Allowed

Canara Bank v. Ms Ganpati Enterprises

DRT17 Sept 2024OA/494/2023

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal Patna allowed the bank's application under Section 19 of the RDB Act, 1993, determining the debt of Rs 24 lakhs despite defendants' non-appearance, relying on documentary evidence and admissible bank records.

What did the court decide?

Recovery of Rs 24.04 lakh with interest and costs via Recovery Certificate; attachment of mortgaged/hypothecated assets.

Canara Bank versus Ms Ganpati Enterprises — Banking and Recovery | DRT (2024)

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DRT. PATN A

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OA 494 of 2023 IJ I

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Debts Recovery Tribunal, Patna Presiding Officer : Shri Kaushalendra Yadav OA Case No. 494 of 2023

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Canara Bank. Samastipur. District-Samastipur.

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. . . . . . .Applicant

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Vs.

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M/s Ganpati Enterprises through partners Julee Chaudhary and Khushbu Kumari @ Khusboo Kumari, Address 12 Patthar Chowk. Near Circuit House. Ward No. 14. Samastipur. District-Samastipur-848101

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Julee Chaudhary (a Julee Choudhary, W/o Avinash Kumar Chaudhar)'. D/o Brajesh Prasad Singh Address 12 Patthar C:howl<. Near Circuit House. Ward No, 14. Samastipur District-Samastipur-848101 PAN No. ASLPC4276H

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Khusbhu Kumari (a Khusboo Kumari W/o Rishikesh Kumar Thakur 'a Rishikesh Kumar D/o Bhola Thakur, Address at Gopalpur, P.O. Gopalpur. P.S.-Kalyanpur. Samastipur. District-Samastipur-848 102 . PAN no. CJYPK2 1 1 IF

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Rishikesh Kumar Thakur (a Rishikesh Kumar S/o Akhileshwar Prasad Thakur. Address Gopalpur. P.O. Gopalpur. P.S.-Kalyanpur. Samastipur. District-Samastipur-848102. PAN no. AHRPT 4720C.

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. . . . . . . Defendants

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Present:

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For the Applicant : Shri At)hay Kumar. Advocate For the Defendants : None

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Dated: 17.09.2024

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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 4.10.2023 against the defendants to recover its debts from defendants of Rs_24.04.827.56 as on 31.8.2023 along with pendente-lite and future interest alo.70% in OCC and (?47.5C)% in GECL loan p.a. with monthly rests from 1.9.2023with costs till realization.

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The application has been fIled with the contention that the applicant bank. is a body corporate. corporate banking company under the provisions of the banking companies ( Acquisition and Transfer for undertaking) Act 1970 having its Head OffIce at 1 12. JC Road. Bangalore 560002 and Branch Office at Samastipur. District-Samastipur. A '

b.'>V’\

nRT_ PATN A

OA 494 of 2023 IJ I

Defendants approached the bank for grant of OCC facility of Rs.20 lanl on 26.7.2016. which was sanctioned by the bank on 4.8.2016. Defendants further approached the bank for grant of GECL loan of Rs. 4 lakh on 30.6.2020. which was sanctioned by the bank on 30.6.2020. Defendants executed the various loan documents and defendant no. 4 also create equitable mortgage of the property details given at page 45 & 46 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 1.5,2023

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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 Bled by the bank.

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The total liability in the loan account is Rs.24.04.827.56 with pendentelite and future interest @10.70% in OCC and @7 .50% in GECL loan p.a. with monthly rests from 1 .9.2023 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 21.10.2023. 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 9.12.2023 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 13.5.2024

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OA 491 of 2023 1.Jl

DRT, PATN A

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

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SI.N	' Description of Documents Photocopies	I Date of Execution	Amount	Signature Executa	Ex./ IAnn. No
	o		Rs.20 lakh	e 1
a	e		Rs.20 lakh	a
3	Composite hypothecation agreement	4.8.2016	Rs.20 lakh	e 1 to3
4	Guarantee agreement	4.8.2016	Rs.20 lanl	e 4
5	a				5
6	Loan application	30.6.2020	Rs.4 lakh	e l
7	Sanction letter	30.6.2020	Rs.4lakh	a
8	r deed of hypothecation		Rs.4lakh	e a
9	a account	131.8.2023	s	Ti

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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.

OA 494 of 2023 1 Jl

DRT. PATN A

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 1.5.2023. whereas the present application has been filed on 4.10.2023. 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 of limitation.

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Shri Rahul Kumar. Branch 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.

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Section 19(3) of the Recovery of Debts and Banluuptcy 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 that Act, 1891 runs as under-

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S.4. Mode of proof of entries in bankers’ books.–Subject to the provisions Qf this Act. a cerII.fied copy Qf cm)’ entry in a banker 's book shall in all legal proceedings be received as prima facie evidence of The existence of such entrY. and shall be adnriTted as evidence of the matters. transactions and accounts therein recorded in everY case

DRT, PATN A

OA 49+ of 2023 IJ I

\there, and to the satIre extent as, the original entrY itself is no\t bY Icr\r 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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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.24.04.827.56 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.24.04.827.56 along with pendente-lite and future interest @7.50% p.a. with compounded monthly rests from 4.10.2023 (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.24.04.827.56 along with pendente-lite and future interest @7.50% p.a. with

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OA 494 of 2023 1 Jl

DRT, PATN A

compounded monthly rests from 4.10.2023 ( The date of tIling 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 debarTed from transferring. alienating encumbering or otherwise dealing with or disposing of the mortgage(i 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 issued. on the basis of the order of the Tribunal to the Recovery Of11cer. 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 lnortgaged/ 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 04.1 1 .2024. The order be communicated accordingly.

