HDFC BANK vs ATHMALAL K.S on 29 August 2018

**FINAL ORDER**

This Original Application is filed on 15.08.2015 under Section 19(1) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 for recovery of a sum of Rs.10,87,695.24 (Rupees Ten Lakhs Eighty Seven Thousand Six hundred and Ninety Five and paise Twenty Four only) with interest @ 12.51% per annum with monthly rests and overdue interest @ 2% per month from 10.07.2015 till realization, to be recovered by sale of other assets of the defendants and personally against them.

2**BRIEF FACTS OF THE CASE**

1. The applicant is a company incorporated under the Companies Act 1956 and a banking company within the meaning of Banking Regulation Act, 1949 engaged in the business of banking and is a Bank as defined u/s 2(d) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 having its registered office at Mumbai and having branches all over India including its regional office at S.L Plaza, Palarivattom, Ernakulam. The applicant bank is represented by its Dy.Manager, who is empowered to represent the applicant in all its proceedings.

2. It is submitted by the applicant that the Defendant No. 1 & 2 jointly availed loan on 21.10.2014 and executed the loan documents 07.11.2015, demand notice is issued on 11.08.2015 and the OA is filed on 23.08.2015 and the same is within the period of limitation prescribed under section 24 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

3. It is the case of the applicant that the defendants submitted a loan application on 21.10.2014 for the purchase of Tata-model Tipper (909) and the loan was sanctioned and disbursed by the applicant bank on 07.11.2014 for an amount of Rs.10,95,000/-. On the same day, the defendants executed a Demand promissory Note promising to repay on demand the loan amount of Rs.10,95,000/- with interest @ 12.51% per annum. The defendants also executed a Loan Agreement on 07.11.2014 and agreed to repay the loan amount in 36 equated monthly installments of Rs.36,639/- and the repayment to start from 05.12.2014 and as per the agreement the applicant bank is at liberty to recall the loan in the event of non-payment of any of the installments.

4. After availing the loan, the defendants had defaulted the installments from the beginning of the repayment schedule and the cheques issued by the defendants were returned dishonored and hence the bank issued Loan Recall/Legal Notice dated 11.07.2015 & 11.08.2015 to both defendants 1 and 2 respectively. The notice sent to the 1^st defendant was returned with the remark "left" and notice to the 2^nd defendant has been served and copy of the AD card was received back from the 2^nd defendant. Even after the issuance of the Legal notice, the defendants did not repay the dues. As per the statement of accounts maintained by the applicant bank, a total amount of Rs.10,87,695.24 is due from the defendants and hence the applicant was constrained to file this original application for recovery of the said amount.

5. After filing of the OA, the applicant has taken out summons as directed by this Tribunal and has filed proof of service on 05.12.2015. The summons issued to the defendant is duly served and service of summons is completed as per the regulations. The defendants neither appeared nor filed the vakalah to contest the case. Since there was no appearance for the defendants nor were represented by any counsel, they were placed exparte on 05.04.2017.

6. The evidence on the side of the applicant bank consists of the proof affidavit of its Manager, AW1 and Exhibits

A1 to A13 is marked on the side of applicant and closed their side of evidence.

7. Heard arguments of the applicant bank and perused the records of the case. The following points arise for my consideration:

**(i) *Whether the applicant is entitled for the reliefs prayed for in the OA?***

**(ii) *What order?***

My findings on the above points are as follows:- **Point No.(i): In the affirmative**

**Point No.(ii): As per final order.**

**Reasons:-**

8. The evidence of the applicant bank by way of proof affidavit of Manager AW1, reiterates the facts pleaded in the OA and the affidavit is corroborated by the above referred Exhibits A1 to A13 which clearly establishes the case of the applicant bank to allow the present OA. Even otherwise the whole case of the applicant bank is based on the documentary evidence and the witness has duly proved all the documents exhibited by him. It is quite evident from the documents placed on record by the applicant bank that defendants have availed the financial assistance from the respondent bank and failed to repay the dues of the respondent bank. Added to this, it appears that the defendants did not contest the matter as they admitted the entire case of the applicant as sought for in the OA. In view of the above, the present OA is to be allowed with costs as sought by the applicant bank.

