CENTRAL BANK OF INDIA vs Sri Rajesh Prasad on 19 March 2020

J U D G M E N T

(Delivered 19^th March 2020)

The applicant bank is a body corporation, constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, having it's Central Office at Chandarmukhi, Nariman Point, Bombay-400021 and Branch Office at Bagdogra, Post Office and Police Station Bagdogra, District Darjeeling, West Bengal.

The facts in brief, giving rise to the present application as pleaded are as under.

The Defendant applied to the applicant bank on 15.03.2011 for a Term Loan of Rs.63.00 lakhs for purchasing three AMWL2518 TIPPER BS III vehicles, vide loan application dated 15/3/2011 and the applicant bank considering the said application, sanctioned Term Loan of a sum of Rs.63.00 lakhs for purchasing three AMWL2518 TIPPER BS III vehicles in favour of the Defendant vide Sanction Letter dated 23.04.2011 on condition to repay the same by 60 monthly installments of Rs.1,70,625/- besides interest @12.50% per annum with monthly rests subject to changes from time to time as per Reserve Bank of India Directives besides other terms and conditions.

In compliance with the terms and conditions of the Sanction, the Defendant executed Deed of Hypothecation of Moveable Plant and Machinery, Term Loan Agreement for

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Hypothecation of Vehicle, Consent Clause and Loan Agreement in favour of the Applicant Bank as security for the said loan.

It is the contention of the applicant bank that after availment of the loan by the defendant, the said loan account became most irregular and inspite of repeated requests and reminders the Defendant did not regularize the said account, as a result of which, the account was classified as NPA on 20.06.2016 as per guidelines of Reserve Bank of India.

After the loan account was classified as NPA, the Applicant bank through Advocate issued Demand Notice on 04.08.2016 & 08.08.2016 under Regd. Post with A/D upon the Defendant to pay a sum of Rs. 39,51,637.00 (Rupees Thirty-nine Lakhs Fifty-one Thousand Six Hundred and Thirty-seven) only which is due and outstanding in the aforesaid loan account as on 03.08.2016. Inspite of the said Demand Notices, the Defendant failed and neglected to repay the dues of the said loan account and/or comply the same though However, the Defendant made some deposits in the loan account almost every year after sanction of the said loan and last cash deposit was made on 19.03.2016 of a sum of Rs. 50,000/- ( Rupees Fifty thousand) only in the said loan account.

According to the applicant bank, after giving credits for all sums of moneys paid by and/or realized on behalf of the defendant, there is now due from and owing by the said defendant in respect of the Loan Account a sum of Rs. 39,60,719.00 (Rupees thirty nine lakhs sixty thousand seven hundred and nineteen) only with interest calculated upto 09.08.2016.

One learned counsel appeared on behalf of the defendant and undertook to file the written statement against the claim of the applicant bank. Since then the defendant neither appeared nor filed any written statement despite sufficient opportunity. Hence, the defendant was ordered to be proceeded ex-parte on 24/1/2019.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Deepak Kumar, the Branch Manager of the applicant bank and also relied upon the following documents:- <table border="1"> <thead> <tr> <th>Sl. No.</th> <th>Name of the documents</th> <th>Exhibit No.</th> </tr> </thead> <tbody> <tr> <td>1.</td> <td>Loan application dated 15/3/2011</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Sanction Letter dated 23.04.2011</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Deed of Hypothecation of Moveable Plant and Machinery dated 21/7/2011</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Term Loan Agreement for Hypothecation of Vehicle dated 21/7/2011</td> <td>4</td> </tr> <tr> <td>5.</td> <td>Consent Clause dated 21/7/2011</td> <td>5</td> </tr> </tbody> </table>

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<table border="1"> <tr> <td>6.</td> <td>Loan Agreement dated 21/7/2011</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Demand Notice dated 04.08.2016 &amp; 08.08.2016</td> <td>7 &amp; 8</td> </tr> <tr> <td>8.</td> <td>Statement of Account</td> <td>9</td> </tr> </table>

I have heard the learned counsel for applicant bank and perused the documents and Evidence filed by applicant bank. By the said evidence on affidavit, the Applicant bank has proved its claim. It is settled law that an averment which is not denied by the opposite party i.e. defendant in the present matter, by way of filing written statement or by producing evidence must be taken by the Tribunal/ Court to have admitted by the defendant. In the present matter the defendant has neither filed written statement nor produced any evidence in their support to challenge the claim of applicant bank.

The claim of the Applicant bank is within the limitation and within the jurisdiction of this Tribunal. The applicant has sufficient cause of action for filing the instant application due to disbursement/availment of loan to/by the defendant and on default in repayment of the loan by the defendant, in spite of demands made, as per exhibited documents filed by the applicant bank.

In the above circumstances, it is ordered :

ORDER

T.O.A.No.491/2017 arising out of O.A. No. 616/2016 filed by the Applicant Bank is allowed against the sole defendant and it is hereby ordered that the Applicant Bank is entitled to recover from the above said defendant the total debt amount for Rs.39,60,719.00 (Rupees thirty nine lakhs sixty thousand seven hundred and nineteen) only with further interest thereon @ 12.00% p.a. with quarterly rests from the date of filing of the application till realization of entire balance.

Amount, if any, paid by the defendant in the loan account or amount recovered by the applicant bank, if any, made towards the loan accounts after filing of the O.A be taken into account while arriving at the exact amount of outstanding payable by the defendant.

The hypothecated vehicles being (1) AMWL2518 TIPPER BS III bearing Registration No. WB 73 C 2408, Engine No. 11D63124108, Chassis No. MBYB24900BEA 18884, Year of Manufacturing- 2011, Maker's Name- AMW Asia Motors Works Ltd. (2) AMWL2518 TIPPER BS III Tipper BS III bearing Registration No. WB 73 C 2409, Engine No. 11E84006155, Chassis No. MBYB97600BFA17545, Year of Manufacturing: 2011, Maker's Name- AMW Asia

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Motors Works Ltd. (3) AMWL2518 TIPPER BS III Tipper BS III bearing Registration No. WB 73 C 2410, Engine No. 11D63124091, Chassis No. MBYB97600BFA17963, Year of Manufacturing: 2011, Maker's Name- AMW Asia Motors Works Ltd., as mentioned in the Schedule-X of the original application, shall remain charged to the Applicant Bank and the Applicant Bank shall have paramount charge thereon.

The defendant is debarred from transferring; alienating, encumbering or disposing of the hypothecated/mortgaged properties or any other property and assets belonging to the defendant till the aforesaid adjudicated debt amount is recovered from the defendant.

The defendant is given a time of thirty days from the date of this judgment/final order for repayment of the above mentioned dues, so initiated to them. In case of failure of defendant to pay the dues within the time as aforesaid, the Applicant Bank is entitled to recover its dues by sale of the hypothecated/mortgaged property as aforesaid and is also entitled to proceed against the said defendant personally and/or personal properties to recover the dues in accordance with law.

Let the certificate of Recovery be drawn up by Learned Registrar in charge forthwith in terms of judgment for issuance of the same against the defendant in favour of Applicant Bank under Sub-Section 7 and 22 of Section-19 of The Recovery of Debts and Bankruptcy Act, 1993 and put up the same for signature for issuance.

This judgment is signed and pronounced in the open Tribunal on this day the 19^th day of March, 2020.

Copy of the judgment/final order be given/sent to the parties.

**(D.S. MAHRA)** **Presiding Officer** **DRT, Siliguri.**

Siliguri