Allowed

Punjab National Bank v. Merrers Kavya Electricals

DRT3 Jan 2024OA/329/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal allowed the applicant bank's application for a recovery certificate against four respondents (a firm and its guarantors) for an outstanding loan of Rs. 26,51,069.70 based on unchallenged documentary evidence and admission of liability, granting costs and confirming the charge on secured properties.

What did the court decide?

Recovery Certificate issued for Rs. 26,51,069.70 plus interest and costs; defendants held jointly and severally liable.

Punjab National Bank versus Merrers Kavya… — Contract and Commercial Disputes | DRT (2024)

¶1

O A. 32SlZo22lORT-Guwaha!

¶2

IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

¶3

(rribunarorAssam, Nasr-. ,$;X,lr5"rj::lfflfinJo;)n,,, o.**ar p,adesh & rripura) Before Shri Shiv Sharan Dubev. presidinq Officer

¶4

O.A. No. 32912022

¶5

ln the matter of -

¶6

Punjab Nationat Bank (Erstwhite United Bank of tndia) Guwahati Metro Branch. "Dihang Arcade', A.B.C. point G.S.Road, Opp Dona ptanet. Guwahati, Pin-781005

¶7

......... Appticant

¶8

Vs.

¶9

l. Kavya Electricals, Prop. Sri Gaurav Kumar Kedia Golden Heights Buitdino. Chatribari, Guwahati_78-i OO8

¶10

Sri Gaurav Kumar Kedia, S/o Bimal Kumar Kedia R/o G-1, Gotden Heights Building, Chatribari. Guwahati-78.t OO8.

¶11

Mr. Sanjoy Pacheriwala, S/o Veer Kumar^pacheriwala llo P:201.^{GotdenHeishts Buitding,} Chatribari, Guwahati-78.1 OO8.

¶12

Mrs. Sunita Pacheriwala,
W/o Mr. Sanjoy pacheriwala
R/o 8-204, cotden Heights Buitding,
Chatribari, cuwahati-761 OO8.

¶13

......................... Defendants

¶14

Presence of the Counsel:

¶15

For the Applicant : Mr. Anit Bharali Mr. Kailash Barman, Advocates

¶16

For the Defendants : None (Ex-parte).

¶17

Oated :03l0il2024

¶18

JUDGMENT

¶19

This is an application under section 19 of the Recovery of Debts Due to Banks and Financial lnstitutions Act, 1993 filed by the punjab Nationat Bank (Erstwhile United Bank of lndia) Guwahati Metro Branch, "Dihang Arcade,,, A.B.C.

¶20

d;ttla;l"ro oblorlt4e Prealding OtrCer ' DRT, Guwahela

¶21

¶22

6.A 329/2022lDRT4uwahari

¶23

Point, G.S.Road, Opp Dona Planet, Guwahati, Pin-781005, with a prayer to issue Recovery Certificate for the sum of Rs. 26,51,069.70 (Rupees Twenty-Six Lakhs Fifty-One Thousand Sixty-Nine and Paisa Ssvonty) only as on 31.07.2022 against the defendants with pendentelite and future interest thereon at the contractual rate till realization along with cost and other relief.

¶24

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

¶25

The Defendant No. 1 is the proprietorship firm and defendant No. 2 is the proprietor of the firm and 3 & 4 are the personal guarantors of the loan availed to the defendant No.1.

¶26

The defendant No.1 represented by defendant No. 2 approached the applicant bank vide Loan application on 12.04.2013 and the competent authority of the applicant bank has approved, Sanction of Limit 20.00 Lakhs (Rupees Twenty Lakh) only vide sanction letler dated 24.04.2013. The defendants atso accepted a the terms & conditions of the sanction lefier dated 24.04.20'13. The applicant stated that as^per the sanction letter, the applicable rate of interest was 13.250lo per annum with monthly rest. The same loan was sanctioned against the Primary Security: Hypothecation of stock in debts & books debts and Addl. Securities: Lien of RIP no-1659'100007757 fot Rs. 3,00,000/- to be matured on 23.04.2016, 2. Lien of RD(New) for Rs.^'10000/- per month for 36 months (A,/c 7771), Personal Guarantee of 1. Sri Sanjoy Pacheriwala 2. Mrs Sunita Pacheriwala W/o Sri Sanjoy Pacheriwala.

¶27

ln terms of the sanction letter dated 24.04.2013 the following documents are executed by the defendant no-'l represented by defendant no- 2 to avail the loan of Rs.20.00 Lakh only.

¶28

Demand promissory note dated 24.04.2013 for Rs. 20.00 Lakh only.

¶29

Lefter of Lien daled 24.04.2013.

¶30

Letter of continutty did24.04.2013.

