UNION BANK OF INDIA vs M S AUTO CENTER on 1 October 2024

**ORDER**

1. This M.A. has been filed by the M. Applicant Bank with request to modify the judgment dated 02.05.2014 and also to modify the Recovery Certificate issued in pursuance of the judgment dated 02.05.2014 passed in T. A. No. 901 of 2000.

2. Reply of the M. A. has already been filed by the respondents/defendants, controverting the submissions advanced on behalf of the M. Applicant Bank. The parties have also filed written submissions and have prayed that the matter may be decided on the basis of the oral submissions advanced in the matter as well as the written submissions filed on behalf of the parties.

3. The submissions made on behalf of the M. Applicant Bank in the present matter are that the Defendant No. 1 was a partnership firm and carried on the business of sale of scooters, motorcycles etc. and was authorized dealers and also dealt with spare parts manufactured by Bajaj Auto Ltd. The defendants initially applied for Loan from the Applicants and were initially sanctioned a Loan of Rs. 25 Lacs in the shape of Revolving Letter of Credit and another Cash Credit (hypothecation) limit of Rs. 10 Lacs on 20.11.1986 which was later on renewed/enhanced from time to time. The Defendants also mortgaged their movable and immovable securities with the Applicant Bank against the Loan procured as claimed by the Bank which also included mortgaged property situated at 44/1, Civil Lines Jhansi (new number of property being 239/1 Civil Lines Jhansi) area 7192 Sq ft.

4. It is further submitted that the Defendants failed to maintain financial discipline in the Loan accounts and the Total outstanding as on 01.08.1994 was in total Rs. 95,37,941.03/-. Further, it is pertinent to mention here that the Defendants acknowledged their liability vide letter dated 19.06.1993 and also undertook to pay the entire dues by 31.07.1993. It is further submitted that vide their Application the Applicant Bank claimed Rs. 9537941.03/- inclusive of interest upto 12.04.1995 and also claimed pendentelite and future interest @21.50% per annum with quarterly rests. CC Hypothecation Rs. 2238346.03/- + CC Book Debts Rs. 1598590/- + Revolving LC Loan Account Rs. 5701005/- totalling Rs. 9537941.03/-.

5. It is further submitted that in the year 1993, a huge difference in the balance amount outstanding in the books of the Bank with that of the Balance amount in the account book of defendant no. 1 was detected which after further probing it was found that there were unauthorized debit entries in the Bank statement to the tune of Rs. 3928139.21/-. Later on two of the Bank officials were held suspect towards carrying out the fraud in the CC Loan account and later after trial one of the official Mr. MC Arya who was the accountant was found guilty by the trial court and was sentenced to rigorous imprisonment and the same judgment of the Trail Court was upheld with the Supreme Court.

6. That the total credit facilities enjoyed by the Defendants as of 26.09.1992 were Rs. 90 Lacs under the various heads. The Original security documents were filed before the Civil Court of Jhansi and are part of Court Record and were filed vide list of Documents No. 134-c and numbered as 134-B to 146-B. From June 1987 till 12.06.1993, account was running regular to the satisfaction of the Defendants and there was not even any complaint by the Defendants regarding any irregularity in the account. On 19.06.1993 the Defendant Firm through partner Udit Kohli wrote a letter to the Bank admitting the liability towards the Bank and promised to liquidate the Bank but when the Defendant failed to liquidate the dues the Applicant Bank issued legal notice dated 21.09.1993 recalling the Loan which was at that time amounting to Rs. 9652119.03/-. On 28.09.1993 (After the issuance of Legal notice dated 21.09.2023) requiring the Bank to furnish the entries from 1.1.1988 to 26.07.1990 amounting to Rs. 3928139.21/-

7. It is further submitted that after receiving the details of the entries from the Bank the Defendants filed a Writ Petition 38753/1993 and as per the direction of the Hon'ble Court in the Writ Petition the Bank's Vigilance Cell conducted a thorough enquiry and submitted its report which is part of the record of the Court. It is pertinent to mention here that the Defendants Auto Centre thereafter filed Writ Petition No. 45221/1993 -Auto Centre Vs. UBI and others, Plaintiff Bank appeared in the said WP and filed its Counter Affidavit annexing the report of the Vigilance Cell along with the Counter Affidavit. The said WP was Dismissed in Default of the Petitioner. Defendants disputed entries as unauthorized entries amounting to Rs. 3928139.21/- was debited without authority /instructions and in turn claimed interest on the said amount

