INDIAN BANK vs S Deepa on 29 December 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 for recovery of a sum of

Rs.31,21,948/- together with interest at the rate of 16.95% per annum with monthly rests from the date of filing of the OA till the date of realization in full along with costs of this application and also by proceeding against the schedule mentioned property.

2. The above Original Application is filed before DRT-I Chennai and stood transferred to this Tribunal and renumbered as above.

3. The case of the applicant can be encapsulated as follows: - The 1st defendant approached the applicant for grant of credit facility for the purpose of its business and considering the said request the applicant vide sanction dated 8.12.2014 sanctioned Cash Credit Facility of Rs.20,00,000/- to the 1st defendant. The 2nd defendant executed guarantee agreement on 10.12.2014 thereby guaranteeing due repayment of credit facility availed by the 1st defendant. The 1st defendant executed necessary loan and security documents on 10.12.2014. The 3rd defendant deposited the original title deeds of the property more fully described in Schedule ‘A’ to the OA with the applicant on 5.2.2015 with an intention to create equitable mortgage over the same and confirmed the same by executing Memorandum of Deposit of Title deeds dated 3.3.2015 registered as Doc. No.2289 of 2015, SRO, Selaiyur.

It is stated that the 1st defendant and 24 other borrowers had availed OCC facilities during October 2014 to January 2015 for Working Capital requirement for their business, however, it was later found that no such business / trading activity existed and the amounts were siphoned by the defendants through 3rd

defendant who introduced all these borrowers and fraudulently got the facilities sanctioned. Applicant lodged a complaint dated 13.6.2015 to CBI in respect of all the 25 loan accounts.

4. It is further stated that even though the defendant had obliged to repay the amount promptly and regularly, they failed to do so resulting in default in repayment.

5. It is contended by the applicant that the applicant’s officials had on many occasions approached the defendants requesting them to regularize the account and despite the same no effort was made by the defendants to get the account regularized or to pay back the amount

6. It is also the case of the applicant that despite repeated reminders and requests the defendant failed to make the repayment forcing the applicant to file this OA seeking recovery of the amount due in the account with further interest and costs.

7. The defendants remained absent and hence were called absent and set ex-parte on 16.07.2019.

8. The applicant had let in evidence through AW-1, who had sworn to a Proof Affidavit in terms of the pleading in the OA and also produced Exhibits A-1 to A-13. Despite all the documents being photocopies from their respective originals the same were marked in view of the affidavit filed by the applicant stating that the original documents are in the custody of CBI.

9. Heard the Ld. Counsel for the Applicant and considered the contentions as taken in the OA in the light of documentary evidence and proof affidavit.

10. The following issues arise for consideration in this matter: -

(i) Whether the applicant had succeeded in proving the OA claim as against the defendants?

(ii) What orders are to be passed?

Both these issues are gone into and decided together.

11. The case put forth by the applicant in the Application remains unrebutted as defendants remained ex-parte. The evidence tendered by the applicant remains uncontroverted and undisputed. Though the applicant was relying on Exhibit A- 13, claiming to be a letter of the applicant to the Inspector of Police, Central Bureau of Investigation, with the acknowledgement from CBI for having received the original documents, the name of the borrower company does not find place in it. However, from Exhibit A-11 it can be seen that the applicant had given a complaint in respect of 25 borrowers alleging fraud, the name of the borrower finds place at S. No.17 in Ex. A-11and hence the evidences put forth by the applicant were accepted and found admissible, though Ex. A-13 does not come in aid of applicant. From the statement of accounts as produced by the applicant, it is evident that the amount as claimed in the OA is outstanding in the account, which the applicant is entitled to get recovered from the defendants and

their assets. The claim of the applicant is well within the period of limitation and there is no capitalization of penal interest.

12. In view of the fact that the instant loan availed by the defendants is a fraudulent one as alleged by the applicant, and proved by evidence, this Tribunal is not inclined to interfere with the interest rate claimed by the applicant.

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, TA is disposed off in the following manner: - (a) TA No.460 of 2022 stands allowed.

(b) Applicant is permitted to realize a sum of Rs.31,21,948/- with future and pendentelite interest @16.95% p.a., with monthly rests from the defendants jointly and severally, from the date of filing of the OA till realization, after deducting all the amounts received or recovered by them during the pendency of OA, and also by selling the schedule properties and other assets of the defendants.

(c) If the sale proceeds are not found sufficient to cover the amount due and payable to the Applicant Bank, the defendants are personally liable for all such amounts due under the Loan Accounts.

(d) Applicant is permitted to realize cost of the proceedings and shall file cost memo within 7 days from the date 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 29th day of December, 2023) Sd/- (T. RAJESH) PRESIDING OFFICER DRT-II, CHENNAI