Bank of Baroda vs Late Smt Gowramma ( Rep by her LRS D1 and D2) on 19 December 2020

**IN THE DEBTS RECOVERY TRIBUNAL II, KARNATAKA AT BENGALURU**

Dated this 19^th December , 2020

**Present: SMT. S. V. GOWRAMMA Hon`ble Presiding Officer**

**TA.No.1706/2017**

**BETWEEN:**

Bank of Baroda Basavapatna Branch Hassan District Represented by its Branch Manager and PA Holder Sri. Sadashiva Achari

**...APPLICANT**

**AND:**

Late Smt.Gowramma W/o Late Javare Gowda **(Since deceased Rep by her LRS)**

**1.Sri. K.J.Nagaraja (LRs of Late Smt Gowramma)** S/o Late Javare Gowda

**2.Sri.K.J.Ananda (LRs of Late Smt Gowramma)** S/o Late Javare Gowda

**3.Sri. Krishne Gowda (Guarantor)** S/o Kari Gowda

**All are residing at** Konanur Town Konanur Hobli, Arakalagudu Taluk-573102 Hassan District.

**...DEFENDANTS**

**Counsels on record/appeared for:**

Applicant Counsel	: -	Sri.H.S.Rukkoji Rao
Defendant D1 to D2	: -	Exparte
Defendant No.3	: -	Absent

2TA NO.1706-2017**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, against the defendant, seeking recovery a sum of Rs.15,29,612/- (Rupees Fifteen lakhs twenty nine thousand six hundred twelve Only) along with contractual rate of interest from 14.07.2016 till the date of realization with costs.

**BRIEF FACTS OF THE CASE:**

2. The case of the Applicant Bank is that Smt. Gowramma who was the wife of Late Javare Gowda was the owner of land in Sy. NO.223. measuring 4 Acres 09 Guntas. The Gowramma along with her sons approached the applicant bank vide loan application dated 28.11.2005 for loan to purchase the tractor, trailer and accessories for agricultural operations. Considering their request, the bank sanctioned the loan on 28.11.2005 for an amount of Rs.5,00,000/-. However Smt Gowramma died on 20.12.2009.

3. The loan sanctioned was fully secured by executing the documents like Loan application, sanction memorandum, schedule property declaration under form-3 in favour of the applicant bank.

4. Further the Defendant agreed to repay the above loan with interest at the rate 10.50% p.a. compounded half yearly rests and 3TA NO.1706-2017

penal interest of 2% p.a. In default of repayments 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 OA by the Applicant Bank.

5. The defendants executed the guarantee letter, Agreement cum Hypothecation Deed in favour of the applicant bank.

6. The Applicant Bank further submits that the Defendants after utilizing the entire loan proceeds for the above said purpose have failed to make the repayments of the loan dues as agreed and they have not serviced the interest thereon as per the terms and conditions agreed by him. Defendants has become chronic defaulter in the loan account and the account became NPA. Thereafter, the applicant bank issued several reminders to the Defendant to repay the loan amount, but the Defendants has not repaid the same. Hence, without any alternative, the applicant bank issued Legal Notice on 24.07.2015, to the defendants through its counsel by RPAD despite the said legal notice, the defendants had failed to clear the loan liabilities due to the applicant bank, hence the present O.A.

7. In the light of these factors, it is contended by the Applicant Bank that, Defendants are liable to pay a sum of Rs.15,29,612/- (

4TA NO.1706-2017

Rupees Fifteen lakhs twenty nine thousand six hundred twelve Only) along with future interest at the rate of 15.75% p.a. compounded half yearly rests from 14/06/2016 ( inclusive of the penal interest of 2% p.a.) till the date of realization with costs and mortgaged property.

8. After filing of the OA, summons was sent to the Defendants through RPAD, Defendant No.2 has been duly served, the defendant No.3 has returned un-served with the postal shara "No such Addressee" The 1^st defendant is deceased, and 1^st and 2^nd defendants are her legal heirs who are also party to the loan transaction. Thereafter summons was taken out through paper publication in two leading dailies. When the Defendants was called out, they remained absent. Hence set Exparte on 19.12.2020.

9. To prove the case of the Applicant Bank, it's Branch Manager, Sri Manjunath Nimbilagundi S/o Sakrappa Nimbilagundi, has filed his affidavit by way of evidence and same was considered as evidence of AW-1 and marked at Ex.A1 and list of documents came to be marked as Ex.A2 and Loan Application is marked as Exh. A3 and documents came to be marked as Ex.A3 to Ex.A14.

10. No evidence on behalf of the Defendant.

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11. Arguments of Learned Counsel for the Plaintiff / applicant bank heard and perused the records of the case and the following points arise for my consideration:

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

- b) What order?

12. The evidence of the applicant bank by way of proof affidavit of its Chief Manager AW1, reiterates the facts pleaded in the OA and the affidavit is corroborated by the above referred Exhibits A3 to A14, which clearly establishes the case of the applicant bank to allow the present OA. Added to this, the defendants did not represent the case inspite of due service of summons and their absence appears to be intentional without any bonafide reasons and defendants did not contest the matter as they admitted the entire case of the applicant as sought for in the OA.