@24% Rs. 47,03,644.94/- . It is vital to point out that upon scrutiny of the unauthorized debit entries bear the confirmation of the party either by signing on the reverse of the debit vouchers or by issuing slips requesting for issue of Pay orders or DD or by retiring inward documentary bills drawn by sundry parties on M/s Auto Centre or by way of acknowledgement of pay orders by the Party/Party's representative. It raises suspicion that the alleged sum of Rs. 3928139.21/- if debited without authority, the account would collapse immediately and it cannot by imagination be believed that the party from whose account a sum of Rs. 39,28,139.21 has been debited without authority will not know of it and non-raising of any objection till the year 1993 in respect of these entries from January 1988 to July 1990 itself proves that the Defendants raised such a plea to avoid the payment of the Bank dues and all such disputed entries pertain to issue of pay orders or Demand drafts which have been utilized by the Defendant Firm for its own purpose.

8. In the written submissions filed on behalf of the M. Applicant-Bank it has further been submitted that the original vouchers were filed by the Applicant Bank before Civil Court and on perusal of the same will reveal that no amount has been siphoned or debited without instructions and it is not the case that the Defendants that they did not have any business relationship with the parties in whose names the pay orders/DD were made. The most importantly the Defendants did not make any counter claim (Paragraph 50 of the WS of Defendant no. 1 and 2).

9. It is further submitted that the Applicant Bank had filed OS 122/1995 UBI Vs. M/s Auto Centre and others before the Civil Judge, Jhansi, for Recovery of Rs. 95,37,941.03/- and upon the establishment of DRT Jabalpur and vesting of Jurisdiction upon DRT Allahabad the said case was transferred from Civil Court Jhansi to DRT Jabalpur and from thereon since the Jurisdiction vested upon DRT Allahabad it was transferred from DRT Jabalpur to DRT Allahabad and was numbered as TA 901/2000. The said TA 901/2000 was decided by DRT Allahabad vide Judgment dated 02.05.2014 passed in TA 901/2000 and it was held that the Bank was entitled to recover an amount of Rs. 56,09,801.82/- and the Applicant Bank is also entitled to pendent lite and future interest @ 21.50 per annum with quarterly rests from the date of filing of the suit till full recovery is made from the Defendants. Also Judgment was given to issue the Recovery Certificate to the tune of Rs. 5609801.82/-. The Borrowers/Defendants feeling aggrieved by the order dated 02.05.2014 passed in TA 901/2000, filed an Appeal before Hon'ble DRAT Allahabad vide ref/diary No. R-85/2014 – Vikas Kohli Vs. UBI. The Order 02.05.2014 passed in TA 901/2000 - by this Tribunal is as follows pertaining to the claimed amount:- *"The Bank is entitled to recover an amount of Rs. 56,09,801.82/- and the Applicant Bank is also entitled to pendentelite and future interest @ 21.50% per annum and quarterly rests from the date of filing of suit till full recovery is made from the defendant no. 1,2/1 to 2/4,3/4 and 5 jointly and*

severally. The defendants nos. 1, 2/1 to 2/4, 3/4 and 5 are directed to pay the dues of the Bank with pendente lite and future interest within period of two months from the date of judgment failing which the Applicant Bank will be entitled to sell the mortgaged property as well as other personal movable and immovable properties of the defendant nos. 1, 2/1 to 2/4, 3/4 and 5. However the liability of the defendant no. 2/1 to 2/4 will be limited to the extent of the property inherited from the deceased defendant.

1. 1. Let the Recovery certificate be issued immediately u/s 19(22) of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 together with the details of the properties (as detailed in the Original Application by fixing 04.07.2014 before RO DRT Allahabad.

The Hon'ble DRT Allahabad also passed Judgments taking into consideration various other important aspects of the case:

1. a. ....The defendants in this case have admitted their Loan transactions.....fact remains that even if the employee has committed some fraud in the account that does not vitiate the guarantee agreement and liability of the guarantor in any manner as such, the guarantors are jointly and severally liable with the borrowers. They cannot escape from their liability in any manner.

