Allowed

Hdfc Bank v. M/s Suraj Traders

DRT18 Sept 2024OA/34/2023

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal, Patna, allowed an application filed by HDFC Bank for recovery of dues against a borrower and guarantors. Relying on documents and an ex-parte affidavit due to the defendants' absence, the Tribunal determined the liability and issued a Recovery Certificate.

What did the court decide?

Debt of Rs. 41,76,828.10 with interest determined; Recovery Certificate issued; mortgaged assets attached.

Hdfc Bank versus M/s Suraj Traders — Banking and Recovery | DRT (2024)

OA 34 of 2023 1 Jl

DRT_ PATN A

Debts Recovery Tribunal, Patna Karpuri Thakur Sadan, Aashiana Digha Road Patna-800025

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Presiding Officer : Shri KaushalendraYadav

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OA Case No. 34 of 2023

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HDFC Bank Ltd.. Bimla Sadan. Holding No. 801/432, Ward No. 37. Exhibition Road. Patna- 1

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. . . . . . .Applicant

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Vs.

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M/s Suraj Traders a proprietorship concern through its proprietor Ganga Prasad having its unit/shop at Sahar Telpa, Thana-Karpi Shahar Telpa. Arwal. District-Arwal-8044 19.

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Ganga Prasad S/o Gauri Shankar Prasad, at Sahar Telpa, Thana-Karpi Shahar Telpa. Ar\val. District-Arwal-804419.

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Simran Kumari D/o Ganga Prasad R/o at Sahar Telpa. Thana-Karl)i Shahar Telpa, Arwal, District-Arwal-8044 19.

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. . . . . . . Defendants

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Present:

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For the Applicant Shri Bhola Shankar. Advocate For the Defendants None

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Dated : 18,09.2024

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JUDGMENT

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The Applicant bank has made this application u/s 19 of the Recovery ol Debts and Bankruptcy Act, 1993 (here-in-after referred to as Act) on 31.12.2022 against the defendants to recover its debts from defendants of Rs.41.76.828.10 as on 31.10.2022 along with pendente-lite and future interest (th 18% p.a. with monthly rests from 1.11.2022 with costs till realization.

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The application has been filed with the contention that the applicant bank. is a body corporate. under the companies Act 1956 carrying on banking business under License Granted by RBI and registered under banking regulation Act 1949 having its registered office at HDFC Bank House. Senapati Bapat Marg. Lower Parel (West). Mumbai-400013 and one of its Branch Office amongst other places at HDFC Bank limited. Bimla Sadan. Holding no. 801/432. ward no. 37 Exhibition Road Patna- I

OA 34 of 2023 IJ I

DRT, PATN A

Defendant no. 1 is a proprietorship concern, defendant no. 2 is proprietor of defendant no. 1 and defendant no. 2 & 3 are guarantors. Defendant no. I through proprietor defendant no. 2 approached the bank for grant of cash credit loan of Rs.25 lakh on 20.8.2019. which was sanctioned by the bank on 7.11 .2019. Defendants further approached the bank for grant of additional fund WCTL under (IECL scheme of Rs.6,12.000/-. which was sanctioned by the bank on 27.8.2020. Defendants further approached the bank for enhancement of cash credit facility upto Rs.35 lakh. which was sanctioned by the bank on 29.10.2021. Defendants executed the various loan documents in favour of the bank and also defendant no. 2 created equitable mortgage over the property details given at page 23 in schedule-A of OA.

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After availing the sanctioned credit facilities defendants became irregular in repayment of their dues as per agreed terms and failed to adhere to the financial norms of the bank and avoiding the repayment of its dues to the bank, in spite of several assurances given by it to the applicant bank resulting in the account turning as NPA on 2.6.2022.

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Since. the defendants failed and neglected in spite of several reminders to make payment of the dues recoverable to the bank, hence this application has been fIled by the bank.

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The total liability in the loan account is Rs.41,76.828.10 with pendentelite and future interest @ 18% p.a. with monthly rests from 1.11.2022 till the realization.

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This Tribunal issued summons/notices copies of application & paper book to the defendants by registered/speed post on 14.2.2023. requiring them to show-cause within 30 days of the service U/s 19 (4) of the Act & Rule of the DRT [Procedure] Rules. 1993. But the defendants have not appeared. hence. the Registry of this Tribunal has ordered to publish the notice in newspaper and subsequently. substituted service by publication of notice by way of advertisement in newspaper was also made against the defendants on 18.8.2023 in ''Aaj" newspaper.