¶31

Hypothecation Agreement did 24.04.2O13.

¶32

Consent clause by borrower executed by defendant No-1 represented by defendant No-2 in favour of the applicant bank on 24.04.2013.

¶33

Declaration of Sole Proprietorship executed by defendant No-1 represented by defendant No- 2 in favour of the applicant bank on 24.04.2013.

¶34

sll*l,[+d:e. Presiding Offi+r' DRT, Guwahati^\W

¶35

¶36

oA. 32gr2ozzDRT-GBahati

¶37

Letter of Guarantee executed by defendant No- 3 & 4 in favour of the applicant bank on 24.O4.2013.

¶38

L Consent Clause executed by defendant 3 & 4 in favour of the applicant Bank on 24 .O4 .2013 .

¶39

ln continuation of the said loan defendant No-1 represented by Defendant

¶40

No-2 executed the Balance Conlirmation Lefter dated 1'l|.08.2014, confirming the balance amount of Rs. 20,68,092.00 as on 3'l.07.20'14 in favour of applicant bank.

¶41

ln continuation of the said loan defendant No-l represented by Defendant

¶42

No-2 also executed renewal loan documents as follows: -

¶43

Demand promissory note dated 17.05.2016 for Rs. 20.00 Lakh only.

¶44

Letter of Lien dated^'17.05.2016.

¶45

Letter of continuity dated 17.05.2016.

¶46

Hypothecation ofAgreement dated 17.05.2016 executed by Oefendant No-^.l represented by Defendant No-2 in favour of applicant Bank.

¶47

Consent Clause executed by defendant No-1 in favour of the applicant Bank on17.05.2016.

¶48

A balance confirmation Letter execuled by defendant in favour of the applicant bank on 17.05.2016.

¶49

ln continuation of the said loan defendant deposited the loan amount on 22.09.2016 an amount of Rs. 70,000/- and atso defendant No-1 represented by Defendant No-2 executed the Balance Confirmation Letter dated 31.05.2019, confirming the balance amount of Rs- 19,95,285/5'las on 30.04.2019 in favour of applicant bank.

¶50

The defendant No-1 represented by defendant No. 2 approached the applicant bank for restructure of cash credit facility and the competent authority of the applicant bank has approved and Sanctioned of over Limit Rs 2O,89,5OO.OO Lakhs (C.C-Rs. 20,00,000/- to continuity on existing terms of sanction) and Funded lnterest Term Loan (FITL): Rs.89, 500/- only vide sanction letter dated 29.1,1.20,19. As per the sanction letter, the applicable rate of interest was^,l1.2Oo/o per annum for Funded lnteresl Term Loan (FITL). The same loan was sanctioned against the Security Primary Security: Hypothecation of all fixed & current Assets of the Firm (present and future) and Collateral Securities: '1. Lien of Bank's TDs amounting to Rs.1,58,000/- in the name of Firm and Personal Guarantee of proprietor Mr. Gaurav Kedia.

¶51

ln terms of the sanction letter did. 29.'11.2019 the following documents aIe

¶52

Shlcl"au-W,, P*"id,eo#*t^{o ll24-l} DRT, Guwahali

¶53

¶54

O A 329t2022/ORT-cMhati

¶55

executed by the defendant no-1

¶56

represented by defendant no- 2 to avail the loan of

¶57

Rs. 89,500/-only.

¶58

Demand promissory note dated 301 1 .20'19 for Rs. 89,500/- only executed by defendant no-1 represented by defendant no- 2 in favour of applicant Bank.

¶59

Hypothecation Agreement dated 30.11.20'19 executed by defendants No-1 represented by defendant 2 in favour of applicant Bank. Agreement of Term loan dad 30.11.2019 executed by defendants No-1 represented by defendant 2 in favour of applicant Bank.

¶60

The conduct of the defendanis in Cash Credit account A,/C No1659250000240 and Funded lnterest Term Loan (FITL) A/c No- '1659300003193 had been highly irregular and particularly the repayment of the loan is in violation of terms stipulated in the letter of sanction. As a result, defendant's default lo repay the loan in the aforesaid account kept and maintained in the usual ordinary course of the applicant bank's business and there accrued thereon Rs.26,51,069.70 as on. 31.O7.2022.

¶61

The defendants had availed the said loan facilities i.e. Cash Credit Loan and Funded lnterest Term Loan (FITL) from the applicant bank but have not paid the outstanding loan amount as per terms and conditions as agreed upon with the applicant bank, in spite of repeated demands and request by the applicant bank. As the defendants failed to repay the loan amount, the loan accounts became NpA on 31.03.2020. After the accounts became NPA the applicant bank issued notices for repayment ofthe due amount, but the defendants failed to repay the loan amount.