(Last Para Page 51 of the MA 3/2021)

1. b. Defendants in their Written Statement claim Rs. 1,95,60,885.04/- along with interest from the bank but the defendants are NOT entitled to any such relief because the defendants (i) failed to file effective and proper counter claim. Secondly defendants failed to pay requisite court fee on the same and thirdly defendants have failed to prove on record their alleged claim and lastly defendants have failed to claim such a relief even at the time of final arguments. Thus the alleged demand as raised by the defendants in their written statement is not tenable.

(Last Para Page 50 of the MA 3/2021)

1. c. I feel it judicious that the defendants are only entitled to the benefit of unauthorized entries ONLY and are not entitled to benefit of reversal of interest if levied any on such entries. .... Thus by deducting the amount covered covered in the said illegal and unauthorized entries on the date of the filing of TA the defendants are liable to pay 56,09,801.82/-.

(Last Para Page 49 of the MA 3/2021)

1. d. It is strange that the party which was working on CC limit of Rs. 10 Lacs did not raise any objection in respect of these alleged disputed unauthorized entries from 1987 till 1993.....Not raising of any objections till year 1993 in respect of these entries which are from Jan 1988 to July 1990 itself proves that the Defendants have raised such a plea to avoid the payment of the Bank dues...

(Last Para Page 26 of the MA 3/2021)

10. It is further submitted that the Defendants feeling aggrieved by the order dated 02.05.2014 passed in TA 901/2000, filed an Appeal before Hon'ble DRAT Allahabad vide ref/diary No. R-85/2014 – Vikas Kohli Vs. UBI and the Hon'ble DRAT Allahabad Partly allowed the Appeal vide Order dated 24.07.2019 in Appeal No. R-85/2014 and confirmed vide its judgment that the Borrowers are not responsible to pay the unauthorized debit entries amounting to Rs. 39,28,139.21/- and any interest thereon. The appellants are entitled for reversal of interest entries applied on such debit entries from the date of debit in account. HOWEVER the Bank is ENTITLED FOR REMAINING CLAIM, if any, after exclusion of Rs. 39,28,139.21/- plus interest applied on it. The Bank would furnish the details of the outstanding after making fresh calculation in view of the above observations and the Tribunal below would MODIFY the order/Recovery Certificate accordingly. In view of the aforesaid, the appeal is partly allowed to the extent that the Bank is not entitled for the claim of Rs. 39,28,139.21/- and interest thereon. HOWEVER the defendants of OA are jointly and severally liable for remaining claim of the Bank, if any, with contractual rate of interest till realization of amount, after exclusion of unauthorized entries.

11. That feeling aggrieved with the order dated 24.07.2019 passed in the Appeal No. R-85/2014 by the Hon'ble DRAT Allahabad, the defendants filed the Writ Petition 33316/2019 – Vikas Kohli and others Vs. Union of India and Others, for Mandamus commanding Respondent Bank to recredit the amount of Rs. 39,28,139.21 along with interest which comes to Rs. 85,26,96,590/- as on 31.07.2019 till its actual repayment and further commanding the Respondent Bank to comply with Judgment dated 24.07.2019 passed in Appeal No. 85/2014 ( Vikas Kohli and others Vs. UBI and another) and pay the amount along with interest as clearly observed therein. It is submitted that the WP 33316/2019 – Vikas Kohli and others Vs. Union of India and Others was dismissed on 18.10.2019 with the liberty given to the Petitioners to approach the DRAT Allahabad for execution of the order.

12. It is further submitted that the Defendants approached the Hon'ble DRAT Allahabad and filed MA 208/2019 in Regular Appeal No. 85/2014 – Vikas Kohli and others Vs. UBI with the prayer to implement the order dated 24.07.2019 passed by Hon'ble DRAT Allahabad in Appeal No. R-85/2014. The MA 208/2019 in Regular Appeal No. 85/2014 – Vikas Kohli and others Vs. UBI was allowed on 14.09.2023 with the direction to the Bank to comply with the judgment dated 24.07.2019 passed by the Hon'ble DRAT Allahabad in ref/diary No. R-85/2014 – Vikas Kohli Vs. UBI. The Hon'ble DRAT also observed that no party can be permitted to raise anything else in the case except the compliance of the said order. Which clearly indicates that except for modification in the Recovery Certificate by the Hon'ble DRT Allahabad no other aspect in the case can be addressed and that the Bank was directed to furnish the details of the outstanding after making fresh calculations and the Tribunal below was to modify the order and Recovery Certificate accordingly. The order dated 24.07.2019 passed by the DRAT Allahabad attained finality.

