Allowed

Punjab National Bank v. Mr. Ashok Kumar (Borrower cum Mortgagor)

DRT18 Sept 2024OA/445/2023

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal, Patna determined the debt of the applicants against the respondents. Following the bank's evidence and the respondents' failure to appear, the court allowed the application, establishing joint and several liability for the principal, interest, and costs, and issued a recovery certificate.

What did the court decide?

Payment of Rs. 28,26,434.00 along with interest and costs; issuance of Recovery Certificate.

Punjab National Bank versus Mr. Ashok Kumar… — Contract and Commercial Disputes | DRT (2024)

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DRT. PATN A

OA 445 of 2023 IJ I

Debts Recovery Tribunal, Patna

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Karpuri Thakur Sadan, Aashiana Digha Road Patna-800025

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Presiding Officer : Shri KaushalendraYadav

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OA Case No. 445 of 2023

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Punjab National Bank. Chandauti Branch. District-Gaya

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. . . . . . .Applicant

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Vs.

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Mr. Ashok Kumar proprietor M/s Jai Mata Di Tractors and M/s Maa Traders S/o Radhe Shyam Sharma R/o lst Floor. Vishnu Market. Gorakshani Road. Narayan Nagar. Near Sudha Talkies. ManI)ur. DistrictGdya-823003 PAN no. ALQPK 1 004P.

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Mr. Sanjay Kumar S/o Radhe Shyam Sharma R/o Tejpura House. North Lakhibag Janakpur. IVlanpur. District-Gaya-823003 .

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. . . . . . . Defendants

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Present:

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For the Applicant : Shri Prashant Kumar. Advocate For the Defendants : None

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Dated: 18.09.2024

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JUDGMENT

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1 . The Applicant bank has made this application u/s 19 of the Recovery of Debts and Bankruptcy Act. 1993 (here-in-after referred to as Act) on 14.9.2023 against the defendants to recover its debts from defendants of Rs.28.26.434.04 as on 31.8.2023 along with pendente-lite and future interest at the contractual rate from 1.9.2023 with costs till realization

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The application has been filed with the contention that the applicant bank. is a body corporate. constituted under the banking companies ( Acquisition and Transfer of Undertakings) Act 1970 having its corporate office at Plot no. 4 sector 10. Dwarka. New Delhi 110075 and Branch Office at Chandauti Branch. District-Gaya.

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Defendant no. 1 approached the bank for grant of cash credit Facility of Rs.10 lakh on 23.7.2014. which was sanctioned by the bank on 23.7.2014. Defendant no. 1 further approached the bank for enhancement of aforesaid credit facility upto Rs.13 lakh on 29.10.2015. which was sanctioned by the bank. Defendant no. 1 further approached the bank for grant of term loan of

OA 445 of 2023 IJ I

DRTI PATN A

Rs. 2.05 lakh. which was sanctioned by the bank on 23.6.2020. Defendant no. 1 further approached the bank for grant of loan of Rs. 10 lakh on 2.11.2020. which was sanctioned by the bank on 11.11.2020. Defendants executed the various loan documents and also defendant no. 2 created equitable mortgage of 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 29.9.2022 and 14.11.2022.

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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.28,26.434.04 with pendentelite and future interest at the contractual rate from 1.9.2023 till the realization.

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This Tribunal issued summons/notices copies of application & papeI book to the defendants by registered/speed post on 22.9.2023. 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 8.11 .2023 in ''Prabhat Khabar" newspaper.