9. Having regard to the amount advanced, the interest applied, the conduct and operations in the account and the default committed, the Tribunal is of the view that the applicant bank is entitled to get a final order on the following lines:-

**ORDER**

- (a) The OA is allowed with costs.

- (b) The defendants are jointly and severally directed to pay a sum of Rs.10,87,695.24 (Rupees Ten Lakhs Eighty Seven Thousand Six hundred and Ninety Five and paise Twenty Four only) 11% p.a with monthly rests from 10.07.2015 till realisation and also its cost from the defendant;

- (c) In the event of non-realization of the OA claim amount, the bank is at liberty to proceed against the properties of the defendant, as required under law;

- (d) The applicant bank shall file memo of costs within ten days from the date of this final order;

- (e) Recovery Certificate shall be drawn up and issued to the Recovery Officer in terms of the final order.

10. The Registry is directed to communicate copy of the order to the parties concerned by speed post or registered post with AD.

*[Dictated to the steno, transcribed by her, corrected by me and then pronounced in the open court on this the 29^th day of August, 2018]*

(S.V Pre

APPENDIX

Witness for Applicant:

AW1: Mr. Shyam Menon, Manager of the applicant bank.

Witness for Defendant(s): Nil

Exhibits on the part of the applicant

<table border="1"> <thead> <tr> <th><u>Ext.No.</u></th> <th><u>Date</u></th> <th><u>Particulars of documents</u></th> </tr> </thead> <tbody> <tr> <td>A1</td> <td>21.10.2014</td> <td>Loan application form submitted by the defendant</td> </tr> <tr> <td>A2</td> <td>07.11.2014</td> <td>Demand Promissory Note executed by the defendants</td> </tr> <tr> <td>A3</td> <td>07.11.2014</td> <td>Loan Agreement executed by the defendants</td> </tr> <tr> <td>A4</td> <td>11.07.2015</td> <td>Loan recall/Legal notice issued to 1^st defendant</td> </tr> <tr> <td>A5</td> <td>11.08.2015</td> <td>Loan recall/Legal notice issued to 2^nd defendant</td> </tr> <tr> <td>A6</td> <td>13.07.2015</td> <td>Postal receipt of the notice served to the 1^st defendant</td> </tr> <tr> <td>A7</td> <td>12.08.2015</td> <td>Postal receipt of the notice served to the 2^nd defendant</td> </tr> <tr> <td>A8</td> <td>-</td> <td>Return cover of the notice issued to 1^st defendant</td> </tr> <tr> <td>A9</td> <td>-</td> <td>Postal AD card on the notice issued to 2^nd defendant</td> </tr> <tr> <td>A10</td> <td>-</td> <td>Statement of accounts maintained by the bank for the period from 21.10.2014 to 10.07.2015</td> </tr> <tr> <td>A11</td> <td>-</td> <td>Foreclosure Statement certified under Bankers Book Evidence Act</td> </tr> <tr> <td>A12</td> <td>24.08.2015</td> <td>Certificate under Section 2A of Banker's Book Evidence Act 1891</td> </tr> <tr> <td>A13</td> <td>24.08.2015</td> <td>Certificate under Section 2A(b) and 2A(c) of Banker's Book Evidence Act 1891</td> </tr> </tbody> </table>

Defendant's Exhibits - Nil

(PRE

**IN THE DEBTS RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM**

Dated this the 29^th day of August, 2018

**Present: S.V.Gowramma, B.A., LL.B**

**Presiding Officer**

T.A No: 1628 / 2016 [OA No:404 /2015]

**Between**

HDFC Bank Ltd.,

....Applicant

**And**

Athmalal. K.S, & another

...Defendants

**FINAL ORDER**

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10/8/2018 DEBTS RECOVERY TRIBUNAL ERNAKULAM