13. It is submitted that the Respondent Bank filed an MA 03/2021 – Union Bank of India Vs. M/s Auto Centre and others on 18.01.2021 and requested for modification of the Judgment dated 2.5.2014 /Recovery Certificate issued in pursuance of the Judgment dated 02.05.2014 passed in TA 901/2000, Union Bank of India Vs. M/s Auto Centre & Others. It is submitted that the Bank is entitled to recover its claim after excluding Rs. 39,38,139.21/- plus interest applied on it and this amount of fraudulent entries was part of the Cash Credit account only. The amount of Rs. 56,09,801.81/- so decreed was the remaining amount after deducting the amount of Rs. 39,38,139.21/- from the amount claimed in the Plaint, further as per the available records, the recalculations were done by the Bank and it was found that an amount of Rs. 3,74,357.69/- towards principal and interest in respect of the excluded entries was included in the amount of Rs. 56,09,801.82/-. The Bank furnished the certified copy of the Calculations of the account of the Defendants from 01.01.1988 till 12.04.1995 and removed the interest entries amounting to Rs. 3,74,537.69/- from the earlier decreed amount of Rs. 56,09,801.82/- and the amount due as on date of filing of the suit before the Civil Court at Jhansi comes to Rs. 52,35,444.13/-. It is most humbly requested to the Hon'ble DRT Allahabad to modify and pass decree amounting to Rs. 52,35,444.13/- + Interest in favour the Bank.

14. On the contrary, the in their written submissions, it is submitted on behalf of the respondents that the present MA No. 03 of 2021 has been filed under Section 27 4) of RD & B Act, 1993 for recovery of Rs. 117,14,41,007.55/- despite, the fact that the bank has lost it's Suit No. 122 of 1995 for Rs. 95,37, 941.03/-in toto. It is submitted that the original Suit No. 122 of 1995 was filed for recovery of Rs. 95,37,941.03/ which included interest up to 12.04.1995 with quarterly rest at the rate of 21.5% per annum. The Original Suit No. 122 of 1995 was transferred before the Tribunal and was numbered as TA No. 901 of 2000. The opposite party herein contested the suit and transferred the application thereafter on the ground that all 78 bouchers filed by the bank were forged and their forgery has been upheld up to the Hon'ble Supreme Court of India. It was clearly submitted that the bank officials cheated an amount of Rs. 39,28,139.21/ and for that matter they were sent to Jail and their services were also terminated. The Tribunal although held that the bank officials have cheated the amount and termed the same as unauthorized entries to the tune of Rs. 39,28,139.21. However, held that the defendants are not entitled to benefits of reversal of interest if levied on any of such entries that the Tribunal decreed the suit for Rs. 56,09,801.82/ along with interest at the rate of 21.5% per annum with quarterly rest.

15. It is further submitted that the said order was challenged before the Hon'ble Appellate Tribunal however when the pre-deposit was not waived, the applicant filed CMWP No. 48656 of 2015 wherein after contest, the order of refusal of waiver was set aside and the direction was issued to decide the Appeal on merit, the Hon'ble Court considered the fact that the Debt Recovery Tribunal found the bank to be guilty an offence of embezzlement of amount accordingly the said relief was granted vide order dated 02.12.2016 which is an enclosed as Enclosure No. A. Thereafter, the Appeal No. R-85 of 2014 was heard or ultimately decided by the Hon'ble DRAT vide order dated 24.07.2019 which is an enclosed as Enclosure No. B. It is further submitted that the Hon'ble Appellate Tribunal on one hand allowed the Appeal partly and on the other hand held the opposite party identical for unauthorized debit entries of Rs. 39,28,139.21/ and interest thereon from the date of debit. It is further submitted that as per the legal advice so extended CMWP No. 33316 of 2019 was filed for compliance of recovery however the said petition was dismissed with liberty to approach the Hon'ble Appellate Tribunal vide order dated 18.10.2019 which is an enclosed as Enclosure No.C.