¶62

The applicant bank thus became constrained to file the present Original Application for the recovery of Rs. 26,51,069.70 (Rupees Twenty-Six Lakhs FiftyOne Thousand Sixty-Nine and Paisa Seventy only as on 3,1.07.2022 along with interest and cost of the application.

¶63

Afrer tiling of the OA the Tribunal issued notices upon the defendants through registered post and the applicant bank filed service report on 04.11.2022 and brought on record the postal receipts along with track consignment report which shows that notices have not been served upon the defendants. Thereafrer the Tribunal ordered paper publication of notice upon the defendants and the applicant bank issued notice

¶64

.*ilN{,-^an'Q"k, P,*dinsffitoll2+ I oRT. Guwaharti

¶65

¶66

o.A 3292022/DRT-cuwahati

¶67

to the defendants on^j7.11.2022 thtough paper publication in two newspapers namely "Dainik Assam" and "The Times of lndia,'. Even after issuance of notice through paper publication also there was no represenlation on behalf of the defendants eilher by the counsel or the person and hence the defendants were set ex_pane on 20-04-2023 and their right to file written statement cum evidence on affidavit was closed and the matter was listed for hearing on behalf of the applicant bank.

¶68

Supporting the claim of the applicant bank Mr Guru prasad Talukdar, Chief Manager of the Applicant Bank has filed evidence on affidavit coupled with the security documents marked as Exhibit AW-l to AW-32 supporting the claim of the applicant bank.

¶69

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

¶70

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 claim 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 24.O4.2013, 7.05.2016 & 30.fi.20i9. Deposit Voucher is dated 22.09.20'16. Balance Confirmation Letters are dated i7.05.2016 & 3.1.0S.20.t9. The account became NPA on 31.03.2020 and the OA has been filed on 19.08.2022. Hence, the OA is filed welt within the period of timitation and this Tribunal having a jurisdiction to adjudicate the Original Application.

¶71

Considering the unchallenged / unrebutted version of Mr Guru prasad Talukdar, the applicant's witness and allthe documents marked as exhibits, including duly certified copy of the statement of account along with interest calculation sheet tu"ffi;Pf:l

¶72

DRT, Guwahati

¶73

¶74

oA. 32Et2oz2,/DRT{u|ahali

¶75

maintained by the applicant Bank in it,s regular course of business, I hold that the applicant is entitled to get the Recovery Cerlilicate as prayed for.

¶76

rn the resurt, the present originar Apprication No. 32g of 2022 is aflowed with cost as under: -

¶77

The defendants No. 1, 2, 3 & 4 are joinfly and severally liable to pay to the applicant bank a sum of Rs. 26,51,069.70 (Rupoes Twentysix Lakhs FiftyOne Thousand Sixty-Nine and paisa Seventy only with pendentelite and future interest @13.250k p.a. with monthly rests from 01.08.2022 tiI the date of full paymenurealization and also cost of the application.

¶78

ii) The charge of the certificated amount be kepl alive on hypothecated properties, as described in 34 ofthe OA tillthe amount is realized in full.

¶79

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

¶80

iv) The applicant bank is also entifled to proceed against the personal assets and properties of the defendants towards recovery of the dues.

¶81

v) The applicant bank is entifled to the costs of the O.A. which includes the advocate fees of the applicant bank. Applicant is directed to ,ile the cost memo within 2 weeks from today.

¶82

vi) lssue Recovery Certificate accordingly for a sum Rs.26,51,069.70 (Rupees Twenty€ix Lakhs Fifty-One Thousand Sixty_Nine and paisa Sevonty only in favour of the applicant bank against the defendants No. .1,2,3 & 4.

¶83

vii) Communicate copy of this order to the concerned parties. This order is dictated and corrected by the undersigned.

¶84

Judgment dated 3d January 2024, signed and pronounced in the Tribunal loday under my signature.

¶85

Copy of the JudgmenuFinat Order be uploaded in the Tribunal,s Website and file be consigned to Record Room.

¶86

sL,tslav-A,rb"* allot12+ (l (Shiv Shararl Dllbey)^w Presiding Officer DRT, cuwahati.

Punjab National Bank v. Merrers Kavya Electricals

Case brief

What is this about?

What did the court decide?

Punjab National Bank v. Merrers Kavya Electricals

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

Similar cases

Rohit Chopra versus Ecl Finance Ltd.

Bank of Baroda versus Chakradhar

Central Bank of India versus M/s Dharamraj Food Industry And Company and Others

Canara Bank versus M/S Tushar Furniture Udyog

United Bank of India versus M/s Om Shivam Morden Mill Pvt.Ltd

Bank of Baroda versus M/s Hosiery and Fashion World and others