Allowed

Bank of Baroda v. Messers Divya Patanjali Sewa

DRT15 Jul 2024OA/227/2023

Case brief

AI extract

What is this about?

The applicant Bank filed an application under Section 19 of the RDBFI Act seeking a recovery certificate. The Tribunal found the defendants liable, as the account was classified as NPA, there was no defense raised, and the application was within the limitation period.

What did the court decide?

Recovery certificate issued for Rs. 32,24,790.75 including pendent lite and future interest at 11.95% p.a., along with costs and directions to proceed against secured and personal assets.

Bank of Baroda versus Messers Divya Patanjali Sewa — Banking and Recovery | DRT (2024)

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O A. 227l2023lDRT-cuwahati

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IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

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(North Eastern Region)

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(Tribunal of Assam, Nagaland, Meghalaya, Manipur, I\rizoram, Arunachal pradesh & Tripura)

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Before Shri Shiv Sharan Dubev. Presidinq Officer

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O.A. No. 22712023

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ln the matter of -

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BANK OF BARODA Jorhat Branch.

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A. T. Road, Jorhat, Assam-785001.

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Applicant

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Vs.

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I. M/S DIVYA PATANJALI SEWA Represented by Prop. Mrs. Sitat Gupta Wife of Shtrughan Kanu C/o Main Bhawan Building,

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R.B. Lane, Jorhat, Assam-7BSOO.l.

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MR. SHTRUGHAN KANU

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Son of Sri Manik Chandra Kanu Resident of Divya Patanjali Sewa, Rai Bahadur Lane, Jorhat, Assam.

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Defendants

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Presonce of ihe Counssl:

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For the Applicant : Mr Bikash Sharma, Mr K. N. Deka, Advocates For the Defendant No. 1 : Mr. Purushottam Didwania, Mr. Amit Kumar Agarwal, Advocates (Right to file WS cum EA ctosed) For the Defendant No. 2 : None (Ex-parte)

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Dated 1510712024

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JUDGMENT

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This is an application under section 19 of the Recovery of Debts Due to Banks and Financial lnstitutions Act, '1993 fited by the BANK OF BARODA, Jorhat Branch, A. T. Road, Jorhat, Assam-785001, with a prayer to issue Recovery Certiricate for the sum of Rs. 32,24,790.75 (Rupees Thirty-Two Lakhs Twenty_Four Thousand Seven Hundred Ninety and Paisa Sevsnty-Five) only as on ZO.OS.2023 against the defendants with pendentelite and future interest at the contractual rate of 11.95% per annum at monthly rests ti realization atong with cost and other relief. Sl;rffr#

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Sl;rffr# PresidinS Omcel^- | DRT. Guwehatl^w

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O.A. 2222023loRT€ur.hati

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

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The Defendant No. 1 M/s Divya Patanjali Sewa represented by prop. Mrs. Sital Gupta, is the main borrower. The Defendant No. 2 Mr. Shtrughan Kanu is the Guarantor.

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The Defendant No.^'l applied for financial assistance on 18.12.20.17 of Rs 30,00,000/- (Rupees Thirg Lakhs Only) as WC loan for retail shop of patanjali and Ayurvedic Product business.

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Upon an application submitted by the above named defendant the applicant bank sanctioned vide Sanction Letter dated 22.12.2017 and granted WC loan of Rs.30,00,000/- against hypothecation of Stock in trade. The loan Account Number was WC-79340500000054. The said loan facility was for one year and subiect to review and applicable rate of interest 11.70o/o p.a.

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The terms and conditions sBt forth in said sanction letters of the applicant bank were duly accepted by the defendants and accordingly in consideration of the applicant bank sanctioned WC Loan of Rs.30,OO,OOO^ on 22.,12.2017 as WC loan for Business and the defendant executed following documents/agreements to secured aforesaid loan and/or for availing aforesaid loan facilities.

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(i) Letter of Guarantee (iD Loan Agreement. Cum Hypothecation deed for priority/Non-priority Sector Advances.