16. In compliance of the order dated 18.10.2019 and the judgment of the Hon'ble Appellate Tribunal dated 24.07.2019, MA No. 208 of 2019 was preferred before the Hon'ble Appellate Tribunal which has been allowed vide judgment and order dated 14.09.2023 which is an enclosed as Enclosure No. D. The Hon'ble Appellate Tribunal has directed that the contention of the bank that the applicants are not entitled for reversal of the entries as well as interest thereon is incorrect and has directed the Hon'ble Tribunal to comply with the judgment and order dated 24.07.2019. For compliance of the order dated 14.09.2023, a separate application has been filed however as far as present MA No. 03 of 2021 is concerned, it is submitted that the same is liable to be rejected with cost in as much as till date the bank could not furnish the actual due amount, if any, from M/s Auto Centre and others in as much as the judgment of the Hon'ble Tribunal has already been set aside and on one hand the bank has lost its case for Rs. 95,37,941.03/ and on the other hand Rs. 117 14,41,007 55/ have been prayed for which has now been reduced Rs. 52,35,444 13/- to Rs. 56,09,801.22/- and thereafter. It is submitted that till date the bank could not inform as to where Rs. 39,28,139.21/ has gone on the contrary, the contention of the bank that the opposite party is not entitled for reversal of entry and interest thereon has been rejected by Hon'ble DRAT. The bank has tried to assert that the amount of Rs. 39,28,139.21/ has already been re-credit however the bank has not brought on record any such statement and has merely brought on record the Excel sheet which is not admissible in the eyes of law.

17. The present application under Section 27 (4) is wholly misconceived in as much as the amount claimed in OS No. 122 of 1995 was Rs. 95.37.941.03/ alongwith interest at the 21.5% per annum with quarterly rest but the bank despite being found guilty of embezzlement of Rs. 39,28,139.21/- and interest thereon has not disclosed as to what has happened to the said amount which was fraudulently withdrawn by the officer of the Bank who have been found guilty of cheating Rs. 39,28,139.21/-, the bank is under obligation to return the said amount along with an interest at the rate of same rate. The opposite party herein submits that apart from those 78 boucher there was no document showing any due in the shape of entries the remaining amount was interest part which would be evident from the calculation at the same rate that would be 21.5% per annum with quarterly rest as such the applicant bank has absolutely no claim and the same is liable to be rejected. The present application under Section 27 (4) is wholly misconceived and therefore the same is liable to be rejected with cost.

18. Considered the contentions advanced on behalf of the M. Applicants as well as on behalf of the respondents and perused the records.

19 On perusal of record, it appears that the Applicant Bank had filed Original Suit No. 122/1995 UBI Vs. M/s Auto Centre and others before the Civil Judge, Jhansi for Recovery of Rs. 95,37,941.03/- and upon the establishment of DRT Jabalpur, the said case was transferred from Civil Court, Jhansi to DRT Jabalpur. Further on establishment of DRT, Allahabad, on account of jurisdiction, the same was again transferred from DRT, Jabalpur to DRT Allahabad and it was numbered as TA 901/2000. The said TA 901/2000 was decided by this Tribunal vide Judgment dated 02.05.2014 by holding that the Bank is entitled to recover an amount of Rs. 56,09,801.82/- and the Applicant Bank is also entitled to pendent lite and future interest @ 21.50 per annum with quarterly rests from the date of filing of the suit till full recovery is made from the Defendants and direction was given to issue the Recovery Certificate to the tune of Rs. 5609801.82/-.

20. On perusal of record, it further appears that feeling aggrieved by the order dated 02.05.2014, passed in TA 901/2000 by this Tribunal, the Respondents/Borrowers/Defendants filed an Appeal before Hon'ble DRAT ,Allahabad bearing diary No. R-85/2014 – Vikas Kohli Vs. UBI and when the pre-deposit was not waived, the applicant filed CMWP No. 48656 of 2015 wherein on contest, vide order dated 02.12.2016, the Hon'ble High Court was pleased to set aside refusal of waiver and directed to the DRAT, Allahabad to decide the Appeal on merits. Thereafter, the Appeal No. R-85 of 2014 was heard and ultimately, it was decided by the Hon'ble DRAT vide order dated 24.07.2019 by partly allowing the Appeal and holding that the borrowers are not responsible to pay the unauthorized debit entries amounting to Rs. 39,28,139.21/- and any interest thereon. The appellants are entitled for reversal of interest entries applied on such debit entries from the date of debit in account.