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Judgment sjgned. sealed. dated and pronounced in the open court on 17th day of September. 2024.

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Dictated &corrected by me.

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L,*/=?:,~ [KaushalendraYaddv] Presiding Officer Debts RecoverY Tribunal. Patna

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FQRNI NQ. 9 [See Regulation 24( ! )]

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D FBI’S ItE(’( )' ER' TRI l}L'N '\ I. PA'l'X' A

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2nd Floor. ( A. B & F Wing) KarT)uri ’rhakur Sad:In. Kcndrl}’a Kamnrcharl Parisar (GPOA ). Ashiana Diglra Road. Patna-800025

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REC{}-ER' CERTIFICATE UNDER SECTION 191 Z) READ WITH SECTION 19(a) OF THE R!:CC>\’ERY OF DEBTS & BANKRUPTCY ACTS 1993yA£ ANI ENDED FR(}XI TIME TO TINI E.

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RC No. 194/2024

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IN Case No: OA/494/2023

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In the Matter tIt

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(CH- 1) ('ANARA BANK SAM A STI PL IR SA\IASTIPUR .BIHAR -o

Applicant( s )

––– Versus

(CD- 1) MS GANPATI ENTERPRISES

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through Its partners Julee Chauclharv and Khusbhu Kulnarl (a' Khusboo Kumarl

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Address- 1: Patthar ChIt\rk. Near CIrcuIt House, Ward nII. 14

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S3nrastlpur ,BIHAR -848 1 t) I

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(CD- 2) JULEE C'HAUDH AR\’ AND JULEE ('HOUDHAR\ ( BORROWER/PARTNER )

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\V/O- AVIN ASH KUMAR (-HAUDHARY D/0- BRAJESH PRASAD SINGH, ADDRESS- 12 PATTHAR CHO\’K, NEAR (-IR('UIT HOUSE. WARD NO.- 14. SANIASTIPUR. DISTRICTSA\IASTIPLJR. STATE- BIHAR PIN 848 IOI

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Dc tcndant( s )

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(CD- 3) K 11 USBH tJ K LT \I ARI AND K HITS BOO K LIV ARI ( BORRO\’ER/PARTN ER ) \'/O- RJSHIKESH KUNI AR THAKUR AND RISHIKESH KUMAR D/O- BHt)LA THAKUR, ADDRESS- AT GOPALPt IR p.(-).- GOPALPL JR. p.s - KALYANPUR. SAMASTIPUIt,

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DISTRICT- SAMASTI PU R, STATE - BIHAR PIN 8+810:

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(CD- 4) RISHIKESH KUMAR THAKUR AND RISHIKESH KIT bt AR (GUARANTOR N'IORTGAGUR ) S/C)- AKHILESH\'AR PRASADTHAKUR. ADDRESSGOPALPUR. P.0.- GOPALPUR, P.S.- KAI'YANPLrR SAM ASTIPt JR , DISTRICT- SAM ASTIPUR , STAl-F- BIHAR , PIN - 8481 o:

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Regq}yer) C;crtifig IItt for R$ 2404827.56 1 Rupees Twenty Fclur Lakh s Fullr ThQU sand Eight Hundrcd Twenty Seven And Paile Fifty Six Onjy_I

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In terms of fInal order dated 1 7/09/2024 passed by this Tribunal in the above mentioned case. it is ordered th,it the Applicdnt Certificate Holder Bank is entitled to recover a sum of Rs. 2404827.56 along with cost. expenses and interest from the 04/10/2023 i.e. date of filing / with ctYective date of the OA 494/2023 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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	Int. Type/Mode	Int. !Rate	Effective Date	Date	I n t ( 1{ sn)	1+? ? i I It y	Interest (asa Order Date)
'ISGANPA'1-1ENTERPRISES			L/10/2023 l	l 7/09/2024	:404827.56		Ilt crcstl Order
C'HAUDHAR\’ ANDJULEE CHOUDHARYtBORROWER'PARTNER)	crest N'lolrthl}’)	7.50	L' Io/2023 ;	I17/1)9/202.1	IH27.56	[JoIntly IAnd
HUSBHUKUNIARIANDKHUSBQQ FKUMARI ( BORROWER/PARTNER)	lrterest (Monthly)		1/ 1o/2023 f	17/09/202+
hlkal KUNI /v lb– KESHKUMAR lITGAGOlt)			}/Io/2023:	1 7/09/2024	+		+

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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 mortgagcd' hypothccated assets as well as other personal lnovirble/ llnmo\’able assets of the certificate debtors

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The nrortgaged or Irypothecilted :lssets to secure the loan in questi011 arc hereby ilttached and shilll be subject to the final order under the recovery proceeding in pursuance of the Recovery certitlcatc issued under Section 1 9(22) of Recovery oF Debts and Bankruptcy Act 1993. Panics are diltcted to appear benIn ASHISH KUNI AR . Rccovell'' Officer. DEBTS RECo\’ER' TRIBUNAL PATNA oil 04/ 1 1/2024

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The Recovery C)tllcer shall realize the amount as per this C-crtitlcate in the manner and mode prescribed under Sections 25 to 28 of the Recuvery 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 Cenitlcate has been issued under my signature and seal of the Tribrlnal on this 7/09/2024

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b far Debts iE!!!Ns::laL;f\bund 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