BANK OF BARODA vs M/S SAMRAH CREATIONS on 23 April 2024

**JUDGEMENT**

1. 1. The applicant bank had filed O.A. no. 664 of 2017 under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 before DRT Allahabad against the defendants for the recovery of Rs. 20,49,455.00 (Rupees Twenty lacs, forty nine thousand, four hundred fifty five only) together with pendentelite and future interest, costs and other reliefs etc. After change of jurisdiction this file has been received on transfer from DRT Allahabad.

1. 2. The brief facts of case are that the defendants No.1 is a proprietorship firm of which defendant no.2 is the sole proprietor. The defendant no.2 on behalf of defendant no.1 approached the applicant bank for financial assistance. The applicant bank considered the request of the defendants and sanctioned Cash Credit Limit of Rs. 14.00 lacs and Term Loan Facility of Rs. 1.00 lac.

2. 3. To secure aforesaid credit facility, defendants had executed and signed various security documents in favour of the applicant-bank on 3.2.2014 (Exhibit A-2 to A-12).

3. 4. To avail the aforesaid credit facility, the applicant-bank opened loan account in the name of the defendant No.1.

4. 5. After availing the abovementioned credit facility from the applicant-bank, the defendants failed to maintain financial discipline and also failed to comply with the terms and conditions of agreement as required in the matter. The applicant-bank made all possible efforts through oral persuasion and letters etc. The defendants was reminded many times by several applications by the applicant-bank to regularize the loan account, but the defendants kept mum and have not come forward to make any efforts regarding payment of dues but the loan account of the defendants were remained irregular and the defendants did not care to deposit the amount to adjust/ regularize the account despite various assurances given by defendants. Consequently, the loan accounts of the defendant No.1 were classified as N.P.A. by the applicant-bank as per RBI guidelines, therefore, the applicant-bank issued notice Dated 6.5.2016 (Exhibit No.A-15) to the defendants and requested for repayments, but the Defendants did not paid their heed to the same, hence, this Original Application has been instituted.

5. 6. As per books of the bank maintained in the usual and ordinary course of banking business, an outstanding of Rs. 20,49,455.00 (Rupees Twenty lacs, forty nine thousand, four hundred fifty five only) including interest upto 20.8.2017, were lying due for payment, for which the defendants are jointly and severally liable to repay the same, which they did not pay despite repeated requests and demand. The applicant bank filed the Statement of loan Accounts. (Exhibit No.A-17)

7. The cause of action for filing the present application arose firstly when the aforesaid credit facility were sanctioned by the applicant Bank and the same were availed by the defendants and necessary documents were executed by the defendants on 3.2.2014 and on 31.1.2017 when balance confirmation letter was signed. The cause of action further arose on when demand Notice dt. 6.5.2016 was sent to the defendants, recalling the entire outstanding dues and they failed to pay the same.

8. The summons were served upon the defendant through registered post **as well as by publication**, but the defendants did not appear before the Tribunal to contest their case, hence the matter proceeded ex- parte against the defendants.

9. From the perusal of the record, it is evident that the defendants were provided with fair opportunities to contest the claim of the bank. As the defendants opted not to contest the case, so only point of consideration before this Tribunal is as to whether bank is legally entitled to the amount as claimed in Original Application on the basis of documents and pleading submitted by it.

10. In support of the case Shri Shreedhar Chetan, Senior Branch Manager of the applicant bank has filed an affidavit.

11. On a careful scrutiny of the evidence on affidavit and Exhibits marked as Exhibit No.A-1 to Exhibit No.A-18, it is proved that defendants had availed the credit facilities from the applicant-bank by executing loan and security documents detailed as above in favour of the applicant- Bank. A perusal of the application, evidence and documents relied upon clearly show that defendant had utilized the above loan facilities as granted to them. The applicant-bank had maintained the Books of account in the ordinary course of banking business showing disbursal of the loan amount. The Bank had also charged interest from time to time and the entries are relevant u/s 4 of the Banker Books of Evidence Act. It is also proved that the applicant-bank's claim is within limitation against defendants, therefore, the defendants are jointly and severally liable to pay the dues.

12. Accordingly, the defendants No. 1 & 2 are directed to pay the balance dues to the applicant bank within a period of 2 months from the date of judgement failing which the applicant bank will be entitled to sell the hypothecated assets and personal assets/ properties of the defendants.

13. The applicant-bank has claimed interest@ 14.35% per annum with monthly rest w.e.f. 21.8.2017 till the date of realization and costs. The contest between applicant-bank and the defendants comes to an end after filing of the O.A. as per the provisions of Section 19(2) of the Recovery of Debts and Bankruptcy Act 1993 (as amended from time to time) which is analogous to Section 34 to the CPC, the Tribunal/ Court has direction in awarding pendent-lite and future interest. I am also supported in my view by **Hon'ble Supreme Court** in a case titled **Central Bank of India vs. Ravindra and others reported in AIR 2001 SC page 3095**. On the basis of foregoing discussion, interest of justice will be served if pendent- lite and future interest is granted @ 12.00% per annum with monthly rate reducing balance from the date of filing of the O.A. till the date of realization with costs.

14. In the result, the Original Application succeeds as exparte against the defendant no. 1 & 2 with costs. The bank has proved the loan execution of loan documents in favour of the bank and availment of credit facility. The liability of the defendant no. 1 & 2 are joint and several and hypothecated asset as well as the personal properties are to be sold.

It is, therefore , **ordered**

1. (i) That the Transfer Application No. 21 of 2018 of the applicant bank for issuance of Recovery Certificate to the tune of Rs. 20,49,455.00 (Rupees Twenty lacs, forty nine thousand, four hundred fifty five only) along with the interest @ 12.00% per annum with monthly rest from the date of filing of the Original Application i.e. 07.9.2017 till the loan is fully liquidated and costs succeeds exparte against the defendant No.1 & 2.

- (ii) The defendants are directed to pay the dues within a period of two months from the date of judgement, failing which the applicant bank will be entitled to recover the same from the secured assets, personal movables and immovable assets of the defendants.

- (iii) The applicant-bank is entitled to recover aforesaid amount by sale of hypothecated assets (if not sold earlier under the provision of the S.A.R.F.A.E.S.I. Act 2002). The amount, if any already recovered by sale of any hypothecated assets or otherwise shall be recoverable, if the dues of the applicant bank still remain unsatisfied, the same shall be recovered by attachment and sale of the personal movable assets of the defendant jointly and severally.

- (iv) The defendants are here by restrained by means of injunction from depleting, transferring, encumbering, alienating or in any way dealing with their properties/estates without first paying the claim of the applicant-bank.

- (v) Let Recovery Certificate be issued immediately u/s 19(22) of the Recovery of Debts & Bankruptcy Act, 1993 by fixing 23.7.2024 before Recovery Officer, DRT, Lucknow.

Judgement is pronounced in the open court.

Dated: 23.4.2024

(A.H.KHAN) Presiding Officer

(vks)