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After confirming to the above and all other requisite formalities, the defendant availed the said WC. Loan bearing Account No. WC_ 7934O5OOOOOO54 of the applicant Bank of Baroda, Jorhat Branch. The said account maintained in the books of account of the applicant bank in its usual and regular course of business. All the amount paid to lhe defendant and all repaymenu deposit made in the said loan Accounl from time to time along with all interest accrued in lhe said account from time to time were duly entered/recorded therein in the regular, usuat and ordinary course of the business of the applicant bank in its books of account (Ledgo0.

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SLingtaro^^** 'm+1't,::l#IoYq'

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o.A 227,zo23uDRT-cuwahati

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The Defendants have submitted Request letter for Renewal of credit facility of Rs.30,00,0001 and the Branch has Sanctioned the Credit facility vide Sanction Letter dated 15.02.2019 and granted WC loan of Rs 30,OO,OO0/- against Hypothecation of stocks in trade. The loan Account Number was WC79340500000054. The said loan facility was granted for a period of One year rate of interest 11.95% p.a. and in default in payment of monthly lnteresvprincipal instalment repayment, excess drawing in 2o/o p.a. on the defaulted amount shall be charged covering the period of default. ln regard to WC Loan of Rs.30,00,000^, the defendant had executed the under mentioned documents towards creation security interest & repayment of the said loan and delivered the said documents to the applicant bank along with above mentioned Annexures as aforesaid :-

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(i) Sanction Letter for Renewal. (ii) Letter of Guarantee

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The said account of the defendant reflects that the defendant became highly irregular in operating the said account in breach of the covenants made in the documents executed by the defendant. The defendant was pursued for regularization and adjustment of the said account but they failed to regularize the account in spitE of repeated request and demand made on b€half of the applicant bank and also repeated assurance to do so on behalf of the defendant. As a result, as on 20.05.2023 there is an accrued total outstanding liability of Rs.32,24,790.75 in the said account.

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As the loan account being the WC Loan bearing Account No. WC79340500000054 of the defendant was running extremely irregular and due to nonpayment of principal amount and interest, the said account was classified as NonPerforming Asset on 23.01.2023.

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The outstanding amount due with interest etc. in the accounts of the defendant calculated up to 20.05.2023 for loan Account No. 79340500000054 comes at Rs.32,24,790.75 as^per copy of the statement of account duly maintained st-,*W1g;ffi Presrdng 9ftclr |^/l t, DRT, Guwaheli^</sup>

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oA 227l2023/oRT-cuweharr

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by the applicant and certified under the lnformation Technology (Amendment) Act, 2002. The defendants are liable to pay the said amount to the applicant bank.

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Since the said account of the defendant had been running irregularly for quite some time and the defendant did not take steps to regularize/adjust lhe account, the Bank had issued recall notice and demand. lnspite of said Recall Notice and further repeated request and demand made orally and in writing by and on behalf of the applicant bank and assurances given by the defendant from time to time, the defendant failed to revive and regularize the said loan account. Thersafter, Demand, notice was also sent, but in vain,

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The applicant bank begs to state that the defendant No.1 have acknowledged their liability by confirming batance amount of dues to be repaid to the applicant bank in WC vide Letter of acknowtedgement of debts dated 10.12.2020 amounting to Rs.29,97,936.44 & Letter of acknowtedgement of d6bts dated 25.0'1.2023 amounting to Rs.31,83,060.85.

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The applicant bank thus became conskained to lile the present Original Applicaiion for the recovery of Rs. 32,24,790.15 (Rupe6 Thirty-Two Lekhs TwontyFour Thousand Seven Hundrod Ninety and paisa Seventy-Five) only as on 20.05.2023 along with interest and cost ofthe application.

