MS RAJEEV KANGAN STORE SITUATE vs STATE BANK OF INDIA on 23 October 2023

**JUDGMENT**

1. 1. This is a time bound matter by the Hon'ble High Court.

2. 2. This M. A. has been filed by the M. Applicant praying therein that this Tribunal be pleased to direct the respondent Bank to return the excess amount as paid by the M. Applicant on demand of respondent Bank, otherwise, the M. Applicant shall suffer irreparable loss and injury.

3. 3. The reply of the M. Application has been filed by the respondent Bank, denying all the allegations leveled by the M. Applicant.

4. 4. This is the time bound matter by the Hon'ble High Court vide order dated 12.04.2023, passed in Writ C. No. 12084 of 2023. Relevant para of the order is as under:- *"Under such facts and circumstances, writ petition is disposed of with direction to Presiding Officer, D.R.T., Allahabad to decide the Misc. Application No. 138 of 2022 (M/s Rajeev Kangan Store Vs. State Bank of India and another) within the time given in Section 17(5) of Act, 2002 i.e. four months without granting any unnecessary adjournment to either of the parties. In case, any adjournment is granted, reasons shall be recorded for the same."*

1. 5. Heart the learned counsels appearing for the parties on merits of the M. A.

2. 6. It is submitted by the Ld. Counsel for the M. Applicant that the respondent Bank has received an excess amount of Rs. 14.00 lacs (Annexure-5 paying slip is attached) but it is a fact that in the aforesaid pay slip, the account number of the S. Applicant has not been mentioned. It is submitted by the Ld. Counsel for the M. Applicant that the loan account of the M. Applicant was settled under the OTS (Annexure No. 12 at page No.

23.09.2015 and the loan account of the M. Applicant was closed on 11.12.2015 (Annexure No. 13 at page No. 40-50). It is further submitted that the respondent Bank has illegally and malafidely taken amount of Rs. 14.00 lacs after closer of loan account i.e. on 03.09.2016, 17.09.2016 and 26.09.2016 from the applicant which, is clearly shown from the receipt (Annexure No. 9 at page No. 35 of the M. Application). Request is made that the respondent Bank may be directed to return/refund the access amount of Rs. 14.00 lacs deposited by the S. Applicant after closure of the account through settlement.

7. On the other hand, the Ld. Counsel for the respondent Bank submitted that the present Misc. Application is based on wrong fact and grounds and is liable to be dismissed with cost. It is further submitted that the present MA is hopelessly highly time barred and is filed without any delay condonation application. The instant MA is filed without explaining the cause of delay while it is admitted fact that applicant had received the title deeds and "No-Dues" certificate on 12.04.2017 (Annexed DA-1 of reply) and this MA is filed after 4 years by fabrication the wrong facts. Thus it is clear that the applicant filed for wrongful gain which is too much beyond reasonable time. It is further submitted that during the pendency of SA No. 207/2010 and OA No 328/2012 an Award was passed on 23.11 2013 through which it was consented by both the parties that the entire matter is settled for Rs 15.31.923.00 together with interest from 08.10.2012 and the mandatory condition that the said amount should be paid within 12 months computed from 01.12.2013. But the applicant never abided by the said award and deposited only Rs 7,59,000/- which may be proved by perusal of Statement of Account filed by the Defendant Bank (Annexure DA-2). Remaining principal amount of Rs.5,85,350.67 was transferred to its AUCA on 11.12.2015. In this AUCA Account interest as per award dated 23.11.2013, interest due from 08.10.2012 is not included. It is further submitted that the applicant wrongly stated that the account was closed on 11.12.2015. He is misconceived with the provisions of Law and procedure. Bank transferred the remaining outstanding to AUCA Account but liability of said transferred amount and due interest was still upon the Applicant and Bank has right to recover the same. It is further submitted that during the course of last day proceeding, the applicant stated that account was compromised for Rs.7,59,000/- is absolutely wrong and misleading. No such compromise was held between the parties. There was only one settlement i.e. Award dated 23.11.2013 passed by the Hon'ble Debts Recovery Tribunal Allahabad through which applicant had to pay Rs 15.31,923.00 together with interest from 08.10.2012 and the mandatory condition that the said amount should be paid within 12 months computed from 01.12.2013 and the terms of said award was never complied by the applicant Applicant paid only Rs 7,59,000/-on 23.09.2015. It is further submitted that the applicant is taking shelter of Bank's reply given under RTI is also not enforceable in the instant case. Bank never said the applicant's account was closed for Rs.7,59,000/-. It was only that under said compromise/award Rs.7,59,000/- was deposited. No other meaning can be drawn on the basis of said RTI reply. If there is any such compromise, the applicant should present the same in Court of Law. It is further submitted that as far as three counter slips of deposits as annexed with Misc. Application is concerned, as per bank's records, no such amounts were deposited in loan account. It is necessary to scrutinize the annexed counter slips. It is submitted that there are following shortcomings in the aforesaid deposit slips:-