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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 file WS. hence. the Tribunal has passed an order to proceed ex-parte against the defendants on 1.2.2024

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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

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OA 445 of 2023 IJ I

DRT, PATN A

given evidence on affidavit by way of affidavit by Shri Abhishek. Senior

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Manager of the applicant bank. The details of documents are as follows:

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SI.No	of Description Documents Photocopies	[Date ot Execution	Amount	Signatureof Executants	Ex./ Ann No
1	Loan application	23.7.2014	Rs. 10 lakh	Defendantno. 1	1
a	Sanction letter	23.7.2014	Rs.10 lakh	Bank	9
l-)	Hypothecation agreement	23.7.2014	Rs.10 lakh	Defendantno. 1	a -1
4	Copyofsale deed				4
5	Letter	23.7.2014		Bank	5
6	Loanapplication	29.10.2015	Rs.13 lakh	Defendantno. 1	6
7	Sanction letter	29.10.2015	Rs. 13 lakh	Bank	7
8	Hypothecation agreernent	29.10.2015	Rs.13 lakh	Defendantno. 1	8
9	L agreenrent	29.10.2015	Rs.13 lakh	Defendantno. a	9
10	e		Rs.13lakh	Defendantno. 1 &2	10
11	Loanapplication	23.6.2020	Rs.2.05 lakh	Defendantno.	11
12	Sanction letter	23.6.2020	Rs.2.05lakh		12
13	Masteragreement	23.6.2020	Rs.2.05 lakh	Defendantno. 1	13
14	o termloan			Defendantni 1	14
15	Letterofm		Rs. 15.05 lakh	Defendam 1	15
16	Loan application	2.11,2020	Rs,10laM	Defendantno, 1	16
17	Sanctionletter	11.1 1.2020	Rs. 10 lakh	Bank	17
18	mc goods andbook debts		Rs. 10 lakh	Defendantno. 1	18
19	Legalnotice	14.12.2022		Bankadv.	19
20	Demand notice	1.2.2023		Bank	2()
21	Balance securIty confirmation letter a			Defendantno. 1	21
la	Statement account TI	As on 3 1.8.2023	Rs.28.26.434.04	Bank	22

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8 Heard arguments and perused the^{case record}

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OA 145 of 2023 IJ I

DRT. PATN A

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 I'urther 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 decl,wed the account as NPA on 29.9.2022 & 14.11.2022, whereas the present application has been fIled on 14.9.2023. 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 filed well within the period ol limitation

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Shri Abhishek. Senior 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 445 of 2023 1 Jl

DRT, PATNA

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 the provisions of this Act, a certifIed copy of any entry in a banker’s book shall in all legal proceedings be received as primafacie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not 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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While on perusal of the loan documents it appears that the applicant bank has initially sanctioned Rs.10 lakh and to secure the loan, the defendant no. 1 has executed various loan documents, including the guarantee documents.

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DRT, PATNA

OA 445 of 2023 IJ1

Thereafter the applicant bank has enhanced cash credit loan upto Rs.13 lakh and to secure the loan the defendant no. I & 2 have executed various loan documents including the guarantee documents. Thereafter the applicant bank has further sanction loan upto Rs.2.05 lakh and to secure the loan the defendant no. 1 has executed various loan documents including the guarantee documents. Thereafter the applicant bank has further sanction loan upto Rs.10 lakh and to secure the loan the defendant no. 1 has executed various loan documents including the guarantee documents

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In view of the above, it is clear that the defendant no. 2 has given guarantee for the loan of Rs.13 lakh only. Therefore the defendant no. 2 is liable to pay the loan of Rs.13 lakh with interest only.

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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 and conditions for repayment with interest. The balance amount till 31.8.2023 has been proved to be Rs.28,26,434.04 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.28,26,434.04 along with pendente-lite and future interest @ 7.65% p.a. with compounded monthly rests from 14.9.2023 (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.289269434.04 along with pendente-lite and future interest @ 7.65% p.a. with compounded monthly rests from 14.9.2023 (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 the defendant no. 2 is liable to pay the loan of Rs.13 lakh with interest only. /

DRT, PATNA

OA 445 of 20:iHI

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 hypotIrecated 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 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 mortgaged/ 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 18th day of September, 2024.

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CT/'M \FP / J ;iq~’\ N >~ [KaushalendraYadav] Presiding Officer Debts Recovery Tribunal, Patna

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Dictated &corrected by me.