OA 34 of 2023 1 .Jl

DRT, PATN A

’

Despite the registered summons/notices and publication of notice in newspaper. the defendants have not appeared before this Tribunal to contest the case. The sufficient time has been given to the defendants to defend their case. but they failed to appear and to nIe WS, hence. the Tribunal has passed an order to proceed ex-parte against the defendants on 10.5.2024.

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To prove its case. the applicant Bank has referred various certified photocopies of documents before this Tribunal. The applicant bank has also given evidence on affidavit by way of affidavit by Shri Pappu Thakur. Manager of the applicant bank. The details of documents are as follows:

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SI.No	1 Descriptionof Documents Photocopies	IDate of IExecution	Amount	Signature of Executants	1Ex./ IAnn. No
o	c			al Defendant I&2
a	e		Rs.25 lanl	Bank	a
a )	Letter of contlnulng !uarantee	25.11.2019		Defendants	aJ
4	agreement	25.11.2019	Rs.25lakh	Defendant no. I&2	II
5	Ma documents				5
6	Memorandum			mr Defendant 2
7	s letter		a		R
8	Facility cum hypothecation agreement			e 1&2
9	e		Rs.25laIJ1	Defendantno. I&2	9
10			Rs.25 lakh	Defendantno. 2	10
11	t			Defendantno. 1 &2	11
1)	e letter		Rs.35 lakh	Bank	10
13	r		Rs.35lald1	e I&2
14	Letter contlnulrlg securIty o		Rs.35lakh	e I&2
15	Declaration	5.11.2021		DefendamlF a	--ii
16	Memorandum	5.1 1.2021		e
17	Recall notice	19.12.2022			17

DRT. PATN A

OA 34 of 2023 1.Jl

a of	s 1Ason
account	31.10.2022

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8 Heard arguments and perused the case record.

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Ld. Counsel of applicant bank submitted that the defendants have taken the loan and utilized the same and also executed the various loan documents to secure the loan. Further, submitted that the claim of the bank has been proved by documentary evidence. All the transactions were entered in the ledger of the loan accounts in the name of the defendant duly maintained by the applicant bank in its usual course of business. The interest /compound interest has been charged at such rates, and capitalized at such periodical rests as are permitted by and do not run counter to the directives of Reserve Bank of India.

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It is further submitted by Id. Counsel of applicant bank that there is no stay granted by any Higher Court, in respect of the proceedings of the present OA and requested to issue recovery certificate, as claimed for. in OA.

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It has been established that defendants are living and carrying on their business in the state of Bihar. Cause of action also arose in the State of Bihar. The said claim on the date of filing of application exceeded Rs.20 lacs. The applicant bank is functioning within the jurisdiction of this Tribunal. Therefore. this Tribunal has territorial as well as pecuniary jurisdiction to adjudicate upon the present application.

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On the issue of Limitation. to prove it. the applicant bank has submitted that the applicant bank has declared the account as NPA on 2.6.2022. whereas the present application has been filed on 3 1.12.2022. Even, it is counted for the purpose of Limitation. then it is established that the applicant bank has filed the case within the limitation period. As such. it is established that the present application has been Bled well within the period of limitation.

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Shri Pappu Thakur. Manager of the applicant bank. has filed the affidavit in support of contents of application and the documents as evidence and proved on oath the pleadings and documents of the applicant bank as stated above

OA 34 of 2023 IJI

DRT, PATN A

Section 19(3) of the Recovery of Debts and Bankruptcy Act. 1993 provides that the application u/s S.19 (1) shall be accompanied with true copies of all the documents relied on in support of the claim.

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The rule 12 (10) of the Debt Recovery Tribunal (Procedure) Rules. 1993. provides that if the defendant denies his liability to pay the claim made by the applicant. the tribunal may act upon the affidavit of the applicant who is acquainted with the facts of the case or who has on verification of the record sworn the affidavit in respect of the contents of the application and the documents as evidence.

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The rule 12 (11 ) of the aforesaid Rules. provides that the provisions contained in section 4 of the Banker's Books evidence that Act, 1891 (18 of 1891) shall apply to a certified copy of an entry in a Banker’s Books furnished along with application filed under sub section 1 of section 19 by the applicant.