- (i) No Account Number is mentioned – Without account number no amount can be deposited in loan account.

- (ii) In the said Counter Slip word "BM Account" is written. There is no existence of any such account as BM Account.

- (iii) No such entry in cash book, day book is found.

- (iv) All the vouchers of said dates were seriously and manually searched but no such vouchers of said amount is found.

On the basis of the above facts, the respondent Bank in its reply has stated that the said counter slips are not authentic. It cannot be relied. It is submitted by the Ld. Counsel for the respondent Bank that this MA is filed for nothing except for gaining the undue advantage from the local branch of answering defendant. Hence, the M. Applicant is not entitled for any relief. The Bank has never received excess amount. Request is made that the present M. Application may be dismissed.

8. Considered the rival contentions of the parties and perused the records.

9. On perusal of record, it is observed that during the pendency of SA No. 207/2010 and OA No 328/2012 an Award was passed on 23.11 2013 vide which it was consented by both the parties that the entire matter is settled for Rs 15.31.923/- together with interest from 08.10.2012 and the mandatory condition that the said amount should be paid within 12 months computed from 01.12.2013. But the applicant never abided by the said award and had deposited only Rs 7,59,000/- which may be proved by perusal of Statement of Account filed by the Defendant Bank (Annexure DA-2). Further, remaining principal amount of Rs.5,85,350.67 was transferred to its AUCA on 11.12.2015. In this AUCA Account interest as per award dated 23.11.2013, interest due from 08.10.2012 is not included. The applicant has wrongly submitted that the account was closed on 11.12.2015. The M. Applicant is misconceived with the provisions of Law and procedure. Bank transferred the remaining outstanding to AUCA Account but liability of said transferred amount and due interest was still upon the Applicant and Bank has right to recover the same. During the course of last day proceeding, the applicant stated that account was compromised for Rs.7,59,000/- is absolutely wrong and misleading. On perusal of record, it is seen that no such compromise was held between the parties. There was only one settlement i.e. Award dated 23.11.2013 passed by the Hon'ble Debts Recovery Tribunal Allahabad through which applicant had to pay Rs 15.31,923.00 together with interest from 08.10.2012 and the mandatory condition that the said amount should be paid within 12 months computed from 01.12.2013 and the terms of said award was never complied by the applicant Applicant paid only Rs 7,59,000/- on 23.09.2015.

10. Further on perusal of record, it is seen that the M. Applicant has filed 03 counter slips dated 03.09.2016, 26.09.2016 and 17.09.2016 and as per the slips, an amount of Rs. 14.00 lacs in total is shown to be deposited.

However, no Account Number has been mentioned in the aforesaid counter slips. In my opinion it is not possible that without account number any amount can be deposited in loan account. In the said Counter Slip word "BM Account" is written. As per Bank, there is no existence of any such account as BM Account. Further, no such entry in cash book, day book is found.

11. In view of the aforesaid facts and circumstances, since the S. Applicant is failed to prove that after depositing final amount as per settlement/Award, the M. Applicant has deposited any further amount of Rs. 14.00 lacs and, as such, the M. Application filed by the S. Applicant lacks merits and accordingly, the same is liable to be dismissed.

**ORDER**

The M. Application, filed by the M. Applicant is, hereby, dismissed.

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

Judgment signed, sealed, dated and pronounced in the open court on this 23^rd Day of October, 2023.

Dictated & Corrected by me.

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

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

VK