BANK OF BARODA vs AWADH KUMAR SHUKLA, on 28 February 2024

1DRT, ALLAHABADTA 07 of 2021 [J]**Debts Recovery Tribunal, Allahabad,**

9/2A, Panna Lal Road Allahabad

Presiding Officer : **Shri R. M. Kushawaha****TA Case no. : 07 of 2021 (OA No. 902/2014)**

**Bank of Baroda**, having its Head Office in Mandvi Baroda, State of Gujarat, amongst others places & branch Offices, a branch at Dharmganj, Post-Palia Pratap Shah, District- Faizabad, U.P.

.....Applicant -Bank

Vs.

**Awadh Kumar Shukla**, S/o Sri Shiv Baran Shukla, R/o Village Vishnupur, P.O. Deeh, District- Sultanpur, U.P.

...Defendant.

Present:

**For the Applicant** : Shri Ajal Krishna, Advocate **For the Defendants** : None **Dated: 28.02.2024****JUDGMENT**

1- The Applicant bank has made this application u/s 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, now Recovery of Debts and Bankruptcy Act, 1993 (here-in-after referred to as Act) on 15.12.2014, against the defendant to recover its debts from defendant of Rs. 11,98,269/- upto 25.11.2014 alongwith pendentelite and future interest at the contractual rate with monthly rest from 26.11.2014 with costs till realization.

Subsequently, the case record of the present Original Application No. 902 of 2014 has been transferred to this Tribunal in view of Notification of Government of India, Ministry of Finance dated 15.02.2017 thus the case has been re-numbered as TA 07 of 2021.

2- The application has been duly registered and numbered as above.

3- The brief facts of the case of the applicant bank as stated in the application are as under- The applicant bank is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act V, 1970, having its Head Office in Mandvi Baroda, State of Gujarat, amongst others places & branch Offices, a branch at Dharmganj, Post-Palia Pratap Shah, District- Faizabad, U.P.

The brief facts of the case as contained in its original application are that the Defendant being borrower approached the Applicant Bank for grant of financial assistance in the shape of Term Loan (Truck) of Rs. 16.50 Lacs for purchase of New Truck under CGTSME Scheme of Government of India and submitted loan application.

After considering the loan application and verification of the loan documents, the Applicant Bank sanctioned a Term Loan (Vehicle) of Rs. 16.50 Lacs for purchase of vehicle to the Defendant against primary security of hypothecation of Vehicle under CGTSME Scheme of

Government of India together with interest vide sanction letter dated 04.06.2010. The Term Loan was repayable in monthly equated installments.

Upon sanctioning of the aforesaid loan facility, the Defendant as borrower /guarantor executed and signed various security loan documents and guarantee agreement on 29.06.2010 in favour of Applicant Bank.

In order to secure the dues repayment of the Applicant Bank in respect of the aforesaid Term Loan Facility, the defendant hypothecated the vehicle bearing registration No. UP42 T 9039, having Chasis No. MB1KADYCAASB3710 and Engine No. SAH630914 in favour of the Applicant Bank.

The Defendant also executed and signed Letter of acknowledgement of Debt dated 13.06.2013 and acknowledged the liabilities under the facility.

The Defendant availed the aforesaid Term Loan facility, but failed to maintain financial discipline as per terms and conditions of the loan agreement due to which loan account became irregular. Despite repeated reminders and persuasion, the Defendant failed to regularize the loan account. Consequently, the said account of the Defendant was classified as NPA on 30.04.2014. Thereafter, Applicant Bank served Demand Notice dated 06.09.2014 u/s 13(2) of the SARFAESI Act followed by Legal Notice dated 12.09.2014 to the Defendant to repay the outstanding dues but the defendant failed to make the payments of outstanding dues. Accordingly, the applicant Bank has moved this T.A. to recover public money.

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.

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

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.

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

4- U/s 19 (4) of the Act & Rule 11 of the DRT [Procedure] Rules, 1993, copies of application & paper book were sent by this Tribunal to the defendant by registered/speed post on 12.12.2022, and summon/notice issued requiring the defendant to show-cause within 30 days of the service of summons/notices as to why relief prayed for, should not be granted.

On perusal of the case records, it is seen that on 12.12.2022, summon/notice was sent to the defendant, but the defendant have not appeared, hence, 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 defendant on 26.05.2023 in "Hindustan", Lucknow edition, newspaper.

Despite the registered summon/notice and publication of notice in newspaper, the defendant has not appeared before this Tribunal to contest the case. The sufficient time has been given to the defendant to defend his case, but he failed to appear and to file WS, hence, the Tribunal has passed an order to proceed exparte against the defendant on 21.02.2024.

