PUNJAB AND SIND BANK vs M/S TRINITY AND ANR on 27 September 2018

FINAL ORDER

This original application has been filed by the applicant bank, on 14.07.1998, through Mr. MP Singh & Mr. SP Singh, Senior Manager & Manager, respectively, under Section 19 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 against the defendants for recovery of a sum of Rs.13,79,204.10 (Rupees Thirteen Lakhs Seventy-Nine Thousand Two Hundred Four and Paisa Ten Only) along with costs, pendentelite and future interest @20.5%

with monthly rests from the date of filling of this O.A. till the realization of this O.A.

2. The brief facts of the case are that the defendant no.1 through defendant no. 2 & 3 are the principal borrowers, while defendant no.4 to 7 stood as guarantors engaged in the business of aluminum, aluminum products, PVC Resin and plastics. At the request of the defendants the applicant bank sanctioned the Cash Credit Facility of Rs.10.00 lacs and LC Limit of Rs. 25.00 lacs on 28.09.1993. In order to avail the aforesaid loan facility, the defendants executed and delivered the certain loaning and security documents, such as demand promissory note, form no. 106, form no. 291, form no.126 etc.

3. The aforesaid loan facilities were granted against the mortgage of the property in favour of the applicant bank namely: land measuring 1 Bigha, situated on Khasra No. 52/15, in the village of Barwala, Delhi along with hypothecation of all stocks of aluminum, aluminum products, PVC Resin and plastics.

4. It has further been submitted by the applicant bank that after availment of the aforesaid loan facility the defendants did not maintain the financial discipline and inspite of various demands of the applicant bank the defendants failed to regularize the account and in view of the same the account became irregular. Thereafter, the applicant bank issued a legal demand notice dated 19.03.1998 and 02.07.1998, but the defendants failed to regularize the account leaving no option to the applicant bank except to file the present original application against the defendants.

6. Notice of this O.A. was issued to the defendant no.4, he put appearance through counsels and filed his written statement. Further, notices were also issued to defendant no. 1,2,3, 6 & 7, they put appearance through counsels and filed their joint written statement. Furthermore, notice was also issued to defendant no.5, despite notice they failed to appear before this Tribunal and was accordingly proceeded as exparte on 02.05.2000.

7. In the written statements the defendant no.4 has raised various objections such as the present O.A. has not been filed by the authorized officer, that the applicant bank has obtained the forged signatures of the defendant no.4, the defendant no. 4 did not stand as a guarantor to the said loan facility availed by the rest of the defendants, it is also denied that the said property was in the name of the answering defendant in 1993 as the answering defendant has already sold the said property to Rajeev Nagpal(defendant no.6) for a sum of Rs.25,000/- vide agreement to sell dated 09.04.1992 and had no concern with the said property and that the present O.A is barred by limitation.

8. In their joint written statement, the defendant no. 1 to 3, 6 & 7 have raised various objections such as that the present O.A is not duly filed by an authorized person, that the applicant bank did not disburse the LC Limit of Rs.25.00 lacs in the accounts of the answering defendants, that the defendant no.6 & 7 never stood as guarantor to the loan facility availed by rest of the defendants, that the statement of account is not as per the RBI Guidelines and that the present O. A is barred by limitation.

9. To prove its case, the applicant bank leads its evidence by filling the affidavit of AW- 1 Mr. MP Singh and Mr. SP Singh, Senior Manager and Manager, respectively, of the applicant bank who has exhibited the documents which includes Power of Attorney which is exhibited as EX AW-1/1 & 2, copy of legal notice through advocates along with postal receipt as EX AW-1/3 to 5, copy of statement of account and other charges as EX AW-1/6.

9. To prove its case, the applicant bank leads its evidence by filling the affidavit of AW- 2, Mr. Amarjeet Singh Chawla, who has exhibited the documents which includes copy of demand promissory note dated 28.09.1993 executed by defendant no. 2 & 3 as Ex. AW 2/1, form no. 106 dated 28.09.1993 executed by defendant no. 2 & 3 as Ex. AW 2/2, form no. 291 dated 28.09.1993 executed by defendant no. 2 & 3 as Ex. AW 2/3, form no. 126 dated 28.09.1993 executed by defendant no. 2 & 3 as Ex. AW 2/4, form no. 122 dated 28.09.1993 executed by defendant no. 2 & 3 as Ex. AW 2/5, letter of continuity executed by defendant no. 2 & 3 as Ex. AW 2/6, hypothecation of goods dated 28.09.1993 executed by defendant no. 2 & 3 as Ex. AW 2/7, deed of guarantee dated 28.09.1993 executed by defendant no. 2 & 3 as Ex. AW 2/8 & 9, copy of deposition of title deeds dated 28.09.1993 executed by defendant no. 2 & 3 as Ex. AW 2/10, form no 84AA dated 28.09.1993 executed by defendant no. 2 & 3

as Ex. AW 2/11 and the Khautauni of property as Ex. AW 2/12.