13. Even otherwise the whole case of the applicant is based on the documentary evidence and the witness has duly proved all the documents exhibited by him . It is quite evident from the documents placed on record by the applicant that defendants have availed Term loan from the applicant and failed to repay the dues of the applicant bank.

14. Having regard to the amount advanced for Business purpose, the interest applied, the conduct and operations in the account and the default committed, I am of the view that the applicant bank is entitled to get a final order on the following lines:- 6TA NO.1706-2017**:O R D E R:**

15. The OA is allowed with costs,

(a) The applicant bank is allowed to recover from defendants a sum of Rs.15,29,612/- (Rupees Fifteen lakhs twenty nine thousand six hundred twelve only) along with the future interest at the rate of 15.75% p.a. compounded half yearly rests (inclusive of the penal interest of 2% p.a ) from 14.07.2016 till the date of realization with costs and also by sale of mortgaged and hypothecated property.

(b) In the event of failure of the defendants to pay the aforesaid amount, the bank is at liberty to sell the assets of the defendant and the sale proceeds be appropriated towards the OA claim amount as required under law.

(c) The Applicant Bank shall file the latest memo of calculation of OA amount together with interest costs etc., to be paid by the defendants duly considering the amounts if any paid by the defendants or amount realized by sale of assets etc., during the intervening period after filing the OA enabling the office to prepare recovery certificate for the amount to be paid by defendants to the applicant bank.

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- (d) The applicant bank shall file memo of costs within ten days from the date of this final order.

- (e) Recovery Certificate shall be drawn up and issued to the Recovery Officer in terms of the final order.

16. The Registry is directed to communicate copy of the order to the parties concerned by speed post or registered post with AD.

*[Dictated to the VT, transcribed by her, corrected by me and then pronounced in the open court on this the 19^th December, 2020]*

Sd/- **(S.V.GOWRAMMA)** **PRESIDING OFFICER** **DRT-II, BENGALURU**

8TA NO.1706-2017**ANNEXURES****LIST OF WITNESSES EXAMINED ON BEHALF OF APPLICANT BANK:**

AW.1 – Sri. Manjunath Nimbilagundi, Branch Manager of the Applicant bank.

**Exhibits on the part of the applicant:****ANNEXURE**

<table border="1"> <thead> <tr> <th><b>Exhibit No</b></th> <th><b>Date</b></th> <th><b>Documents</b></th> </tr> </thead> <tbody> <tr> <td>A1</td> <td>11.02.2020</td> <td>Applicant Evidence by way of Affidavit</td> </tr> <tr> <td>A2</td> <td></td> <td>List of documents</td> </tr> <tr> <td>A3</td> <td>28.11.2005</td> <td>Loan application</td> </tr> <tr> <td>A4</td> <td>28.11.2005</td> <td>Loan agreement cum Hypothecation Deed</td> </tr> <tr> <td>A5</td> <td>28.11.2005</td> <td>Charge of Declaration</td> </tr> <tr> <td>A6 &amp; A7</td> <td>07.11.2005</td> <td>RTC and Mutation Register extract</td> </tr> <tr> <td>A8</td> <td>28.11.2005</td> <td>Guarantee letter</td> </tr> <tr> <td>A9</td> <td>26.11.2008</td> <td>Acknowledgment</td> </tr> <tr> <td>A10</td> <td>31.12.2009</td> <td>Death Certificate</td> </tr> <tr> <td>A11</td> <td>31.10.2011</td> <td>Acknowledgement</td> </tr> <tr> <td>A12</td> <td>30.09.1024</td> <td>Acknowledgment of debt from Legal heirs</td> </tr> <tr> <td>A13</td> <td>30.09.2014</td> <td>Legal Notice</td> </tr> <tr> <td>A14</td> <td></td> <td>Statement of account</td> </tr> </tbody> </table>

**SCHEDULE PROPERTY**

All that piece and parcel of the Agricultural land bearing :- <table border="1"> <thead> <tr> <th><b>SI No</b></th> <th><b>Sy.No</b></th> <th><b>Acres</b></th> <th><b>Guntas</b></th> <th colspan="2"><b>Boundary</b></th> <th><b>Location</b></th> </tr> </thead> <tbody> <tr> <td rowspan="2">1</td> <td rowspan="2">223</td> <td rowspan="2">04</td> <td rowspan="2">09</td> <td>East by</td> <td>Government Mandi</td> <td rowspan="2">Konanur Village and Hobli, Arakalagudu Taluk, Hassan</td> </tr> <tr> <td>West by</td> <td>Road</td> </tr> </tbody> </table>

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<table border="1"><tr><td></td><td></td><td></td><td></td><td>North by</td><td>Land of Karigowda</td><td rowspan="2">District</td></tr><tr><td></td><td></td><td></td><td></td><td>South by</td><td>Land of Somasekhar.</td></tr></table>

**HYPOTHECTAION OF TRACTOR, TRAILER AND ACCESSORIES**

MAHINDRA 475 D - TRAILER D1- TRACTOR

Sd/- **(S.V. GOWRAMMA)** **PRESIDING OFFICER** **DRT-II, BENGALURU**

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