5- To prove its case, the applicant Bank has referred attested copies of various documents before this Tribunal on 15.12.2014. The applicant bank has also given evidence on affidavit by way of affidavit of Shri Arun Kumar Shukla, Authorized Officer of the applicant bank. The details of documents are as follows. :- <table border="1"> <thead> <tr> <th>Sl.No</th> <th>Description of Documents(Attested copies)</th> <th>Date of Execution</th> <th>Amount [In lacs]</th> <th>Signature of executants</th> <th>Ex./ Ann. No.</th> </tr> </thead> <tbody> <tr> <td>1</td> <td>Copy of Power of Attorney</td> <td>07.02.2012</td> <td>-----</td>

<td>A- 1</td> </tr> <tr> <td>2</td> <td>Copy of Loan application</td> <td>31.05.2010</td> <td>Rs. 16.50</td> <td>Defendant</td> <td>A- 2</td> </tr> <tr> <td>3</td> <td>Copy of Sanction Letter</td> <td>04.06.2010</td> <td>Rs. 16.50</td> <td>Defendant and Bank</td> <td>A- 3</td> </tr> <tr> <td>4</td> <td>Copy of the Form No. 135 particulars to be supplied by the Applicant/guarantor for advance furnished by defendant</td> <td>-----<br/>-</td> <td>-----</td> <td>Defendant</td> <td>A- 4</td> </tr> <tr> <td>5</td> <td>Copy of Demand Promissory Note</td> <td>29.06.2010</td> <td>Rs. 16.50</td> <td>Defendant</td> <td>A- 5</td> </tr> <tr> <td>6</td> <td>Copy of Letter of Installments with acceleration clause</td> <td>29.06.2010</td> <td>Rs. 27966/-</td> <td>Defendant</td> <td>A- 6</td> </tr> <tr> <td>7</td> <td>Copy of instrument of Hypothecation of Vehicle</td> <td>29.06.2010</td> <td>Rs. 16.50</td> <td>Defendant</td> <td>A- 7</td> </tr> <tr> <td>8</td> <td>Copy of Letter of authority to make payment directly to the dealers (LDOC-72)</td> <td>29.06.2010</td> <td>Rs. 16.50</td> <td>Def. No. 1 &amp; 2</td> <td>A- 8</td> </tr> <tr> <td>9</td> <td>Copy of Irrevocable power of Attorney (LDOC-101)</td> <td>07.07.2010</td> <td>-----</td> <td>Defendant</td> <td>A- 9</td> </tr> <tr> <td>10</td> <td>Copy of Declaration cum undertaking cum Authority</td> <td>29.06.2010</td> <td>-----</td> <td>Defendant</td> <td>A- 10</td> </tr> <tr> <td>11</td> <td>Copy of Registration certificate of Truck</td> <td>08.03.2006</td> <td>-----</td> <td>-----</td> <td>A- 11</td> </tr> <tr> <td>12</td> <td>Copy of the Cover Note of the Insurance Policy</td> <td>24.06.2010</td> <td>-----</td> <td>-----</td> <td>A- 12</td> </tr> <tr> <td>13</td> <td>Copy of Letter of Acknowledgement of debt Security</td> <td>13.06.2013</td> <td>Rs.<br/>10,64,972.<br/>40ps.</td> <td>Defendant and bank</td> <td>A- 13</td> </tr></tbody></table>

<table border="1"> <tr> <td>15</td> <td>Copy of the Demand Notice</td> <td>06.09.2014</td> <td>Rs.<br/>30,98,496/-</td> <td>Bank</td> <td>A- 15</td> </tr> <tr> <td>16</td> <td>Copy of Statement of account in truck Loan</td> <td>18.09.2014</td> <td>Rs.<br/>11,98,269.<br/>03ps.</td> <td>Bank</td> <td></td> </tr> </table>

6- Opportunity of hearing has been fully given to both the parties, but despite several opportunities given to defendant, the defendant has not appeared to contest the case, hence, the exparte arguments of learned counsel for applicant bank were heard. Perused the case record and considered.

Ld. Counsel of applicant bank submitted that the defendant has 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 and oral evidence. Ld. Counsel for the applicant bank has further submitted that the defendant has not deposited any amount, after filing of the TA (OA).

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

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

8- On the issue of Limitation, to prove it, the applicant bank has submitted that the applicant bank has declared the account as NPA on 30.04.2014, whereas the present application has been filed on 15.12.2014. 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 from the date of declaring the account as NPA. As such, it is established that present application has been filed well within the period of limitation.

9- In the affidavit of Shri Arun Kumar Shukla, Authorized Officer of the applicant bank, has stated that he is well acquainted with the facts of the case and has on verification of record, sworn in the affidavit in support of contents of application and the documents as evidence and established on oath the pleadings and documents of the applicant bank as stated above.

The documents as stated above reveal that the defendant has 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 defendant has executed various loan documents, which strength the case of the applicant bank.

The applicant bank has also furnished statement of account as above, which is not only admissible but shall be taken as correct statement of account, more so since the entries in the statement of account has not been challenged.

