Bank of Baroda vs K.Kavitha on 29 December 2023

ORDER

1. The above Transfer Application is filed under section 19 of the Recovery of Debt and Bankruptcy Act seeking recovery of Rs.52,07,769/- with further interest from the date of filing of the TA and also by allowing the same to be recovered from the defendants jointly and severally and also by sale of schedule mentioned properties.

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

3. The case of the applicant that the first defendant availed a gold loan for Rs.5,00,000/-. Later as the gold were found to be spurious, the beneficiaries 8th to 15th defendants had created equitable mortgage over ‘A’ schedule properties.

4. It is also stated that the 2nd defendant had also availed a gold loan for Rs.5,00,000/- where is also the spurious jewels were pledged, 8th to 15th defendants had mortgaged ‘A’ schedule properties as security.

5. Similarly 3rd defendant who availed a gold loan Rs.5,00,000/-, where is also the gold was found to be spurious, it is also stated that the defendants 8 to 15 who stood as guarantors had created mortgage of schedule ‘A’ properties.

6. It is further stated that 4th defendant also had pledged spurious gold and availed a gold loan of Rs.5,00,000/- for which also mortgage was created by defendants 8 to 15. It is also stated that the 5th, 6th and 7th defendants had also availed gold loans for Rs.5,00,000/- each by pledging spurious gold and for the said facilities also, the 8th to 15th defendants who stood as guarantors had mortgaged their ‘A’ schedule property as security.

7. It is also stated that the above facilities were availed after execution of necessary loan documents by defendants including DPN and take delivery letter obliging themselves to repay the amount promptly and regularly, without fail.

8. Even though the defendants had obliged themselves to repay the amount promptly and regularly, they failed to operate the account resulting defaults in the account and the same being declared as NPA with effect from 31.03.2015.

9. The applicant’s officials had on many occasions approached the defendants requesting them to close the account and despite the same, no effort was made by the defendants to get amount repaid. No repayment was made despite repeated request and the funds were mis- utilized. Since no payments were for the coming this TA is filed. It is also stated that criminal complaints were made in respect of spurious gold.

10. Even as the defendants failed to enter appearance, they were set exparte on 09.03.2020.

11. 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 A65 and got the same marked as evidence.

12. Heard the counsel for the applicant and 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.

13. The case put forth by the applicant in the Application remains unrebutted as defendants remain exparte. 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 properties). The claim of the applicant is well within the period of limitation and there is no Capitalization of penal interest.

14. In view of the finding as entered above i) TA No.382/2022 stands allowed. ii) Applicant is permitted realize a sum of Rs. 7,43,967/- each from defendants 1 to 7 totaling Rs. 52,07,769/- with further interest @ 15.25% p.a. from the date of filing of the TA from defendants 1 to 7 respectively and also from defendants 8 to 15 jointly and severally and by sale of schedule mentioned properties. iii) The schedule property to be proceeded against and sold and if the sale proceeds are not sufficient the defendants and their other assets are liable to be proceed against as aforementioned 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.

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 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