BANK OF INDIA vs JOJIMOL GEORGE on 6 February 2017

**FINAL ORDER**

This Original Application has been filed on 05.03.2015 under Section 19(1) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 for recovery of a sum of Rs.17,42,917/- with further interest @14.20% per annum with monthly rests on the sum of Rs.16,06,191/- being the amount due under the term loan account and @14.20% per annum with monthly rests on the sum of Rs.1,36,726/- being the amount due under the cash credit account from the defendant and by sale of 'A' schedule properties.

A circular official stamp of the Debt Recovery Tribunal-2, Kerala. The outer ring contains the text 'DEBT RECOVERY TRIBUNAL-2' at the top and 'Kerala' at the bottom. The center of the stamp contains the date '06.02.2017' and a signature.

TA 566/2016 (OA 99/2015)2**BRIEF FACTS OF THE CASE**

1. The defendant is a businesswoman undertaking printing works and manufacture and sale of note books, account books, wedding cards, visiting cards etc. under the name and style 'Marivil Offset Printers' at Kollam. The defendant approached the applicant Kavanad Branch for financial assistance and having considered the request, the applicant sanctioned a term loan of Rs.13.68 lakhs and cash credit limit of Rs.2.58 lakhs on 09.07.2010.

2. The term loan of Rs.13.68 lakhs is repayable the rate of @4% over the base rate with a minimum of 12% per annum with monthly rests and the defendant executed demand promissory note on 30.07.2010 undertaking to pay the said amount with. In addition to the aforesaid demand promissory notice, on 30.07.2010 the defendant also executed documents such as letter regarding repayment of loan by installments, consolidated agreement and hypothecation-cum-loan agreement. The defendant also executed an acknowledgment of debt/securities on 23.03.2012 whereby she confirmed the balance due under the term loan account as on 22.03.2012 as Rs.12,35,875/-.

3. It is the case of the applicant that on 30.07.2010, the defendant availed cash credit limit of Rs.2.58 lakhs and executed demand promissory notice for Rs.2.58 lakhs, consolidated agreement and hypothecation-cum-loan agreement towards security for repayment of the cash credit limit of Rs.2.58 lakhs availed from the applicant bank. The defendant executed acknowledgment of debt/securities on 13.07.2013 whereby she confirmed the balance due under the cash credit account as on 12.07.2013 as Rs.98,119/- TA 566/2016 (OA 99/2015)3

4. It is stated by the applicant that the defendant did not adhere to the terms and conditions of sanction and the repayment were irregular and thus both loan accounts were classified as NPA on 30.06.2013. As per the accounts maintained by the applicant bank, as on 04.03.2015 an amount of Rs.16,06,191/- is due under the term loan account and Rs.1,36,726/- is due under the cash credit account.

5. The defendant was duly served with summons. Though she had filed vakalat on 01.10.2015, no written statement was filed despite sufficient opportunity granted and chose to remain absent from the proceedings. In view of the establishment of DRT.2, Ernakulam, the registry had issued notice to the defendant counsel on record intimating the transfer of the present OA to new DRT2. In spite of notice none represented for defendant, hence the defendant was placed exparte on 27.09.2016.

6. The evidence on the side of the applicant bank consists of the proof affidavit of its Manager (AW1) and Exts.A1 to A14.

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?**

8. The case of the applicant bank for the recovery of the sum of Rs.16,06,191/- claimed as due under Exts.A11 and A12 statements of account relating to the term loan as on 04.03.2015 together with interest pendeite lite and post decree interest thereon from the defendant and A circular stamp is located at the bottom center of the page. It contains the text 'REGISTRY' at the top, 'Ernakulam' in the center, and 'L.T.' at the bottom. There is a small star symbol in the center of the stamp.

TA 566/2016 (OA 99/2015)4

by sale of 'A' schedule properties and the sum of Rs.1,36,726/- claimed as due under Exts.A13 and A14 statements of account relating to the cash credit limit as on 04.03.2015 together with interest pendeite lite and post decree interest thereon from the defendant and by sale of 'A' schedule properties, is proved by the proof affidavit of its Manager, AW1 and Exts.A1 to A14. Having regard to the amounts 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 interest pendeite-lite and post-decree interest @14.20% per annum with monthly rests in both the loan accounts, as prayed for.