21. On perusal of order dated 24.09.2019, passed by the Hon'ble DRAT in Appeal R-85/2014, it appears that vide said order dated 24.07.2019, the Hon'ble DRAT has further held that after exclusion of Rs. 39,28,139.21/- plus interest applied on it i.e. the amount covered in the said illegal and unauthorized entries on the date of the filing of TA, the defendants are liable to pay Rs. 56,09,801.82/-. The Bank would furnish the details of the outstanding after making fresh calculation in view of the above observations and the Tribunal below would MODIFY

the order/Recovery Certificate accordingly. In view of the aforesaid, the appeal is partly allowed to the extent that the Bank is not entitled for the claim of Rs. 39,28,139.21/- and interest thereon. However, the defendants of OA are jointly and severally liable for remaining claim of the Bank, if any, with contractual rate of interest till realization of amount, after exclusion of unauthorized entries.

22. On perusal of record, it further appears that in order to ensure the compliance of the order of Hon'ble DRAT dated 24.07.2019, the respondents/defendants again approached the Hon'ble DRAT Allahabad by filing MA 208/2019 with prayer to implement the order dated 24.07.2019, passed by Hon'ble DRAT Allahabad in Appeal No. R-85/2014. The MA 208/2019 was allowed on 14.09.2023 with the direction to the Bank to comply with the judgment dated 24.07.2019, passed by the Hon'ble DRAT Allahabad in ref/diary No. R-85/2014. The Hon'ble DRAT also observed that no party can be permitted to raise anything else in the case except the compliance of the said order. Vide order dated 14.09.2023, the Hon'ble DRAT has directed the Bank to furnish the details of the outstanding after making fresh calculations and the Tribunal below is to modify the order and Recovery Certificate accordingly.

23. The record available in the present matter further goes to show that the M. Applicant Bank has filed the present MA 03/2021 on 18.01.2021 for modification in the judgment dated 02.05.2014 and also for modification in the Recovery Certificate, issued in pursuance thereof in which notices were issued by this Tribunal on 07.04.2021 against which the borrowers/ defendants/respondents filed writ petition No. 24574 of 2021 which was disposed off by the Hon'ble High Court vide order dated 12.11.2021 without calling for any interference.

24. On perusal of the present Misc. application No. 03/2021, it appears that the applicant Bank has prayed that as per the order dated 24.07.2019 and 14.09.2023, passed by the Hon'ble DRAT, Allahabad in Appeal R-85 of 2014 and M. A. no. 208/2019, the Bank furnished the certified copy of the Calculations of the account of the Defendants from 01.01.1988 till 12.04.1995 and removed the interest entries amounting to Rs. 3,74,537.69/- from the earlier decreed amount of Rs. 56,09,801.82/- and as per the Bank the amount due as on date of filing of the suit before the Civil Court at Jhansi comes to Rs. 52,35,444.13/- accordingly, the prayer is made to modify the judgment/decreed dated 02.05.2014 and also modify the recovery certificate accordingly.

25. The record further reveals that for ensuring compliance of the order dated 18.10.2019 and the judgment of the Hon'ble Appellate Tribunal dated 24.07.2019, an MA No. 208 of 2019 was preferred before the Hon'ble Appellate Tribunal which was allowed by the Hon'ble DRAT, Allahabad vide judgment and order dated 14.09.2023 observing that the contention of the bank that the applicants are not entitled for reversal of the entries as well as interest thereon is incorrect and the Hon'ble DRAT, Allahabad has directed this Tribunal to comply with the judgment and order dated 24.07.2019. For compliance of the order dated 14.09.2023, a separate application has been filed.

