatementof account duly} maintained by the applicant and^{certified under the lnformationTechnology} (Amendment) Act, 2002. The defendant is^liable to^{pay the saidamount to the} applicant bank.

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The defandant has acknowledged^{his liability by confirming balance amountof} dues to be repaid to the^plaintiff bank^{vide letter of Acknowledgementof liability as} dated 11.09.2020, 22.09.2020^{& 12.05.2021.}

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The applicant bank thus became^{constrainedto file the presentOriginal} Application for the recovery of R3. 34,54,718.37^{(Rupe€ ThirtyFour Lakh Fifty Four} Thousand Seven Hundred^{Eightognand PaisaThirty Seven) only as on} 08.03.2022 along with^{interest and costoftheapplication}

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After filing of the OA the Tribunal^{issued notice uponthedefendantthrough} registered^post and the applicant bank^{filed servicereporl on 07 .06.2022 and brought} on record the^postal receipts along^{with kackconsignment report which shows that} notice has not been served upon the^{defendantby name. Thereafterthe Tribunal} ordered^{paper publication} of notice upon the^{defendant and the applicant bank issued}

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S\ilgla^o,"h"1", ",""o.nofP*;o)'21 DRT, Guwahali^d

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o A. l2Ezo2zDRT-Guw6hari

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notice to the defendant through^{paperpublication} in two newspapers namely .fhe Times of lndia " daled 03.07.2022 and "Akhomia Khabof, dated 05.07.2022. Even after issuance of notice through paper publication also there was no representation on behalfofthe defendant either by the counsel orthe person and hence the defendant was sel ex-parte on 17 .08.2022 and the matter was posted for hearing on behalf of the applicant bank. Thereafter the learned counsel for the defendant has appeared and filed an application bearing lA. No. 53512022 with a prayer for recalling the ex_ parle order dated 17.08.2022. Having heard both sides, the said lA. No. 535/2022 was dismissed and accordingly disposed of vide order dated 30.01.2024 and the matter was posted for hearing on behalf of the applicant bank.

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Supporting the claim of the applicant bank Sri Dipak Chandra Rabha, Chief Branch Manager of the Applicant Bank has filed evidence on affidavit coupled with the security documents marked as Exhibit 1 to 26, supporting the claim of the applicant bank.

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Heard the learned counsel for the applicant bank who prayed for issuance of Recovery Certificate against the defendant as per pleadings made in the Application, supported by evidence on affidavit of their witness who affirmed on oath the execution of the security and other documents by the defendant and also execution of their own documents relied upon, which have been marked exhibits.

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Considering the facts and circumstances of the case, I am of the considered view that the documents filed by the applicant bank are supporting the claim of the applicant bank and establishing the liability of the defendant. lt is proved that the defendant is liable to pay to the applicant bank the claim made in the Original Application. The loans were obtained and documents have been executed on 13.09.2017, 06.10.2017 & 25.05.2018. The defendant has acknowtedged his liability by confirming balance amount of dues to be repaid to the plaintiff bank vide letter of Acknowledgement of liability as dated 11.09.2020, 22.09.2020 &^.12.05.2021. The account became NPA on 31.01.2021 and the OA has been f ed on 31|.012022 Hence, the OA is filed well within the period of limitation and this Tribunal having a jurisdictaon to adjudicate the Original Application.

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oA. l28rl2o22loRT.Guwahati

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Considering the unchallenged/unrebutted version of by Sri Dipak Chandra Rabha, the applicant's witness and all the documents marked as exhibits, inctuding duly certifled copy of the slatemenl of accounl 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 Certiflcate^{as prayed for.}

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ln the result, the^present Original Application No. 128 of^{2022is allowed with} cost as under:-

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(i) The sole defendant is liable to^pay to the applicant bank a^sum of^Rs. 34,54,718.37^(Rupees Thirty Four Lakh Fifty^{FourThousandSoven} Hundrod Eighben and Paisa Thirty^{Sovon) only with pendenteliteand} future interest @9.10lo^p.a. with monthly^{restsfrom09.03.2022till the date of} full paymenurealization and also cost of the application.

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

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(iii) The applicant bank is also entitled to proceed against the^personal assets and properties of the defendant towards recovery of the dues.

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(iv) The applicant bank is entitled to the costs of the O.A. which includes the advocate fees of the applicant bank. Applicant^is directed to^{file the} cost memo within 2 weeks from today.

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(v) lssue Recovery Certilicate accordingly for a sum tu, 34,54,718.37 (Rupees Thirty Four Lakh Fifty Four Thou3and Seven Hundred Eighteen and PaBa Thirty Soven) only in favour of the applicant bank against the sole defendant.

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(vi) 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 16th July, 2024, signed and^pronounced in the Tribunal today

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under my signature.

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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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Sfrr,tPt^"^r-^bJ', ,.n*rn"Jhbl)"ffl^o Presiding Ofricer DRT, Guwahati.

Bank of Baroda v. Mr. Basudev Sharma

Case brief

What is this about?

What did the court decide?

Bank of Baroda v. Mr. Basudev Sharma

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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