HDFC Bank Limited vs Ms. M. Pandiselvi on 31 July 2023

FINAL ORDER

1. This application is filed by the applicant bank under Section 19(1) of Recovery of Debts and Bankruptcy Act, 1993 against the defendants’ seeking issuance of a Recovery Certificate for recovery of a sum as detailed from the date of filing the OA till the date of realisation along with costs of the application and for sale of schedule mentioned properties: -

(i) A sum of Rs.21,99,149/- together with interest at the rate of 12% per annum with monthly rests being the amount due under Cash Credit Facility;

(ii) A sum of Rs.9,77,563/- together with interest at the rate of 13.5% per annum with monthly rests being the amount due under Loan Account No.81722671;

(iii) A sum of Rs.3,83,401/- together with interest at the rate of 13.5% per annum with monthly rests being the amount due under Loan Account No.4629609;

(iv) A sum of Rs.1,73,340/- together with interest at the rate of 12% per annum with monthly rests being the amount due under Loan Account No.4629609; and

(v) A sum of Rs.97,546/- together with interest at the rate of 13.5% per annum with monthly rests being the amount due under Loan Account No.4707142.

2. The subject matter of the case is the various credit facilities availed by the defendants from the applicant.

3. It is the case of the applicant that the defendants approached the applicant bank seeking sanction of Cash Credit Limit and Term Loan facility for agricultural purpose by submitting Loan Application dated 29.10.2015 and the applicant considering the said request sanctioned Cash Credit Limit of Rs.13,00,000/- and Term Loan of Rs.7,00,000/- vide sanction letters both dated 11.02.2016 respectively to the defendants 1 to 3 herein and the 4th defendant stood as a guarantor towards the said facilities. It is stated that the defendants executed the Loan Agreements on 12.2.2016 in respect of both the loan accounts. It is also the case of the applicant that the 1st defendant executed Memorandum of Deposit of Title deeds dated 11.2.2016 registered as Doc. No.214 of 2016 on the file of SRO, Sivagiri, Tenkasi.

4. It is also the case of the applicant that the defendants despite being financially sound and agreed to pay the entire loan amounts within the stipulated period as per the agreement defaulted in repayments. It is stated that, while so, reliefs / restructuring for repayment of loan facility in case of drought ‘ flood as well a Hailstorm was provided to the defendants as per the RBI guidelines dated 02.07.2012 to the tune of Rs.3,30,085.29p by creating fresh Term Loan Accounts.

5. It is stated that despite restructuring the defendants committed default in repayments and failed to regularize the loan accounts despite repeated request. Hence the applicant issued a legal notice on 11.12.2020 calling upon the defendant to clear the outstanding dues. It is stated that the said notice was received by all the defendants.

6. It is the case of the applicant that after availing the loan, the defendants were irregular in remitting the loan amount. The efforts of the applicant bank to make the defendant to settle the loan did not yield any result, and hence the applicant approached this Tribunal seeking issuance of a Recovery Certificate allowing recovery of the amount due in the account.

7. Summons were taken out to the defendants and the same were served on the defendants. As there was no representation on behalf of the defendants on 09.09.2022, the defendants were called absent and set ex-parte on that day. Applicant Bank filed Proof Affidavit along with 17 documents, which were marked as Ex. A-1 to A-17 on 19.04.2023. The Ld. Counsel for Applicant Bank made his submissions on 23.05.2023 and thereafter the matter stood till this date for passing final orders.

8. The following issues arise for consideration in the matter: - (a) Whether the applicant had succeeded in proving the liability of the defendants?

(b) What order as to cost of the proceedings need be passed?

These issues are considered together.

9. Heard the Ld. Counsel for the applicant, perused the OA averments and the record placed before the Tribunal.

10. The evidence of the applicant is led by AW1 who produced the documents Exhibit A-1 to A-17 along with the proof affidavit. The documents produced in evidence are all found admissible. The proof affidavit of the applicant bank remained unchallenged and unrebutted. Therefore, on careful consideration of proof affidavit along with exhibits filed on behalf of the applicant bank, besides the material placed before the Tribunal, the Tribunal is satisfied that the applicant bank has successfully proved the OA claim against the defendants. Further, the statement of accounts in respect of the loan account produced and certified under the Banker’s Book Evidence Act, clearly indicates that the amount claimed by the applicant is due from the defendants. It is clear from the statement of accounts that penal interest is not capitalized. Point is answered accordingly.

11. In view of the foregoing, it is clearly evident that the application filed by the applicant bank is well within the period of limitation and this Tribunal possesses the territorial and pecuniary jurisdiction to entertain this OA.

12. In view of the fact that the instant loan is availed by the defendants for the purpose of agriculture and the applicant has claimed interest at contractual rates till the date filing of the OA, this Tribunal is of the view that the pendent lite and future interest can be awarded at reduced rates and therefore proceeds to award interest at the rate of 8% per annum (simple).

13. In view of the afore mentioned discussions, the only conclusion this Tribunal can draw is that the applicant had clearly proved the disbursement of the loan, which the applicant is entitled to realize. Hence, OA is disposed off in the following manner: - (a) TA No.143 of 2022 stands allowed.

(b) Applicant is permitted to realize a sum of Rs.38,30,999/- with further interest at the rate of 8% per annum (simple) from the defendants jointly and severally from the date of filing of the OA till date of realization, after deducting all the amounts received and recovered by them during the pendency of TA, and also by selling the schedule mentioned properties and other assets of the defendants.

(c) It is made clear that the defendants are personally liable for all such amounts due under the said facility.

(d) Applicant is permitted to realize cost of the proceedings and shall file cost memo within 7 days from the date of receipt of the copy of the order.

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

14. 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 31st day of July, 2023) Sd/- (T. RAJESH) PRESIDING OFFICER DRT-II, CHENNAI