KARNATAKA BANK LIMITED vs SRI THARUNIKA ENTERPRISES 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 defendants’ seeking issuance of a Recovery Certificate for recovery of a sum of Rs.4,05,34,121/- together with interest at the rate of 11.40% per annum with monthly rests from 25.01.2022 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 overdraft facility availed by the defendants from the Applicant Bank.

3. It is the case of the applicant that the defendants approached the applicant bank for grant of an overdraft facility for meeting the Working Capital requirements of the 1st defendant engaged in wholesale trading of craft paper rolls and in manufacture of corrugated boxes and considering the said request the applicant sanctioned overdraft facility of Rs.2,25,00,000/- to the defendants vide sanction intimation dated 23.06.2016. It is stated that the defendants executed the loan documents on 24.06.2016.

4. It is also the case of the applicant that the 2nd defendant deposited the title deeds of the properties more fully described in the schedule to the OA with an intention to create equitable mortgage over the same and confirmed the same by executing Memorandum of Deposit of Title deeds dated 24.06.2016 registered as Doc. No.3239/2016 on the file of SRO, Arakonam.

5. 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 31.07.2018. It is stated that despite repeated requests the defendants did not come forward to clear the outstanding dues and hence the applicant issued the demand notice under

Section 13(2) of the SARFAESI Act on 19.09.2018 followed by a Possession Notice on 18.02.2019. It is stated that based on the request letter of the 1st defendant dated 29.11.2019, the applicant sold some of the mortgage properties and realized a sum of Rs.51,00,000/- which was duly credited to the loan account. It is also stated that the defendants had executed acknowledgement of debt and liability on 05.02.2019.

6. 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.

7. Summons were taken out to the defendants and the summons to 1st defendant returned with endorsement “No such person” and summons to defendants 2 & 3 returned as “Unclaimed” and hence service was completed by substituted service by causing paper publication. As there was no representation on behalf of the defendant continuously and on 25.01.2023, 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 26.04.2023, however, Exhibits A-13 and A-15 were marked subject to proof and relevancy. The Ld. Counsel for Applicant Bank made his submissions on 08.06.2023 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 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.

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 loan facility availed by the defendant is a Cash Credit Facility to meet out the Working Capital requirements 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.

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.452 of 2023 stands allowed.

(b) Applicant is permitted to realize an aggregate sum of Rs.4,05,34,121 from the defendants jointly and severally together with interest at the rate of 10% per annum (simple), from 25.01.2022 till date of realization after deducting all the amounts received by them during the pendency of OA, and also by selling the schedule mentioned properties 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 defendants 2 and 3 are 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.

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