9. The applicant bank, therefore, is entitled to get a final order on the following lines:-

**ORDER**

The OA is allowed with cost. The defendant is directed to pay the applicant as follows:

1. (i) a sum of Rs.16,06,191/- (Rupees sixteen lakhs six thousand one hundred and ninety one only) due under the term loan account with further interest thereon @14.20% per annum with monthly rests from 05.03.2015 till realization from the defendant and by sale of 'A' schedule properties;

2. (ii) a sum of Rs.1,36,726/- (Rupees one lakh thirty six thousand seven hundred and twenty six only) due under the cash credit account with further interest thereon @14.20% per annum with monthly rests from 05.03.2015 till realization A circular stamp from the Ernakulam District Court, Debt Recovery Section. The text 'DEBTS RECOVERY SECTION' is written around the top inner edge, and 'Ernakulam' is in the center. A star is located at the bottom, and the number '22' is in the top right corner.

TA 566/2016 (OA 99/2015)

from the defendant and by sale of 'A' schedule properties; and

(iii) also its costs from the defendant and by sale of 'A' schedule properties.

10. 'A' schedule to the OA shall be appended to this order.

11. The applicant bank shall file memo of costs within ten days from the date of this final order.

12. Recovery Certificate shall be drawn up and issued to the Recovery Officer in terms of the final order.

13. 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 6^th day of February, 2017]


(PRESIDING OFFICER)

TA 566/2016 (OA 99/2015)6**A P P E N D I X**Witness for Applicant:

AW1: Nidheesh.P.N, 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>09.07.2010</td> <td>Copy of the sanction letter issued to the defendant by the applicant bank.</td> </tr> <tr> <td>A2</td> <td>30.07.2010</td> <td>Demand promissory notice for Rs.13.68 lakhs executed by the defendant in favour of the applicant bank.</td> </tr> <tr> <td>A3</td> <td>30.07.2010</td> <td>Letter executed by the defendant in favour of the applicant bank.</td> </tr> <tr> <td>A4</td> <td>30.07.2010</td> <td>Consolidated agreement executed by the defendant in favour of the applicant bank.</td> </tr> <tr> <td>A5</td> <td>30.07.2010</td> <td>Hypothecation-cum-loan agreement executed by the defendant in favour of the applicant bank.</td> </tr> <tr> <td>A6</td> <td>23.03.2012</td> <td>Acknowledgment of debt/securities executed by the defendant acknowledging the liability under the term loan account.</td> </tr> <tr> <td>A7</td> <td>30.07.2010</td> <td>Demand promissory notice for Rs.2.58 lakhs executed by the defendant in favour of the applicant bank.</td> </tr> <tr> <td>A8</td> <td>30.07.2010</td> <td>Consolidated agreement in respect of the cash credit facility executed by the defendant in favour of the applicant bank.</td> </tr> <tr> <td>A9</td> <td>30.07.2010</td> <td>Hypothecation-cum-loan agreement executed by the defendant in favour of the applicant bank.</td> </tr> <tr> <td>A10</td> <td>13.07.2013</td> <td>Acknowledgment of debt/securities executed by the defendant acknowledging the liability under the cash credit account.</td> </tr> <tr> <td>A11</td> <td>28.02.2015</td> <td>Certified copy of the statement of account relating to the term loan.</td> </tr> <tr> <td>A12</td> <td>...</td> <td>Statement showing the unapplied interest under the term loan account.</td> </tr> <tr> <td>A13</td> <td>28.02.2015</td> <td>Certified copy of the statement of account relating to the cash credit limit.</td> </tr> <tr> <td>A14</td> <td>...</td> <td>Statement showing the unapplied interest under the cash credit account.</td> </tr> </tbody> </table>

Defendant's Exhibits - Nil 

ER)

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A SCHEDULE

Description of machineries hypotheated

- Offset Printing Machine

- Monograph

- Paper Cutting Machine

- Wire stitching machine

- Perforating Machine

- Miscellaneous equipment

- Desk & other Furniture Items

A blank rectangular box, likely a placeholder for a stamp or signature, is positioned in the lower-middle section of the page. It is oriented slightly to the right.

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

Dated this the 6^th day of February, 2017

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

T.A No.566/2016 (O.A No.99/2015)

**Between**

Bank of India ...Applicant

**And**

Jojimol George ...Defendant

**FINAL ORDER**