HDFC Bank Ltd. vs M/s. Loyal Sanitation Pvt Ltd on 28 March 2024

FINAL ORDER

1. The Application is filed Under Section 19 (1) of the Recovery of Debt And Bankruptcy Act, 1993 seeking for issuance of a Recovery Certificate for Rs. 21,49,288.40 (Rupees Twenty One Lakhs Forty Nine Thousand Two Hundred Eighty Eight and Forty paisa only) due in the Business loan availed by the defendants.

2. The above TA was originally filed before DRT-I and got transferred to this Tribunal and renumbered as above.

3. The applicant contends that the Business loan facility for Rs.25,00,000/- was availed by the 1st defendant Company represented by the 2nd and 3rd defendants. It is also stated that the borrowal was approved by the board of resolution dated 19.1.2018. It is also the case of the applicant that the defendant had obliged themselves to pay back the amount along with interest@ 14.99% per annum in 36 equal monthly installments of Rs.86,851/- commencing from 4.1.2018 and ending on 4.12.2020.

3. The Applicant further contents that despite availing the credit facility by obliging to pay back the amount, the defendant failed in compliance of the same and all the efforts of the Applicant to make the defendants pay back the amount failed forcing the Applicant to file this Application.

4. The defendant entered appearance and filed their reply statement contending inter alia that the applicant had not disbursed the entire sanctioned amount and had credited only a sum of Rs.23,35,266/- on the basis of the above contention the defendant is disputing the outstanding due as claimed by the applicant. The defendant is also having a dispute as to the rate of the interest claimed by the applicant.

5. The Applicant let in evidence through AW1, filed proof affidavit in conforming with pleading and got marked Ext A1 to A12. The 2nd defendant had filed a counter proof affidavit reiterating the contentions as taken in the reply statement and also had produced the statement of accounts of Karur Vysiya Bank which according to t the defendants evidences that only an amount of Rs.23,35,266/- is disbursed.

6. Heard, the following issues arise for consideration: - (a) Whether the Applicant had proved the TA claim?

(b) What orders are to be passed? Both these issues are decided together.

7. The applicant had filed their proof affidavit in conformity with the pleadings of the TA and had produced the loan documents evidencing application, sanction, and execution of loan documents and disbursement of the amount. The only dispute the defendant is having in regard to the above is that the entire amount is not disbursed and an amount of Rs.23,35,266/- alone was disbursed. Now the issue is whether on the basis of the above the entire statement of accounts as produced by the applicant needs to be discredited. This Tribunal on consideration of the fact that the EMI start date as per the statement of accounts is on 4.1.2018, against the disbursement on 28.11.2017 is convinced that the amount of one EMI in advance is collected by the applicant bank. Even otherwise the loan documents as produced by the applicant leads only to the finding that there is due execution of loan documents for the entire loan accounts and the defendant cannot resort to a single entry to discredit the documentary evidence available.

8. The Applicant evidence remained un-rebutted and hence proved. The documents produced by the Applicant are found to be admissible and are sufficient to prove TA claim. Hence the Applicant is to be found entitled for the TA claim. From the documents produced by the applicant, especially the schedule to the loan agreement evidences that the 2nd and 3rd defendants signed the loan document as co-borrowers and hence the defendants 2 and 3 are personally liable for the amount due in the account. The TA claim is made within limitation and there is no capitalization of penal interest. Since the TA claim is arrived at by calculating interest at contractual rate, which this Tribunal considers is at a higher rate pendente lite and future interest is awarded at 9% simple.

9. In view of the above, the following order is passed: - (a) TA No. 849 of 2023 stands allowed.

(b) Applicant is permitted to recover an amount of Rs. 21,49,288.40 (Rupees Twenty One Lakhs Forty Nine Thousand Two Hundred Eighty Eight and Forty paisa only) with future and pendente lite interest @ 9% simple per annum from the date of filing of the OA/TA till realization, after giving credit to all the amount recovered and received during the pendency of the OA/TA, from the defendants jointly, severally and personally and also by proceeding against the assets of the 1st defendant company.

(c) The defendants 2 and 3 are personally liable being the co-borrowers of the facility.

(d) A Recovery Certificate is to be drawn and issued to the recovery Officer to enable recovery of the as per the above terms.

(e) Applicant is allowed to realize cost of the proceeding for which cost memo is to be filed in 7 days’ time from the date of receipt of the copy of the order.

13. Communicate a copy of the order to the parties concerned in terms of Section 19(21)(i) of the RDB Act, read with Rule 16 of DRT (Procedure) Rules, 1993. (Dictated to PS, transcribed by him, corrected, signed and pronounced by me in Open Court on this the 28th day of March, 2024)

Sd/- (T. RAJESH) PRESIDING OFFICER DRT-II, CHENNAI