BANK OF BARODA vs JAGDISH KUMAR SHARMA, on 3 April 2024

1DRT, ALLAHABADTA 213 of 2018 [J]**Debts Recovery Tribunal, Allahabad,**

9/2A, Panna Lal Road Allahabad

Presiding Officer : **Shri R. M. Kushawaha****TA Case no. : 213 of 2018 (OA 54/2016)**

**Bank of Baroda**, having its Head Office at Mandvi Baroda, State of Gujrat and Branch Office amongst the other places one of its branch known as Agra University Branch, Om Complex 1, Old Vijay Nagar Colony, Agra, U.P. which has under the Administrative Control of a Regional Office at Sanjai Place Agra, through its Constituted Attorney.

.....Applicant -Bank

Vs.

**Jagdish Kumar Sharma**, son of Sri Chet Ram Sharma, Resident of 45/53, Nagla Ajeeta Jagdishpura Agra, U.P. 2820014, also available at House No. 18, Om Shree Green Homes Nagla Kali, Agra – 282001, U.P.

...Defendant.

Present:

**For the Applicant** : Shri Arnab Banerjee, Advocate **For the Defendant** : None **Dated: 03.04.2024****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 26.12.2015, against the defendant to recover its debts from defendant of Rs. 12,76,737/- upto 01.11.2015 alongwith pendentelite and future interest at the contractual rate i.e. 3.25% over base rate minimum @ 14% per annum with monthly rests, with costs till realization.

Subsequently, the case record of the present Original Application No. 24 of 2016 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 213 of 2018.

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 Nationalized Bank and constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, having its Head Office at Mandvi Baroda, State of Gujrat and Several Branches all over India including one branch at Agra University Branch, Om Complex 1, Old Vijay Nagar Colony, Agra, 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 (Vehicle) of Rs. 17.50 Lacs 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. 17.50 Lacs for purchase of vehicle under CGTSME Scheme of Government of India together with interest vide sanction letter dated 31.12.2011. 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 31.12.2011 in favour of Applicant Bank.

In order to secure the dues repayment of the Applicant Bank in respect of the Term Loan Facility, the defendants hypothecated the vehicle namely TATA Bus bearing registration No. UP83-T- 4665, Chasis No. MAT4122966BOP24054 and Engine No. 11M84033290 in favour of the Applicant Bank.

The Defendants 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 22.01.2015. Thereafter, Applicant Bank served Demand Notice dated 15.04.2015 u/s 13(2) of the SARFAESI Act 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 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 20.10.2022, and summons/notices 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 20.10.2022, 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 07.10.2023 in "Hindustan", newspaper.

Despite the registered summons/notices 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 02.04.2024.

5- To prove its case, the applicant Bank has referred attested copies of various documents before this Tribunal on 26.12.2015. The applicant bank has also given evidence on affidavit by way of affidavit of Shri Charanjeet Gaba, Chief Manager 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>05.08.2014</td> <td>-----</td> <td>Bank</td> <td>A- 1</td> </tr> <tr> <td>2</td> <td>Copy of Loan Application</td> <td>30.12.2011</td> <td>Rs. 17.40</td> <td>Defendant</td> <td>A- 2</td> </tr> <tr> <td>3</td> <td>Copy of D.P. Note</td> <td>31.12.2011</td> <td>Rs. 17.50</td> <td>Defendant</td> <td>A- 3</td> </tr> <tr> <td>4</td> <td>Copy of Letter of Installment</td> <td>31.12.2011</td> <td>Rs. 17.50</td> <td>Defendant</td> <td>A- 4</td> </tr> <tr> <td>5</td> <td>Copy of composite Hypothecation Agreement</td> <td>31.12.2011</td> <td>Rs. 17.50</td> <td>Defendant</td> <td>A- 5</td> </tr> <tr> <td>6</td> <td>Copy of Letter of Authority</td> <td>31.12.2011</td> <td>Rs. 17.50</td> <td>Defendant</td> <td>A- 6</td> </tr> <tr> <td>7</td> <td>Copy of Composite undertaking cum Declaration</td> <td>31.12.2011</td> <td>Rs. 17.50</td> <td>Defendant</td> <td>A- 7</td> </tr> <tr> <td>8</td> <td>Copy of Irrevocable power of attorney</td> <td>31.12.2011</td> <td>-----</td> <td>Defendant</td> <td>A- 8</td> </tr> <tr> <td>9</td> <td>Copy of Letter of Undertaking</td> <td>31.12.2011</td> <td>Rs. 17.50</td> <td>Defendant</td> <td>A- 9</td> </tr> <tr> <td>10</td> <td>Copy of Registration Certificate</td> <td>-----<br/>-</td> <td>-----</td> <td>-----</td> <td>A- 10</td> </tr> <tr> <td>11</td> <td>Copy of Letter of Acknowledgement of Debts</td> <td>30.01.2014</td> <td>Rs.<br/>11,86,430/-</td> <td>Bank and Defendant</td> <td>A- 11</td> </tr> <tr> <td>12</td> <td>Copy of Demand Notice</td> <td>15.04.2015</td> <td>Rs.<br/>29,24,419.2<br/>5ps.</td> <td>Bank</td> <td>A- 12</td> </tr> <tr> <td>13</td> <td>Copy of Notice demanding possession</td> <td>26.06.2015</td> <td>-----</td> <td>Bank</td> <td>A- 13</td> </tr> <tr> <td>14</td> <td>Copy of computerized statement of Term loan account of the defendant duly certified under the Banker's Book Evidence Act and calculation of unapplied interest</td> <td>-----<br/>-</td> <td>-----</td> <td>Bank</td> <td>A- 14</td> </tr> </tbody> </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.

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 and requested to issue recovery certificate, as claimed for, in TA.

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. 10 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 22.01.2015, whereas the present application has been filed on 26.12.2015. 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 Charanjeet Gaba, Chief Manager 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. 12,76,737/- with cost and further interest @ 14% per annum with monthly rests, 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 defendant 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 Jagers 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. 12,76,737/- alongwith pendentelite and future interest @ 9% simple per annum from the date of filing of OA i.e. 25.12.2016 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 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. 12,76,737/- alongwith pendentelite and future interest @ 9% simple per annum from the date of filing of OA i.e. 25.12.2016 till realization of the entire sum due and recoverable with costs.

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 17.06.2024. The order be communicated accordingly.

Judgment signed, sealed, dated and pronounced in the open court on this 03^rd Day of April, 2024.

Dictated & Corrected by me

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

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