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Section 4 of Banker’s Books evidence Act, 1891 runs as underS.4. Mode of proof- of entries in bankers’ books.–Subject to fIle provisions of this Act, a certifIed copy of any emIr' in a bclnker's book shall in all legal proceedings be received as prima facie evidence of the existence of such enID’. and shall be admitted as evidence Qf the nIclllers. transactions and accounts therein recorded in even, case u’here. cmd to the same exterrl CIS. the original enID> itself- is no\t bN Ict\v crdnrissihle. but IIOt further or otherwise.

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As such the certified true copies of the documents are admissible in evidence. The statement of account maintained in the ordinary course of business is not only admissible but shall be taken as the correct statement of account. more so since the entries in the statement of account have not been challenged.

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On perusal of the application. documents. affIdavit and on consideration of the arguments. it is proved that the defendants have applied for loan and the bank had sanctioned the loan and to secure the loan and for repayment of loan amount with interests etc.. the defendants have executed various loan documents. as stated in the application and proved by aforesaid evidence. Defendants have neither denied the utilization of funds advanced by applicant bank nor have pointed out any specific error and discrepancy in the Statement of Account.

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16 The evidence discussed above goes to establish that the amount of loan as mentioned in the O. A.. was availed by the borrower under the agreed terms

OA 34 of 2023 IJl

DRT, PATN A

and conditions for repayment with interest. The balance amount till 31.10.2022 has been proved to be Rs.41.76.828.10 only by way of statement of account. There is nothing to prove the amount more than that disclosed in the aforementioned statement. As such this amount is recoverable till full and final realization of the claim.

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In my view. facts of the case stand proved by evidence of the applicant bank. Accordingly. the applicant bank is entitled to recover from defendants jointly and severally of Rs.41.76.828.10 along with pendente-lite and future interest {48.25% p.a. with compounded monthly rests from 31.12.2022 (The date of filing of this OA) till realization. So the final order may be passed accordingly. to meet the ends of justice.

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ORDER

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In the result, the application of the applicant bank is allowed and debt is determined with costs against the defendants. The defendants are hereby jointly and severally. ordered to pay the applicant bank its debt amounting to Rs.41.76.828.10 along with pendente-lite and future interest a+8.25% p.a. with compounded monthly rests from 31.12.2022 (The date of filing of this OA) till realization of the entire sum due and recoverable with costs.

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It is made clear that any amount deposited by the defendants. be deducted in the claim amount, if not deducted

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Defendants are debarred from transferring. alienating encumbering or otherwise dealing with or disposing of the mortgaged or hypothecated or any other properties and assets without paying the aforesaid adjudicated dues to the applicant bank to secure the ends of justice. The mortgaged or hypothecated assets to secure the loan in question are hereby attached and shall be subject to the final order under the recovery proceedings in pursuance of the Recovery certificate issued under Section 19(22) of Recovery of Debts and Bankruptcy Act 1993. The applicant may submit the certified copy of this Judgment and the Recovery Certificate before the Registrar/Sub- Registrar to endorse the charge over the secured assets.

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Let a certificate of recovery be drawn up forthwith and put up for signatures in terms of provisions contained in Section 19(22) of the Act to be

OA 34 of 2023 IJ I

DRT, PATN A

issued. on the basis of the order of the Tribunal to the Recovery Officer. The Recovery Officer shall realize the amount as per the certificate in the manner and mode prescribed under the Act from the defendants, by sale of mortgage(1/ hypothecated assets as well as other personal movable/immovable assets of the defendants.

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Parties are directed to appear before the Recovery Officer. DRT. Patna on 04.11.2024. The order be communicated accordingly.

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Judgment signed, sealed, dated and pronounced in the open court on 1 8th day of September. 2024.

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Dictated &corrected by me.

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[KaushalendraYadav] Presiding Officer Debts Recovery Tribunal, Patna

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FORM NO. 9

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DEBTS RECOVERY TRIBUNAL PATN A

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[See Regulation 24( 1 )]

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2nd Floor. ( A. B & F Wing) Karpuri Thakur Sadan. KendI'iya Karamchari Parisar (GPOA). Ashiana Digha Road, Patna-800025.

