HDFC BANK vs Devi on 31 December 2021

ORDER

1. This application is filed by the applicant bank under Section 19(1) of Recovery of Debts due and Bankruptcy Act, 1993 (formerly Recovery of Debts Due to Banks and Financial Institutions Act, 1993) to issue a recovery certificate for a total sum of Rs.23,78,864.36p due as on 20.2.2019 under Light Commercial Vehicle loans consisting of a sum of Rs.11,85,183.74p due under loan account No.50779134 and a sum of Rs.11,93,680.62p due under Loan account No.50779615 together with interest thereon @9.01% p.a. and all other applicable overdue charges against the defendants jointly and severally from 20.2.2019 till the date of realization in full and sale of the schedule properties along with costs of this application.

2. The facts of the case as stated in the OA, in brief, are as follows:- The defendants approached the Applicant Bank seeking for a Light Commercial Vehicle Loan and the applicant after considering the same sanctioned the said loan facility to the tune of Rs.14,65,000/- under Loan Account Number 50779134. The Defendants have agreed to the terms and conditions of the loan facility and executed the loan agreement dated 25.9.2017. The defendants also executed other necessary loan documents to secure the above said loan. It is further submitted that as per the stipulated terms and conditions of the said loan agreement, the defendants were bound to repay the aforementioned loan amount along with interest at 9.01% per annum in 48 equated monthly instalments of Rs.36,464/- each, which would commence from 1.11.2017 and end at 1.10.2021. The defendants availed the said loan and purchased the

commercial vehicle morefully described in the schedule of properties and duly hypothecated the same in favour of the applicant bank.

3. It is further submitted that the defendants again approached the applicant bank seeking another loan to purchase a Light Commercial Vehicle and the applicant after considering the same, sanctioned the said loan facility to the tune of Rs.14,65,000/- under Loan Account Number 50779615. The Defendants have agreed to the terms and conditions of the loan facility and executed the loan agreement dated 25.9.2017. The defendants also executed other necessary loan documents to secure the above said loan. It is further submitted that as per the stipulated terms and conditions of the said loan agreement, the defendants were bound to repay the aforementioned loan amount along with interest at 9.01% per annum in 48 equated monthly instalments of Rs.36,464/- each, which would commence from 15.11.2017 and end at 15.10.2021. The defendants availed the said loan and purchased the commercial vehicle morefully described in the schedule of properties and duly hypothecated the same in favour of the applicant bank.

4. It is further submitted that the defendants failed to adhere to the terms and conditions of the loan agreement and defaulted in paying the legitimate dues on the respective dates. Hence, the applicant bank issued a legal notice dated 25.2.2019 demanding a sum of Rs.11,85,183.74p due as on 20.2.2019 under loan account No50779134 and a sum of Rs.11,93,680.62p due as on 20.2.2019 under loan account No.50779615, along with interest

with effect from the date of the said notice, till realization. Since the said legal notice did not evoke any response from the defendants the present OA before this Tribunal.

5. Summons were taken out to the defendants and the summons were duly served. As there was no representation for the defendants on 21.6.2019, service was held sufficient and the defendants were called absent and set exparte. The Ld. Counsel for Applicant Bank filed proof affidavit and Exhibits A1 to A21 were marked and thereafter the applicant counsel made his submissions on 21.12.2021 and thereafter the matter stood to this date for passing final orders.

6. 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.

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

8. The evidence of the applicant is led by AW1 who has produced the documents Exhibit A1 to A21 along with the proof affidavit. Exhibit A-1 is the certified copy of the Power of Attorney dated 30.7.2018. Ex.A2 is the original Loan Application Form dated 6.9.2017 for the loan account No.50779134. Ex.A3 is the Loan Agreement cum Key Fact Statement dated

25.9.2017 in respect of loan account No.50779134. Ex.A4 is the original Customer SI Debit Authorisation Form towards the loan account No.50779134. Ex.A5 is the original Irrevocable Power of Attorney dated 25.9.2017 for the loan account No.50779134. Ex.A6 is the original Priority Sector Advance Declaration by Customer availing loan towards the loan account No.50779134 dated 25.9.2017. Ex.A7 is the Original Forex Un-hedged Exposure Letter dated 25.9.2017 for the loan account No.25.9.2017. Ex.A8 is the original proforma invoice of TVS Sundaram Iyengar and Sons Private Limited towards the loan account No.50779134 dated 26.9.2017. Ex.A8. Ex.A9 is the loan application form towards the loan account No.50779615 dated 6.9.2017. Ex.A10 is the original Loan Agreement towards the loan account No.50779615 dated 25.9.2017. Ex.A11 is the original Customer SI Debt Authorisation form towards the loan account No.50779615 dated 25.9.2017. Ex.A12 is the original Irrevocable Power of Attorney towards the loan account No.50779615 dated 25.9.2017. Ex.A13 is the original Priority Section Advance Declaration by Customer Availing loan towards the loan accountNo.50779615 dated 25.9.2017. Ex.A14 is the original Forex Un-hedged Exposure Letter towards the loan account No.50779615 dated 25.9.2017. Ex.A15 is the original proforma invoice of TVS Sundaram Iyengar and Sons Private Limited towards the loan account No.50779615 dated 26.9.2017. Ex.A16 is the original legal notice dated 25.2.2019. Ex.A17 is original the proof of service of the legal notice in the case of 1st defendant with respect to the address Door No.9, Anandapuram Road, Ariyur, Pondy Villupuram Main Road, Pondicherry 605 102. Ex.A18 is the proof of service of the legal notice in the case of 1st defendant with respect to the address Sri Krishna Transports, Door No.9, Poothurai Road, Hari Namo Nagar, near Truck Terminal, Gorimedu, Pondicherry 605006. Ex.A19 is the original proof of service of the legal notice with respect to

2nd defendant dated 28.2.2019. Ex.A20 is the statement of accounts duly certified towards the loan account No.50779134 dated 20.2.2019. Ex.A21 is the statement of accounts as duly certified in regard to the loan account No.50779615 dated 20.2.2019.

9. The proof affidavit of the applicant bank remained unchallenged and unrebutted. Therefore, on a careful consideration of proof affidavit along with Exhibits filed on behalf of the applicant bank, besides the material placed before the Tribunal, this Tribunal is satisfied that the applicant bank has successfully proved the OA claim against the defendants. Point is answered accordingly.

10. 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) OA No.199 of 2019 stands allowed.

(b) Applicant is permitted to realize a total sum of Rs.23,78,864.36p due as on 20.2.2019 under Light Commercial Vehicle loans consisting of a sum of Rs.11,85,183.74p due under loan account No.50779134 and a sum of Rs.11,93,680.62p due under loan account no.50779615 together with interest thereon @9.01% p.a. (simple) against the defendants jointly and severally from 21.2.2019 till the date of realization in full, after deducting the amounts received or realised under SARFAESI Act or otherwise during the pendency of OA, from

the defendants, and also by selling the schedule mentioned 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.

(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.

11. 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 Steno(SN), transcribed by him, corrected, signed and pronounced by me in Virtual Court, through Video Conference on this 31st day of December, 2021)

Sd/-

(T. RAJESH)

PRESIDING OFFICER

(i/c) DRT-I, CHENNAI