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After tiling of the OA the Tribunat issued notices upon the defendants No. 1 & 2 through registered post and the applicant bank fited service report on 04.09.2023 and brought on record the postal receipts along with track consignment report which shows that noticas have been served upon the defendants No. 1 & 2. Hence service is completed upon both the defendants No. 1 & 2. The learned counsel for defendant No.1 had appeared on the same day i.e. on 04.09.2023 by fiting Vakatatnama and sought time to file written statement cum evidence on affidavit which was duly permitted. Thereafter, the case was listed on several occasions, but the written statement cum evidence on affidavit has not been filed by the defendant No..l. Hence. the right of the defendant No. 1 to fire written statement cum evidence on affrdavit was closed on 24.11.2023. lt is also observed that even after proper service of rlotice upon sl,,

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oa z27,zo23/DRT€uwahair

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the defendant No. 2 there was no representation on behatf of the defendant No.2 either by the counsel or the person and hence the defendant No.2 was set ex-parte on the same day i.e. on 24.11.2023 and his right to file written statement cum evidence on affidavit was closed and the matter was listed for hearing on behalf of the applicant bank.

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Supporting the claim of the applicant bank Mr. Aman Kumar, Chief Manager of the Applicant Bank has filed evidence on afiidavit coupled with the sscurity documents marked as Exhibit No. 1 to^'l l 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 defendants as per pleadings made in the Application, supported by evidence on affidavit of their witness who affimed on oath the execution of the security and other documents by the defendants and also execution of their own documents relied upon, which have been marked exhibils.

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Considering the facts and circumstances of the case, I am of the considered view that the document filed by the applicant bank are supporting the clajm of the applicant bank and establishing the liability of the defendants. lt is proved that the defendants are^jointly and severally liable to pay to the applicant bank the claim made in the Original Application. The loan was obtained and documents have been executed on 22.12.20'17 & 15.02.2019. Acknowledgement of Liability are dated 10.12.2020 & 25.01.2023. The account became NPA on 23.01.2023 and the OA has been filed on 21.06.2023. Hence, the OA is filed well within the period of limitation and this Tribunal having a iurisdiction to adjudicate the OriginalApplicaiion.

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Considering the unchallenged/unrebutted version of Mr. Aman Kumar, the applicant's witness and allthe documents marked as exhibits, including duly certified copy of the stalement 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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e[ir,qtra,, h"Lr1 lwt Pres,dine orfctr I DRT Guwahalr

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OA^{227l2023/oRT-Guwahali}

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ln the^{result' the present OriginalApplication No 227 ol2023 is allowed with}

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cost^{as under: -}

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(i) The^{defendants No l& 2 are iointly and severally liable to pay to the} applicantbankasumofRs.32,24,790.75(Rupg3sThirty.TwoLakhs Twenty-Four^{Thousand sevenHundredNinoty and PtbaSovonty-Fivo)} only^{with pendentelite and luture intelest @11 95% p'a with monthlyrests}

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'rom2l.0s.2o23tillthedateoffullpaymenurealizationandalsocostofthe aPPlication'

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(ii) The^{chargeof the certiticatedamount be kept aliveon hypothecated} properties, as^{described in 3-A of the OA till the amount is realizedin full'}

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(iii) The^{applicant bankis entitledto proceed against the secured items towards} recovery^{of the debts'}

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(iv) The applicant^{bank is also entitledto proceed againstthe personal assets and} properties of the^{defendants towards recovery of the dues}

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(v) The applicant^{bank is entitled to the costs of the OA which includes the} advocate^{feesof the applicantbankApplicant is directedto file the cost memo} within 2 weeks^{from today.}

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(vl) lssue Recovery certificale^{accordingly for a sum R3' 32'2't'790'75 (Rupeos} Thirty-Two Lakh3^{Twonty-FourThouatndSovgn Hundied Ninetyand} Paisa Sovsnty-Fivo)^{only in favour of the applicantbank againstthe} dofendants No^{'l & 2.}

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(vii) Communicate copy of this order to the^{concemed parties.}

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This order is dictated and corrected^{by the undersigned.}

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Judgment dated 15h Jvly 2024, signed and^{pronounced in the Tribunaltoday}

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under my signature.

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Copy of the JudgmenuFinal Order be uploadedⁱⁿ the Tribunal's Website and

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file be consigned to Record Room.

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sLr#aff#4u" (Shiv Sharan Dube})^I U Presiding Officer ORT, Guwahati.

Bank of Baroda v. Messers Divya Patanjali Sewa

Case brief

What is this about?

What did the court decide?

Bank of Baroda v. Messers Divya Patanjali Sewa

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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