Union Bank of India, vs R.Kudiyarasu (Since deceased). on 29 December 2023

ORDER

1. The above Transfer Application is filed under section 19 of the Recovery of Debts and Bankruptcy Act seeking recovery of Rs.17,03,620/- with further interest from the date of filing of the TA and by allowing the same to be recovered from the borrower who was the 1st defendant and also by sale of the schedule mentioned properties.

2. The above original application is filed before the DRT-III and stood transferred to DRT-I and again to this Tribunal and renumbered as above.

3. The case of the applicant can be encapsulated as follows:

The 1st defendant approached the applicant and availed a Term Loan of Rs.6,40,000/- for the purchase of tractor for cultivation.

4. It is also stated that the above facility was availed after execution of necessary loan documents by defendant obliging himself to repay the amount promptly and regularly, without fail.

5. Apart from execution of the necessary loan documents, the defendant had created security by way of equitable mortgage over the schedule mentioned properties. Over and above the same, a hypothecation over the tractor was marked as being the security for repayment of the loan.

6. Even though the defendant had obliged himself to repay the amount promptly and regularly, he failed to do so resulting defaults in the account and the same being declared as NPA on 26.02.2010.

7. The applicant’s officials had on many occasions approached the defendant requesting him to regularize the account and despite the same no effort was made by the defendant to get the account regularized over to pay back the amount. Even as no repayment was made despite repeated requests the applicant had on 27.02.2018 caused to issue a lawyer notice requiring repayment of the amount due in the account.

8. It is also the case of the applicant that despite repeated reminders and requests, the defendant had failed to make the repayment forcing the applicant to file this TA seeking recovery of the amount due in the account with further interest and cost.

9. As the notice issued to the 1st defendant returned stating that the 1st defendant expired, defendants 2 to 5 were impleaded as additional defendants. The 3rd defendant filed his reply statement and defendants 2, 4 and 5 filed a memo adopting the reply statement of 3rd defendant. In the reply statement the defendants had contended that the bank had debited more interest than what had been agreed upon. The defendants also disputed the quantum of due amount as claimed in the TA.

10. The applicant had let in evidence through AW1 who had sworn to a Proof Affidavit in terms of the pleadings in the TA and also produced Exhibits A1 to A14 and got the same marked as evidence. No defense evidence was let in as despite granting opportunity no counter proof affidavit is filed by the defendants.

11. Heard the counsel for the applicant. Despite posting the case for hearing the defendants counsel does not enter appearance. Considered the contentions as taken in the TA in the light of documentary evidence and proof affidavit. The following issues arise for consideration in this matter: i) Whether the applicant had succeeded in proving the TA claim? ii) What orders are to be passed? Both these issues are gone into and decided together.

12. The case put forth by the applicant in the Application remains unrebutted as no defense evidence was adduced. The evidence tendered by the applicant remains uncontroverted and undisputed. The evidences put forth by the applicant were found admissible. From the statement of accounts as produced by the applicant, it is evident that the amount as claimed in the TA is outstanding in the account, which the applicant is entitled to get recovered from the defendants and their assets (including the schedule mentioned property). The claim of the applicant is well within the period of limitation and there is no Capitalization of penal interest. Since the credit facility is purely agricultural, pendentelite and future interest is awarded at simple.

13. In view of the finding as entered above i) TA No.387/2022 stands allowed.

ii) Applicant is permitted to recover an amount of Rs.17,03,620/- (Rupees Seventeen Lakhs Three Thousand Six Hundred Twenty only) with future and pendentelite interest @13.25% p.a. (simple) from the date of filing of the TA till realization from the defendants 2 to 5 to the extent of properties they inherited from the 1st defendant after giving credit to all the amounts recovered and received during the pendency of the TA. iii) The schedule property to be proceeded against and sold and if the sale proceeds are not sufficient the other assets inherited by defendants 2 to 5 from the 1st defendant are liable to be proceed against. iv) A Recovery Certificate is to be drawn and issued to the recovery officer to enable recovery of the amount as per the above terms. v) Applicant is allowed to realize cost of the proceedings for which cost memo is to be filed in 7 days’ time from the date of receipt of the copy of the 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 PA, transcribed by him, corrected, signed and pronounced by me in the Open Court, this 29th day of December, 2023)

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