10. To prove its case, the applicant bank leads its evidence by filling the affidavit of AW- 3, Mr. Devinder Singh Anand, Computer Terminal Operator, who has exhibited the documents which includes demand promissory note dated 19.01.1996 by defendant no. 2 & 3 as Ex. AW 3/1, form no. 106 dated 19.01.1996 by defendant no. 2 & 3 as Ex. AW 3/2, form no. 291 dated 19.01.1996 by defendant no. 2 & 3 as Ex. AW 3/3, form no. 126 dated 19.01.1996 by defendant no. 2 & 3 as Ex. AW 3/4, form no. 122 dated 19.01.1996 by defendant no. 2 & 3 as Ex. AW 3/5, letter of continuity dated 19.01.1996 by defendant no. 2 & 3 as Ex. AW 3/6, hypothecation of goods to secure the demand cash credit dated 19.01.1996 by defendant no. 2 & 3 as Ex. AW 3/7 and deed of continuing guarantee dated 19.01.1996 by defendant no. 2 & 3 as Ex. AW 3/8.

10. To prove its case, the defendant no.4 leads its evidence by filling the affidavit of RW- 4, Mr. Sunil Girotra, who has exhibited the documents which includes report in original as Ex. RW 4/1, copy of sale deed as Ex. RW 4/2, copy of agreement to sell as Ex. RW 4/3, original letter dated 08.09.1997 as Ex. RW 4/4 and original copy of complaint as Ex. RW 4/5.

10. The defendants have raised the objection that the present O.A. is not filed by the authorized officer, but on perusal of the it is observed that the present O.A. has been filed by Mr. MP Singh and SP Singh, Senior Manager and Manager, of the bank, whose power of attorney executed by the applicant bank in his favour is Ex. AW-1/1 & 2. Therefore, the plea is not maintainable and the same is rejected.

11. The defendant has also raised the objection that the present O.A is barred by limitation. However, on perusal of records, it is observed that the loan was sanctioned on 28.09.1993 and the legal notice was sent on 19.03.1998 and the present O.A has been filed on 14.07.1998. The property in question was stated to be mortgaged and the relevant documents regarding equitable mortgaging of property in question has been duly proved on record by the applicant bank. Therefore, where the property in question is mortgaged, the period of limitation would be 12 years for initiating the present O.A. Therefore, the present O.A has been filed within the prescribed period of limitation. Moreover, the evidence of the applicant bank remains unrebutted also.

11. The defendant no. 1 to 3, 6 & 7 have also raised the objection that defendant no. 6 & 7 did not stand as guarantors to the loan facility availed by the rest of the defendants. However, on perusal of records, it is observed that the defendant no. 6 & 7 have duly signed and executed the

11. The witness of the applicant bank has fully corroborated the averments made in this O.A. The evidence lead by the applicant bank which consists of mainly written / typed documents has gone unchallenged and there is no question of disbelieving the same based upon the documents. This Tribunal has also observed that not an iota document/evidence has been led by the defendants against the claim of the applicant bank and has made only submission on fact as stated in the written statement evidence. That in the civil proceedings it cardinal principle, that whosoever alleges a fact he/she has to prove in the court of law by leading evidence mere assertion are not sufficient and nowhere defendants have denied about the availment of the loan.

13. In view of the above facts and circumstances, this Tribunal is of the view that the defendants have failed to convince this Tribunal and this Tribunal do not find any merit and reject the contentions of the defendants as baseless. I hereby allow this O.A. as the applicant bank has proved its claim beyond reasonable doubt.

ORDER

(i) . I allow this OA and direct the defendants no. 1 to 7 to pay to the applicant bank jointly or severally, within a period of 30 days, a sum of Rs.13,79,204.10 (Rupees Thirteen Lakhs Seventy-Nine Thousand Two Hundred Four and Paisa Ten Only) together with costs and future interest @ 12% per annum from the date of filing of this O.A. till the date of realization; failing which the aforesaid amount shall be recovered from the sale of the land measuring 1 Bigha, situated on Khasra No. 52/15, in the village of Barwala, Delhi along with hypothecation of all stocks of aluminum, aluminum products, PVC Resin and plastics. In case of shortfall the same shall be recovered from the sale of movable and immovable properties of the defendants no. 1 to 7.

(ii) . The recovery certificate be issued forthwith and be sent to the Recovery Officer, Debts Recovery Tribunal-III, Delhi.

(iii) . Parties are directed to appear before the Recovery Officer, DRT-III, Delhi on 30.10.2018.

(iv) . Copies of final order be sent to all concerned free of cost.

File be consigned to records.

(DHARMINDER SINGH) PRESIDING OFFICER DRT-III, DELHI (Pronounced in open court) Dated: 10.10.2018. PD