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FORM NO. 9

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DEBTS REC-O\’ER\’ TRIBUNAL PAT\ A

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[See Regulation 24( 1 )]

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2nd Floor, ( A. B & F Wing) Karpuri Thakur S{ldiln. Kcndl'iya Karanrchari Paris;or (GPOA). Ashiana Digha Road, Patna-800025

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RECOVERY CERTIFICATE UNDER SECTION 19(Z) READ WITH SECTION 19(B) OF THE RECOVERY OF DEBTS & BANKRUPTCY ACT, 1993, AS AMENDED FROM TIME TO TIME.

RC No. 204/2024

Case No: OA/445/2023

In the Matter of: (CH- 1) PUNJAB NATIONAL BANK CHANDAUTT BRANCH Applicant(s) G AYA .BIHAR -C)

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To (CD- 1) MR. ASHOK KUMAR (BORROWER CUM MORTG AG OR ) S/u- Rat]hey Shvam Singh Proprietor of M/s Jai Mata Di Tractors and M/s Mda Traders, R/o- 1 st Floor. Vishnu Market. Gorakshani Road, Nilrayan Nilgar. Near Sudha Talkies, Manpur, Gaya .BTH AR -823003

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Defendant(s)

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(CD- 2) MR. SANJAY KUMAR (GUARANTOR- CUMMORTG AC;OR I S/0- RADFIEY SHAYNI SHARMA, RESIDENT OFTEJPURA HOUSE. NORTH LAKH IBAG. JANAKPUR.

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MANPUR. DISTRICT- GAYA {BIHAR) -823003

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Recovery Certificate for Rs 2826434.04 1 Rupees Twenty Eight Lakhs Twenty Six Thousands Four Hundred Thirty Four And Paise Four OnI)=1

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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. 2826434.04 along with cost, expenses and interest from the 14/09/2023 i.e. date of filing / with effective date of the OA/445/2023 and future interegt 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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CDName Type	Int. I Type/Mode	Effective Date I Rat	'rder Date	Amount	Liability	as0 Irder Date)	RC F Amount(Rs.)
MR. ASHOK KUMAR RRO\VERCUM MORTGAGOR)	Illterest Monthjy)	7.65 114'09/2023	ll 8/09/2024	f2826434.04	lulnt		:6434.04
MR.SANJAYKUMAR GUARANTOR- CUM NIORTGAGOR)		65 114/09/2023	118/09/2024	6826434.04	lintly	illltcrCst As	:6434.04

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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 nlortgaged/hypothecated assets as well as other personal movable/ Immovable assets of the certificate debtors.

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The lnortgaged 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 M ANOJ KUMAR . Recovery Officer. DEBTS RECOVERY TRIBUNAL PATNA on 04/ 1 1/2024.

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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 Certiilcate 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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a IT Registrar D+bts Recbvery Tribunal Patna

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PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL PATNA

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FORM NO. 10 [See Regulation 24(2)]

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DEBTS RECOVERY TRIBUNAL PATNA

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

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SCHEDULE TO RECOVERY CERTIFICATE MEMO OF COSTS

RC No. 204/2024

Case No: OA/445/2023

Applicant(s): PUNJAB NATIONAL BANK Versus

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Defendant(s): MR. ASHOK KUMAR (BORROWER CUM MORTGAGOIt)

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Item ofCosts	!Amount inRs
Fee onthe application	m3
r	rtl
AdvocateFees	ro
[Commissioner/Receiver/Valuation/SecurityFee	[0
MiscellaneousCharges	!L)
Total Costs:Rs	mo

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Place: PATNA

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Date: 19/09/2024

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PRESIDrMOFFICER DEBTS RECOVERY TRIBUNAL PATNA

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Note: Strike out whichever is not applicable

Punjab National Bank v. Mr. Ashok Kumar (Borrower cum Mortgagor)

Case brief

What is this about?

What did the court decide?

Punjab National Bank v. Mr. Ashok Kumar (Borrower cum Mortgagor)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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