HDFC BANK vs ANU C C on 14 September 2017

FINAL ORDER

The applicant bank has filed Original Application [OA] on 11.04.2014 under Section 19(1) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 for recovery of a sum of Rs.17,36,895.26 with future interest @ 18% with monthly rests from the date of the application till realization and application costs from the defendants jointly and severally or by sale of properties owned by defendants. BRIEF FACTS OF THE CASE

1. The applicant is Banking Company within the meaning of Banking Regulation Act Constituted under the Companies Act, and having

its registered office at Senapati Bapat Marg Lower Parel, (West) Mumbai- 400013. Even though the agreement is executed at Kollam, the account was being operated by the defendants through Cochin branch. The Business Division at S.L.Plaza being the Regional Office is competent to represent the bank for recovery of the amount. The Manager (Legal) is authorized and competent to verify the application and represent the bank and to file this application by virtue of the power of attorney executed in his favour.

2. It is the case of the applicant that the defendants had submitted loan application for purchasing one Commercial Equipment. Since the defendants were found to be eligible for the loan, the applicant had sanctioned Rs.20,40,000/- after executing loan agreement on 05.11.2012. As per the agreement the defendants agreed to pay back the amount with interest at the rate of Rs.11.91% in 47 equal monthly installments of Rs.54,520/- payable on 5th of every month commencing from 05.12.2012 and ending on 05.10.2016. In addition to the above, defendants had executed a demand promissory note for Rs.20,40,000/- on 05.11.2012 inter alia agreeing to pay on demand the said amount together with interest at the rate of 11.91%.

3. It is stated by the applicant that the defendants did not adhere to the terms and conditions of the sanction and has committed chronic and willful defaults. The applicant’s officials on many times approached the defendants and requested them to regularize the account. As the repeated demands did not yield any result, the applicant on 03.03.2014 issued lawyer notice calling upon the defendants to clear the entire liability. Even after the issuance of lawyer notice, the

defendants failed to pay the outstanding amount. As per the statement of account maintained with the applicant bank, an amount of Rs.17,36,895.26 is due from the defendants as on 13.03.2014.

4. After filing of the OA, the applicant bank has taken out summon as directed by the Tribunal and has filed the proof of service. The summons issued to the defendants was duly served on them and service of summons was completed as per the regulations. Inspite of receipts of summons, the defendants neither appeared nor were they represented and they chose to remain absent and hence they were declared ex-parte on 24.04.2015.

5. The evidence on the side of the applicant bank consists of the proof affidavit of its Manager (Legal), AW1 and Exhibits A1 to A6 are marked on the side of applicant and closed their side of evidence.

6. 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:-

7. The evidence of the applicant bank by way of proof affidavit of its Manager (Legal) AW1, reiterates the facts pleaded in the OA and the affidavit is corroborated by the above referred Exhibits A1 to A6

which clearly establishes the case of the applicant bank to allow the present OA. Added to this, the absence of defendants in spite of service of summons appears to be intentional without any bonafide reasons and it appears that they remained absent as they admitted the entire case of the applicant as sought for in the present OA.

8. In view of the above the present OA is to be allowed with costs as sought by the applicant bank. Having regard to the amount advanced, the interest applied, the conduct and operations in the account and the default committed, I am of the view that the applicant bank is entitled to get a final order on the following lines:-

O R D E R

(a) The OA is allowed with costs.

(b) The defendants jointly and severally are directed pay a sum of Rs.17,36,895.26 (Rupees Seventeen lakhs thirty six thousand eight hundred ninety five and paise twenty six only) with future @ 11.91% per annum with monthly rests from 08.04.2014 till realization and also its costs from the defendants personally.

(c) In the event of non-realization of the OA claim amount, the bank is at liberty to proceed against the person and other properties of the defendants as required under law.

(d) The applicant bank shall file memo of costs within seven 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.

9. 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 PS, transcribed by her, corrected by me and then pronounced in the open court on this the 14th day of September, 2017]

(S.V.GOWRAMMA) Presiding Officer

A P P E N D I X Witness for Applicant: AW1: Shyam Menon, Manager (Legal) of the applicant bank.

Witness for Defendants: Nil

Exhibits on the part of the applicant

Ext.No. Date Particulars of documents

A1

The Board of Resolution A2 29.10.2012 The commercial equipment loan application submitted by the defendants. A3 05.11.2012 Agreement for Loan and guarantee executed by the defendants along with the schedule showing tenure and mode of repayment. A4 05.11.2012 Demand Promissory Note for an amount of 20,40,000/- executed by the defendants in favour of the applicant bank A5 03.03.2014 Lawyer notice issued by the applicant to the defendants. A6

Statement of accounts of loan transaction of loan account No.80469484 from 05.11.2012 to 13.03.2014 duly certified under the Bankers Book Evidence Act.

Defendants’ Exhibits – Nil

(PRESIDING OFFICER)

IN THE DEBTS RECOVERY TRIBUNAL-II, KERALA AT ERNAKULAM

Dated this the 14th day of September, 2017

Present: S.V.Gowramma, B.A., LL.B Presiding Officer

Between HDFC Bank Ltd. …Applicant And Anu.C & another.

…Defendants

FINAL ORDER