BANK OF INDIA vs UMESH S/o Shankargouda Late Sri Bhimarav S/o Shankarrav Desai Since demised rep by his Legal heirs on 29 February 2020

**FINAL ORDER**

The present Original Application (OA) is filed by the Applicant Bank under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993, seeking recovery of money of **Rs.15,04,234/- (Rupees fifteen lakhs four thousand two hundred thirty-four only)** besides future interest etc., with DRT-I Bengaluru and numbered as O.A. No. 1548 of 2015. Thereafter in view of the jurisdiction the application was transferred to DRT-II and registered as T.A.No.2061 of 2017.

2. The applicant bank states that the Defendant No.1 along with Defendant No.5 and one Late. Sri.Bhimarav Shankargouda alias Shankarrav Desai approached the applicant bank for ATL Facility for agricultural purpose. Accordingly, the Applicant Bank sanctioned ATL of Rs.7.70 Lakhs. Subsequently, the Applicant bank came to know the demise of Sri.Bhimarav 3T.A. NO.2061/2017

Shankargouda alias Shankarrav Desai and hence brought Defendant No.2 to 4 as the surviving legal heirs of the said demised Sri.Bhimarav Shankargouda alias Shankarrav Desai. Defendant No.6 is the guarantor for the above facility.

3. The Defendants executed necessary documents such as Loan Agreement, Demand Promissory Note, Agreement for Term Loan and Hypothecation Agreement, Guarantee Deed, Mortgage Deed etc.

4. The ATL Facility was to be repaid in 7 equal annual instalments of Rs.1.10 Lakhs beside interest at 1.25% above Bank's PLR i.e 13.25% P.A at the time of sanction.

5. The Defendants agreed to pay interest with variable rate of interest as applicable from time to time as per the directions of the Head Office/Central Office of the Applicant Bank and penal interest in case of default and keep the account regular by paying instalments as and when due to the satisfaction of the Applicant Bank as detailed in the TA by the Applicant Bank.

6. The Applicant Bank submits that after utilizing the entire loan facility proceeds for the above said purpose the Defendants failed to make the repayments of the same as agreed and they 4T.A. NO.2061/2017

have not serviced the interest thereon as per the terms and conditions agreed. The Defendants became chronic defaulters in the loan accounts and hence the account became NPA.

7. In the light of these factors, it is contended by the Applicant Bank that, Defendants are jointly & severally liable to pay a sum of **Rs.15,04,234/- (Rupees fifteen lakhs four thousand two hundred thirty-four only)**.

8. During the pendency of TA, summons were sent through RPAD to all the Defendants and the same was served on Defendant No.5 and 6. The summons sent to Defendant No. 1, 2 and 4 was returned with a postal shara "Refused" which is deemed to be served. Summons sent to Defendant No. 3 was returned with a postal shara "Not in the address". Thereafter summons was served to Defendant No.3 through paper publication. When defendants were called out, they remained absent. Hence, placed exparte.

9. To prove the case of the Applicant Bank, it's Branch Manager - Mr.Alok Ranjan, has filed his affidavit by way of evidence and same was considered as evidence of AW-1 and 5T.A. NO.2061/2017

marked as Ex.A1 and list of documents came to be marked as Ex.A2 and 10 documents came to be marked as Ex.A3 to Ex.A12.

10. No evidence on behalf of the Defendants.

11. Arguments of Learned Counsel for the Plaintiff / applicant bank heard and perused the records of the case.

12. Following points arise for my consideration:

- a) Whether Plaintiff/applicant bank proves its case as contended in the plaint/application?

- b) What order?

13. For the following reasons, I answer the above referred points in the following manner:

**REASONS**

14. The Branch Manager of the Applicant Bank came to be examined as AW-1. His affidavit by way of evidence reiterates the facts pleaded in the plaint and his affidavit is also corroborated by the above referred Ex. A3 to Ex. A12 which clearly establish the case of the Applicant Bank to allow the present TA. Added to this the Defendants have remained absent which indicates 6T.A. NO.2061/2017

that the Defendants have no objection to allow the present TA so also admit the claim made by the Applicant Bank against the Defendants.

15. Therefore, for these reasons, present TA is to be allowed with costs as sought by the applicant bank.

**ORDER**

Present TA stands allowed as prayed for with interest and costs.

In the event of failure of Defendants to pay the said OA amount, the Applicant Bank is at liberty to sell the Hypothecated Tractor and Trailer and Mortgaged immovable properties as described in Schedule A and B - Item No.1 and 2 of the main petition according to law as sought by the Applicant Bank in the T.A.

Inspite of sale of the Hypothecated and Mortgaged Immoveable schedule properties, if the claim amount with up to date interest, charges etc., is not fully realized described in the Schedule A and B is not fully realized, then the Applicant Bank is at liberty to proceed against the person and other properties of 7T.A. NO.2061/2017

Defendant No.1, 5 and 6 or from sale of inherited properties of Defendant No.2 to 4, out of assets inherited from demised borrower Sri. Bhimarav S/o. Shankarrav Desai, as required under law and also as advised.

Applicant Bank shall file fresh Memo of calculation of TA amount together with interest, costs etc., to be paid by Defendants duly considering the amount/s if any paid by the Defendants and/or amount realized by sale of assets, etc., during the intervening period after filing the TA, to enable the office to prepare Recovery Certificate for the amount to be paid by the Defendants to the Applicant Bank.

Office is directed to issue the Recovery certificate.

(Dictated to the Stenographer, after transcription and necessary corrections, signed and pronounced by me in the Open Court on this the 29^th day of February, 2020)

**(K. Ravindran Nair)** **Presiding Officer** **I/c -DRT II, Bengaluru**

8T.A. NO.2061/2017**ANNEXURES****LIST OF WITNESSES EXAMINED ON BEHALF OF APPLICANT BANK:**

AW.1 – Sri. Alok Ranjan, Branch Manager of the Applicant bank

**LIST OF DOCUMENTS MARKED ON BEHALF OF APPLICANT BANK:**

Ex. A1	:	Affidavit of AW.1
Ex. A2	:	List of documents
Ex. A3 – A12	:	10 documents

**LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:**

- NIL -

**LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:**

-NIL-

**(K Ravindran Nair) Presiding Officer I/c-DRT-II, Bengaluru**

\*SR