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RECOVERY CERTIFICATE UNDER SECTION 19(Z) READ WITH SECTION 19(B) OF THE REeOVERY OF DEBTS & BANKRUPTC\ AC’F, 1993, AS AMENDED FROM TIME TO TIME.

RC No. 208/2024

Case No: OA/34/2023

In the Matter of:

(CH- I) HDFC BANK BIMLA SADAN HOLDING NO 801 432 WARD NO 37 EXHIBITION ROAD PATN A .BIHAR -800020

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Applicant(s )

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(CD- 1) M/S SURA J TRADERS

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a proprietorship concern through its proprietor Ganga Prasad

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having its unit/ shop at- Sahar Telpa, ,TIrana- Karpi Shah:Ir Telpil, Ar\val

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Jehanabad .BII-TAR -8tH+ 1 9

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(CD- 2) GANGA PRASAD

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(PROPRIETOR/GUARANTOR/NIORTGAGOR) SON OF GAURI SHANKAR PRASAD, RESIDING AT:SAH AR TELPA THANA- KARPI SHAHAR TELPA , ARWAL. DISTRICT- ARWAL. PIN CODE- 8044 19 BIHAR

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Defendant(s)

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(CD- 3) S IMRAN KUMARI ( GUARANTOR) DAUGHTER OF GANGA PRASAD. RESIDING AT TOWN ViLLAGE/GRAM- SAH AR TELPA. THANA -

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KARPI SHAHAR TELPA, ARWAL, DISTRICT- ARWAL PIN CODE- 8044 19 BIHAR

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Recovery Certiflcatc for Rs 4176828.IU 1 Rupees Forty One Lakhs ScventylSix Thousands Eight Hundred Twenty Eight And Pajge Ten OnI) I

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In terms of final order dated 18/09/2024 passed by this Tribunal in the above mentioned case, it is ordered that the Applicant Certificate Holder Bank is entitled to recover a sum of Rs. 4176828.10 along with cost, expenses and interest from the 31/12/2022 i.e. date of filing / with effective date of the OA/34/2023 and future interest from order date till the date of realisation in full, jointly or severally from the Certificate Debtors, hereinafter referred to as:-

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In case of failure to pay the aforementioned adjudicated amount within 30 days, same shall be recovered from the sale of the mortgaged/hypothecated assets as well as other personal movable/ Immovable assets of the certificate debtors.

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The mortgaged or hypothecated assets to secure the loan in question are hereby attached and shall be subject to the final order under tHe recovery proceeding in pursuance of the Recovery certificate issued under Section 19(22) of Recovery of Debts and Bankruptcy Act 1993

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Parties are directed to appear before ASHISH KUMAR . Recovery Officer. DEBTS RECOVERY TRIBUNAL PATNA on 04/ 11/2024.

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The Recovery Officer shall realize the amount as per this Certificate in the manner and mode prescribed under Sections 25 to 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (as amended from time to time) from the above named Certificate Debtors

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This Certificate has been issued under my signature and seal of the Tribunal on this 19/09/2024

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(',k . IIi} ek 1:11Ela {; % ; b U n 8 1 Patna

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PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL PATNA

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FORM NO. 10

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[See Regulation 24(2)]

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DEBTS RECOVERY TRIBUNAL PATNA

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2nd Floor, (A. B & F Wing) Karpuri ThaI(ur Sadan, Kendriya Karamchari Parisar

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(GPOA). Ashiana Digha Road, Patna-800025.

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SCHEDULE TO RECOVERY CERTIFICATE MEMO OF COSTS

RC No. 208/2024

Case No: OA/34/2023

Applicant(s): HDFC BANK Versus

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Defendant(s): M/S SURAJ TRADERS

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Sr. No	tem of Costs	jj+rjI_?ujIt_inRs
	Fee on the application	m4
2	Mrm(anm	ro
3	(	Fij
4		[0
5	s	[ii
	no 1Costs:Rs

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Place: PATNA

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Date: ] 9/09/2024

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PRESID OFFICER DEBTS RECOVERY TRIBUNAL PATNA

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Note: Strike out whichever is not applicable

Hdfc Bank v. M/s Suraj Traders

Case brief

What is this about?

What did the court decide?

Hdfc Bank v. M/s Suraj Traders

Case brief

What is this about?

What did the court decide?

What the court decided

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