M/S. PHOENIX ARC P LTD vs M/S. VISHWAS PRINTS on 23 February 2019

**FINAL ORDER**

The present Transfer Application is filed by the Applicant Bank under Section 19 of the Recovery of Debts 2TA.2144/2017

Due to Banks & Financial Institutions Act, 1993, seeking recovery of an amount of Rs.12,98,807/- from the Defendant with interest and cost.

2. The case of the applicant bank that Defendant had approached the applicant bank for financial assistance. The applicant bank considered his requests and sanctioned Business Installment Loan of Rs.20,00,000/- vide Sanction Letter dated 28.02.2008. The Defendant has executed requisite necessary documents in favour of the applicant bank for the above said loans. The defendant has agreed to repay the said loan as per the terms and conditions of the applicant bank. After availing the loan, the defendant failed to regularize the loan accounts and also failed to pay the installments and did not come forward to repay the balance outstanding. Hence, the present TA. The applicant bank has produced the documents in favour of its case viz., Board Resolution, Loan Agreement, Individual Guarantee Deed, Demand Promissory Note, Most Important Information document, Statement of account of Barclay' Bank, Assignment Deed, Letter issued by Barclays Bank, Postal 3TA.2144/2017

Receipts, Loan Recall Notice, Postal Acknowledgement, and Certified Accounts Extract etc.,

3. Further the Defendant agreed to repay the above loans 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 installments as and when due to the satisfaction of the Applicant Bank, as detailed in the TA by the Applicant Bank.

4. The Defendant after utilizing all the entire loan proceeds for the above said purposes has failed to make the repayments of the loan dues as agreed and he has not serviced the interest thereon as per the terms and conditions agreed by Defendant. The Defendant has become chronic defaulter in the loan accounts and not taken any steps to clear the dues and hence the recovery process is initiated to recover the dues.

5. In the light of these factors, it is contended by the Applicant Bank that, Defendant is liable to pay a total sum of Rs. 12,98,807/-.

4TA.2144/2017

1. 6. After filing the TA, summon was sent and served on the Defendant through RPAD, when Defendant was called out, defendant remained absent and placed *ex-parte*.

2. 7. To prove the case of the Applicant Bank, its Authorized Signatory has filed her affidavit by way of evidence and same was considered as evidence of AW-1 and marked at Ex. A-1 and list of documents came to be marked as Ex.A-2 and 13 documents came to be marked as Ex.A-3 to Ex.A-15.

3. 8. No evidence on behalf of the Defendant.

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

5. 10. Following points arise for my consideration:

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

2. 2) What order?

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

5TA.2144/2017 IN OA.805/2014**REASONS**

12. The Authorized Signatory of the applicant bank came to be examined as AW-1. Her affidavit by way of evidence reiterates the facts pleaded in the plaint and her affidavit is also corroborated by the above referred Ex.A-3 to Ex.A-15, which clearly establish the case of the applicant bank to allow the present TA. Added to this, the Defendant has remained absent and hence it is to construed that he has admitted the entire case pleaded by the applicant bank as sought in the present TA.

13. Consequently, Interim order of temporary injunction of schedule properties in IA. No.2976/2014 passed on 07.03.2014 are made absolute.

14. 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 costs. Defendant shall personally liable to pay entire TA amount i.e., Rs.12,98,807/- along with current and future interest at the rate of 19.50% p.a. compounded 6TA.2144/2017

monthly rests, from the date of application till the date of realization, as sought by the Applicant Bank in the TA.

Applicant Bank shall file fresh Memo of calculation of TA amount together with interest, costs etc., to be paid by Defendant duly taking into account the amount/s if any paid by the Defendant 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 Defendant to the Applicant Bank.

Office is directed to issue Recovery Certificate.

(Dictated to the Steno, transcribed by her and after necessary corrections, signed and pronounced by me in the Open Court on **this 23^rd day of February, 2019**)

**(K. RAVINDRAN NAIR)** **Presiding Officer** **I/C - DRT II, Bengaluru.**

7TA.2144/2017 IN OA.805/2014ANNEXURELIST OF WITNESSES EXAMINED ON BEHALF OF APPLICANT-BANK:

AW.1 – Smt. Laxmi Rathod, Authorized Signatory of Applicant bank

LIST OF DOCUMENTS MARKED ON BEHALF OF APPLICANT BANK:

Ex.A1 : Affidavit of AW.1. Ex.A2 : List of documents. Exs.A3 – A.15 : 13 documents.

LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENDANT :

- NIL -

LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENDANT:

-NIL-

**(K. RAVINDRAN NAIR)** Presiding Officer, I/C - DRT II, Bengaluru.

K\*

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