CANARA BANK vs P. S. Suresh on 31 August 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 defendant seeking issuance of a Recovery Certificate for recovery of an aggregate sum of Rs.13,72,896.52p comprising of a sum of Rs.3,88,421.62p together with interest at the rate of 12.75% per annum with monthly rests being the amount due under Commercial Vehicle Loan A/c No.60147910002191, a sum of Rs.1,03,583.44p together with further interest at the rate of 10.75% per annum with monthly rests being the amount due under Damage of

Commercial Vehicle due to Flood Loan A/c No.60147910002191 and a sum of Rs.8,80,891.46p together with interest at the rate of 10.75% per annum with monthly rests being the amount due under Commercial Vehicle Loan Account No.60147910002368 from the date of filing of this application till the date of realisation along with costs of the application and for sale of schedule properties.

2. The subject matter of the case is the various credit facilities availed by the defendant from the erstwhile Syndicate Bank.

3. It is the case of the applicant that the defendant claiming to be engaged in the business of transport service and allied activities approached the erstwhile Syndicate Bank in the year 2015-2016 for grant of Commercial Vehicle Loan vide loan application dated 13.03.2015 and the erstwhile Syndicate Bank considering the said request sanctioned a loan of Rs.6,63,000/- vide sanction dated 20.03.2015 and the defendant purchased Swift Dzire Tour, Diesel BS IV bearing Registration No.TN-18 AC-3827 and the defendant executed various loan and security documents on 20.03.2015.

4. It is also the case of the applicant that at the request of the defendants vide Loan Application dated 04.01.2016, the erstwhile Syndicate Bank sanctioned Flood Loan towards damage of commercial vehicle for a sum of Rs.90,000/- and to secure the same the defendant executed the loan and security documents on 20.01.2016.

5. It is the further case of the applicant that at the request of the defendant vide loan application dated 25.01.2016 and the erstwhile Syndicate Bank considering the said request again sanctioned a loan of Rs.6,62,000/- vide sanction dated 08.02.2016 and the defendant purchased Swift Dzire Tour, Diesel BS IV bearing Registration No.TN-18 AC-9703 and the defendant executed various loan and security documents on 08.02.2016.

6. It is also the case of the applicant that the defendants violated the terms and conditions of sanction and committed default in repayments and failed to regularize the loan accounts despite repeated request and hence the loan account was classified as NPA on 31.10.2016. It is stated that the one of the hypothecated vehicle bearing Registration No.TN-18 AC-9703 was seized in the month of November 2018 and was sold in public auction and the applicant realized a sum of Rs.2,00,000/- on 03.12.2018. It is stated that despite repeated requests the defendants did not come forward to clear the outstanding dues.

7. It is the case of the applicant that after availing the loan, the defendant was 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.

8. Summons taken out to the defendant was served. As there was no representation on behalf of the defendant continuously and on 02.08.2019, the defendant was called absent and set ex-parte on that day. Applicant Bank filed Proof Affidavit along with 11 documents, which were marked as Ex. A-1 to A-11 on 09.06.2023. The Ld. Counsel for Applicant Bank made his submissions on 03.07.2023 and thereafter the matter stood till this date for passing final orders.

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

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

These issues are considered together.

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

11. The evidence of the applicant is led by AW1 who produced the documents Exhibit A-1 to A-11 along with the proof affidavit. The documents produced in evidence are all found admissible. The proof affidavit of the applicant bank remained unchallenged and rebutted. 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 defendant. 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.

12. 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.

13. In view of the fact that the loan facility availed by the defendant is a Commercial Vehicle Loan and the applicant has claimed interest at contractual rate till the date of filing of the OA, this Tribunal is of the view that the pendente lite interest can be awarded at reduced rates.

14. 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.646 of 2022 stands allowed.

(b) Applicant is permitted to realize an aggregate sum of Rs.13,72,896.52p from the defendant together with interest at the rate of 10% per annum (simple), from the date of filing of the OA till date of realization after deducting all the amounts received by them during the pendency of OA, and also by selling the available hypotheca and other assets of the defendant.

(c) If the sale proceeds are not found sufficient to cover the amount due and payable to the Applicant Bank, the defendant is personally liable for all such amounts due as ordered above.

(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.

15. 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 August, 2023) Sd/- (T. RAJESH) PRESIDING OFFICER DRT-II, CHENNAI