KOTAK MAHINDRA BANK LIMITED vs Sri. NATARAJ Y.E on 24 August 2019

**FINAL ORDER**

The present Application dated 11.08.2016 came to be registered on the basis of jurisdictional transfer and renumbered as TA.No.532/2017 under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993, seeking recovery of an amount of Rs.19,86,722/- from the Defendants together with interest and cost.

2. The case of the applicant bank is that Defendants had approached the applicant bank for financial assistance. The applicant bank considered their requests and sanctioned Construction Equipment Loan of Rs.19,80,000/-, vide Sanction Letter dated 09.12.2015. The Defendants have executed requisite necessary documents in favour of the applicant bank 3TA.532/2017

for the above said loans. The defendants have agreed to repay the said loan as per the terms and conditions of the applicant bank. After availing the loan, the defendants 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 is filed. The applicant bank has produced the documents in favour of its case viz., Board Resolution authorizing Mr. Ajay Kumar K.B. to represent the Bank, Loan Application Form, Loan-cum-Guarantee Agreement, Demand Promissory Note, Tax Invoice, Release Order, Foreclosure Statement, and Certified Accounts Extract etc.,

3. Further the Defendants agreed to repay the above loan 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.

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4. 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 Defendants. The Defendants have become chronic defaulters in the loan account 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, Defendants are liable to pay a total sum of Rs.19,86,722/-.

6. After transfer of the TA, summons were sent and served on the Defendants 1 to 4 through RPAD. Though the Id. Counsels respectively for defendant No.1 & defendant No.4 appeared, they have not chosen to file their written statement. When defendants No.2 and 3 were called out, they remained absent and placed *ex-parte*.

7. To prove the case of the Applicant Bank, its Authorized Signatory – Sri. Ajaykumar. K.B. S/o. Sri. Krishna. M., has filed his 5TA.532/2017

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 10 documents came to be marked as Ex.A-3 to Ex.A-12.

8. No evidence on behalf of the Defendants.

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

10. Following points arise for my consideration:

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

2) What order?

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

REASONS

12. Sri. Ajaykumar. K.B. S/o. Sri. Krishna. M., - Authorized Signatory 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 6TA.532/2017

referred Ex.A-3 to Ex.A-12, which clearly establish the case of the applicant bank to allow the present TA. Added to this, the Defendants No.1 and 4 inspite of appearance did not file their written statement and defendants No.2 and 3 have remained absent and hence it is to be construed that they have admitted the entire case pleaded by the applicant bank as sought in the present TA.

13. Consequently, Interim order of temporary injunction of schedule property passed in IA. No.2503/2016 passed on 10.06.2016 is 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 with costs and consequently, Interim order of temporary injunction of schedule property passed in IA. No.2503/2016 passed on 10.06.2016 is made absolute.

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Defendants shall be jointly and severally liable to pay entire TA amount of Rs. 19,86,722/- together with interest at the rate of 18% p.a. compounded at monthly rests along with penal interest @ 5% p.a., from the date of application till the date of realization, as sought by the Applicant Bank in the TA.

In the event of failure of Defendants to pay the said TA amount, the applicant bank is at liberty to sell the hypothecated movable assets as detailed in the Schedule of the Loan-cum-Guarantee Agreement produced along with main Application according to Law by the applicant bank in the TA.

In spite of sale of the property mentioned in the Schedule/s, if the TA amount is not fully realized, then the Applicant Bank is at liberty to proceed against the person and other properties of the Defendants 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 8TA.532/2017

by Defendants duly taking into account 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 Recovery Certificate.

(Dictated to the Steno, transcribed by her and after necessary corrections, signed and pronounced by me in the Open Court on this the **24^th day of August, 2019**)

**(K. RAVINDRAN NAIR)**

Presiding Officer I/c - DRT II, Bengaluru.

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TA.532/2017

**ANNEXURES:**

**LIST OF WITNESSES EXAMINED ON BEHALF OF APPLICANT- BANK:**

AW.1 – Sri. Ajaykumar. K.B. S/o. Sri. Krishna. M. Authorized Signatory of Applicant Bank.

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

Ex.A.1 : Affidavit of AW.1. Ex.A.2 : List of documents. Exs.A.3 – A.12 : 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.

K\*

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