KARNATAKA VIKAS GRAMEENA BANK vs Nishant Uttam Lohar on 29 March 2021

1. 1) Mr. Nishanth UttamLohar S/o Sri UttamLohar

2. 2) Smt.Sadhana Nishanth Lohar W/o Sri Nishanth UttamLohar

Both are residing at: CTS No.2119/A-2, Ananda complex, Bhatkande Galli Belgaum-590001

Also residing at: CTS No.4171, 5^th cross Bhagyanagar Angol Belgaum-590006

1. 3) Mr.Vinayak Subhash Anandache S/o. Sri Subhash Anandache Residing At No.116, Mathgalli, Hosur, Shahpur, Belgaum-59003

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4) Mr. Shri Lohar S/o Prakash Ananda Lohar, Residing at: CTS No.2119/A-2, Ananda complex, Bhatkande Galli Belgaum-590001

5) Mr. Sanjay Parasharam Somanache S/o Sri Parasharam Somanche Residing at: No.139/2, Jeregalli Angol, Belgaum-590006

**...RESPONDENT**

**Counsels on record/appeared for:**

Applicant : Shri M.Mohan Rao Respondent :

**::ORDER ON MA.10/2021::**

The Misc. Application is filed by the bank seeking for an amendment of the Name of defendant 4 Sri. Lohar in the cause title and to also name of the defendant 4 in the Recovery certificate on 8/1/2020.

1) It is the case of the applicant that they filed OA.850/18 against Respondent No.1 to 5 for Recovery of sum of Rs.40,84,853/- jointly, severally to pay t the Appellant Bank a sum of Rs.40,84,853/- together with current and future Interest thereon at the rate of 16.5% per annum. The respondents No.1 to 4 are borrowers and guarantors for executed of loan documents had availed loan of Rs.25,00,000/- on 05.01.2013.

2) The Respondent 1 & 2 are the mortgager property who has created security towards the credit facility and executed memorandum of title deeds on 7/1/2013.

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3) As the defendants remained exparte, bank adduced the evidence and the OA came to be allowed. Accordingly, the Recovery Certificate also came to be issued.

4) It is submitted that the name of 4^th Respondent Mr. Shri Lohar who name is Mr. Prakash Lohar S/o Sri Lohar is mentioned in the OA as Mr. Shri Lohar, which is also continued and mentioned as Mr. Prakash Lohar even in the Recovery Certificate which is due to typographically error.

5) In order to incorporate the correct name of the 4^th respondent, the bank has produced Pan Card (Pan No. AGHPL1462E and Election Voter ID: RTD 1237882) of Respondent No. 4 which clearly mentions the correct name. Hence, the application for amendment of cause title to incorporate the correct name of Respondent No. 4 in the OA as well as in RC. Further as there is delay in filing the MA, IA.663/2021 a petition to condone delay of 579 days is also filed.

6) In the affidavit along with the delay application it is submitted that the mistake occurred due to over sight in not mentioned the correct name of 4^th Defendant and bank came to know of while issuing the demand notice in order to Recovery debt. Hence, prayers for Condone of delay in the instant matter.

7) Heard and perusal the records.

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8) It is evident that the bank has wrongly mentioned the name of 4th Respondent as Shri Prakash Lohar instead as Shri. Lohar S/o Prakash Anand Lohar and the mistake came to the knowledge of the bank only when demand notice is issued.

9) It is apt to mention that the bank after obtaining final Order of the OA on 15.06.2019 had not bothered to check the OA final order and Recovery Certificate. The mistaken is carried from the day of filing the OA till the issuance of Recovery Certificate, resultantly there occurred a 579 delay in preferring Misc. Application.

10) Though the bank has come out with the Misc. Application to carry out the amendment in the cause title putting it up as typographically error shows the casual attitude of the officer of the bank. The applicant bank being the Financial Institution ought to be carefully in claiming the Recovery amount from the right persons. Furthermore, the delay of 579 days is unimaginable and the bank has not come out with any justified reason for mentioning 4^th Respondent name wrongly.

11) The Tribunal under the statute is not empowered to condone the delay and the bank has not made out a case firstly for condonation of delay, secondly mentioning the name of the 4^th respondent wrongly and has obtained a final order and recovery certificate from this Tribunal fraudulently.

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12) The applicant being a financial institution is duty bound to recover the amount due from the borrower and in the instant matter the typographical error in mentioning the name of the 4^th respondent is highly depreciated and on account of the mistake of the advocate and the bank official, the financial institution should not incur loss.

13) For the foregoing reason, the present MA 10/2021 is allowed with the cost of Rs.5000/- to be paid to the loan account of the borrower before proceeding further in the recovery proceedings. It is made clear that in case if the applicant fails to pay the cost of Rs.5000/- to the loan account of the borrower on or before 12^th April, 2021, MA would automatically stands dismissed without any further order.

14) Registry is directed to send the copy of this Order to the Recovery Officer for ensuring due compliance of payment of cost and the applicant bank shall not initiate or proceed under the any law for the recovery of the OA claim without compliance of payment of cost.

*(Dictated to the Stenographer (BL), after its transcription and necessary corrections, signed and pronounced by me in the Open Court on this day 29^th March 2021)*

**(Sd/-)** **PRESIDING OFFICER** **DRT-2, BENGALURU.**