26. On perusal of record, it appears that against the order dated 02.05.2014, passed by this Tribunal in TA 901/2000, the Respondents/Borrowers/Defendants filed Appeal No. R-85/2014 before Hon'ble DRAT, Allahabad along with waiver application to waive the required pre-deposit but the Hon'ble DRAT vide orders dated 12.08.2015 and 01.07.2015 rejected the waiver application for waiving pre-deposit against which the Respondents/ Borrowers/Defendants filed Writ C No. 48656 of 2015 which was decided by the Hon'ble High Court vide order dated 02.12.2016. Vide order dated 02.12.2016, the Hon'ble High Court was pleased to set aside refusal of waiver passed by the Hon'ble DRAT and directed to the DRAT, Allahabad to decide the Appeal on merits. The operative portion of the order dated 02.12.2016, passed by the Hon'ble High Court is reproduced as under:- *"Be that as it may, it is not being disputed by the learned counsel for the respondent that ultimately petitioner is being directed to deposit interest on entries that was held by the Debt Recovery Tribunal as forged entries, thus, pre-deposit of any sum would perpetuate forgery and fraud and thereby resulting in gain of the bank. The Debt Recovery Tribunal has not returned a categorical finding that anything is due against the petitioner but was of the opinion that the petitioner is liable to pay interest on the forged entries.*

*I find merit in the submission of the learned counsel for the petitioner that the petitioner has a strong prima facie case that nothing would be due against the petitioner, in the event of the appeal being heard on merit. In the circumstances, the writ petition is allowed. The impugned order dated 12 August 2015 and 1 July 2015 passed by Debt Recovery Appellate Tribunal, Allahabad is set aside. It is provided that the Appellate Tribunal shall decide the pending appeal being Appeal No. R-85 of 2014 (Vikas Kohli and others vs. Union Bank of India) on merit expeditiously without insisting on pre- deposit. The Appellate Tribunal shall proceed to decide the appeal without granting unnecessary adjournment to either of the parties."*

27. In view of the observation made by the Hon'ble High Court in the above writ petition that the petitioner has a strong prima facie case that nothing would be due against the petitioner, in the event of the appeal being heard on merit and since the applicant bank could not furnish the actual outstanding amount due from M/s Auto Centre & others/ defendants/ respondents/borrowers and the judgment of this Tribunal has already been set aside therefore, the bank has lost its case for Rs. 56,09,801.22 and by the present M. Application, the respondent Bank has prayed for recovery of Rs. 117 14,41,007 55/ which is reduced to Rs. 52,35,444 13/- without any basis/documents and since the applicant Bank is failed to bring on record any such statement to show that the amount of Rs. 39,28,139.21 has already been re-credited and has merely brought on record the Excel sheet which is not admissible in the eyes of law therefore, the submissions advanced on behalf of the applicant Bank is not admissible and is liable to be dismissed. Moreover, it is also astonishing that when the total Cash Credit Facility limit of the defendants/respondents/ borrowers was for a sum of Rs. 22.00 lacs only then how an amount of Rs. 39,28,139.21 was allowed to be withdrawn. It also raises suspicion on the M. Applicant Bank. On 02.03.2024, it is submitted by the Ld. Counsel for the M. Applicant that in MA, recovery certificate for Rs. 117,14,41,007.55 has been sought in pursuance of the order of the Hon'ble DRAT while the actual recovery certificate is required for Rs. 52,35,444.13. It is further submitted that whatever, amendment has been sought in the judgment as well as in recovery certificate is with regard to the Cash Credit Limit and not with regard to letter of credit.

28. Since the entire outstanding amount against the borrowers/ defendants/respondents pertains to either 78 fraudulent transactions made by the Officials of the applicant Bank or interest accrued thereon and the applicant Bank is failed to bring on record, any document to show that any other dues was lying against the borrowers/ defendants/respondents, after reversal of forged entries, therefore, the bank is under obligation to reverse the forged entries amount along with an interest at the same rate. Apart from those 78 boucher there was no document showing any due in the shape of entries and the remaining amount was interest part which is evident from the calculation at the rate of 21.5% per annum with quarterly rest and, as such, the present application under Section 27 (4) is wholly misconceived and based on false affidavit, therefore, the same is liable to be dismissed.

29. Accordingly, the M. Application, filed by the M. Applicant Bank is, hereby, dismissed.

This order shall not prejudice any order, passed by higher Courts.

I.A./Interim order passed earlier stands vacated.

A copy of this order be furnished to the parties as per Rules.

Order signed, sealed, dated and pronounced in the open court on this 1^st Day of October, 2024.

Dictated & Corrected by me.

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

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

VK