10- Since, the defendant was proceeded exparte, all contentions raised and documents produced by plaintiff remained unrebuted and the tribunal may act upon the affidavit of the applicant as per law. Defendant 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, which is kept in due course of business, evidence on affidavit, which has supported the claim of the applicant bank, established to have fully correct and believable. Provisions contained in Section 4 of the Banker's Books Evidence Act, 1891 apply to certified copies of entries in banker's book furnished along with the application filed under section 19[1] of the Act. Hence, the entries in the Statement of Account are also proved.

11- On consideration of the arguments and on perusal of the application, documents and affidavit, it is proved that the applicant bank has granted the loan facility, documents were executed by the defendant and facility was availed by the defendant as stated in the application.

12- Now, whether interest has been charged as per agreement and as per R.B.I. Guidelines?

13- The applicant bank has sought for recovery of a sum of Rs. 11,98,269/- with cost and further interest at the contractual rate from 26.11.2014 till realization.

14- Learned Advocate appearing for applicant bank submits that the applicant bank has charged interest in terms of the agreements and that 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.

15- On consideration of the arguments and on perusal of the pleadings, documents and affidavit, it is proved that the applicant has charged interest against defendants in terms of documents and as per directives of R B I, However, looking to the facts and circumstances of the case and in the interest of natural justice, the defendant deserve some leniency in the rate of interest.

So far as the dispute regarding CGTSME coverage by the Central Government is concerned. Credit Guarantee fund scheme for Micro and Small Enterprises, para 10(iv) as follows:- *"In the event of default the lending institution shall exercise its rights, if any, to take over the assets of the borrowers and the amount realized, if any, from the sale of such assets or otherwise shall first be credited in full by the lending institutions to the Trust before it claims the remaining 25% of the guaranteed amount."*

16- The defendant failed to appeared before the Tribunal to contest the claim made by the applicant, therefore, it necessarily goes to establish that the claim made by the applicant bank is genuine and true. It is manifest that the defendant has not disputed the claim, therefore, the claim referred to the Tribunal is recoverable till full and final realization of the claim.

17- In Indian Bank Vs. Blue Jaggers Estates Limited and others [2010] 8 SCC 129, the Hon'ble Supreme Court of India has observed as under- "The Court cannot lose sight of the fact that the bank is a trustee of public fund. It cannot compromise the public interest for benefiting private individuals. Those who take loan and avail financial facilities from the bank are duty bound to repay the amount strictly in accordance with the terms of the contract. Any lapse in such matters has to be viewed seriously and the bank is not only entitled but duty bound to recover the amount by adopting all legally permissible methods. Parliament enacted the act because it was found that legal mechanism available till then was wholly insufficient for recovery of the outstanding dues of the banks and Financial Institutions."

18- Facts of the case, in my view, are well proved by evidence of the applicant bank. The applicant bank is entitled to receive it's debts with interest, from defendant Rs. 11,98,269/- alongwith pendentelite and future interest @ 9% simple per annum from 26.11.2014 till realization. So the final order may be passed accordingly, to meet the ends of justice.

ORDER

In the result, the application of the applicant bank is, allowed exparte and debt is determined with costs against the defendant and it is, hereby, ordered that the applicant bank is entitled to receive it's debts with interest, from defendant, amounting to Rs. 11,98,269/- alongwith pendentelite and future interest @ 9% simple per annum from 26.11.2014 till realization of the entire sum due and recoverable with costs. The prayer of penal interest, if any, is declined.

In case of failure to repay the aforementioned adjudicated amount within 30 days, same shall be recovered from the sale of the *hypothecated assets / mortgaged properties of the Defendant in execution proceedings. The amount, if any, already recovered by sale of any hypothecated assets / mortgage properties or otherwise shall be adjusted towards the debt and only the balance amount shall be recoverable. If the dues of Applicant Bank still remain unsatisfied, the same shall be recovered by attachment and sale of the personal movable and immovable assets of the Defendant. The cost of litigation be also borne by the Defendant.*

*The Defendant is hereby restrained by means of injunction from depleting, transferring, encumbering, alienating, selling or otherwise dealing with hypothecated assets/ mortgage properties or his other immovable/movable properties/estates without first paying the above claim of Applicant Bank/Certificate Holder.*

*In case, the Defendant expires, the legal representatives shall be liable to pay in proportion to the inheritance.*

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 defendant.

Pending I.As, if any, stands disposed off in the light of Judgment.

Parties are directed to appear before the Recovery Officer, DRT, Allahabad on 06.05.2024. The order be communicated accordingly.

Judgment signed, sealed, dated and pronounced in the open court on this 28^th Day of February, 2024.

Dictated & Corrected by me.

[R. M. Kushawaha] Presiding Officer Debts Recovery Tribunal, Allahabad SS

[R. M. Kushawaha] Presiding Officer Debts Recovery Tribunal, Allahabad