STATE BANK INDIA vs M/S. KAMADHENU TRANSPORT on 28 September 2019

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

Dated this the 28^th day of September, 2019

**Present: Shri K Ravindran Nair Hon`ble Presiding Officer Incharge-DRT-II**

**T.A.No.1700/2017** **(O.A.No.783/2016-DRT-I)**

**BETWEEN:**

**State Bank of India**

No.610, Ground Floor 80 Feet road, Kormangala 6^th Block Bengaluru-560 095

**Represented by its Branch Manager**

**Mrs.Ritu Sharma**

W/o Nitish Kumar

**....APPLICANT**

**AND:**

**M/s Kamadhenu Transport**

Rep.by its Proprietrix-Smt.K.Savitha

W/o Manjunath

No.485/A, 4^th 'A' Cross

1^st Main Road, Vidhyapeeta Layout T.R.Nagar, Bengaluru-560 028

**....DEFENDANT**

**Counsels on record/appeared for:**

**Applicant : Sri M.Harish**

**Defendant : Sri M.A.Rajendra(WS not filed)**

**FINAL ORDERS**

The present Application came to be registered on 30.03.2016 on the basis of jurisdictional transfer and renumbered as Transfer Application No.1700/2017 under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993, seeking recovery of an amount of Rs.54,53,385.35 (Rupees fifty-four lakh fifty-three thousand three hundred eighty-five and paise thirty-five only) from the Defendants together with interest and cost.

2. The case of the applicant bank is that defendant is a proprietorship firm represented by its proprietrix, who had approached the applicant bank seeking financial assistance for business. The applicant bank considered her request and sanctioned term loan of Rs.47,00,000/- vide sanction letter dated 11.09.2013. Defendant has executed necessary documents in favour of the applicant bank. After availing the loan, the defendant failed to regularize the loan account and also failed to pay the installments, she did not come forward to repay the balance outstanding. Hence, the O.A was filed and now numbered as TA.1700/2017. The applicant bank has produced the documents in favour of its case viz., loan application, sanction letter, acknowledgement letter, letter of arrangement, loan-cum-hypothecation agreement, affidavit, letter of the borrower, quotation for the body building, declaration executed by the respondent, disbursal certificate, letter issued by the bank, legal notice, power of attorney, certified copy of account extract etc.

3. Further the defendant agreed to repay the above loan with variable rates 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 to keep the account regular by paying installments as and when due to the satisfaction of the Applicant Bank, as detailed in the OA by the Applicant Bank.

4. The defendant after utilizing the entire loan proceeds for the above said purpose has failed to make the repayments of the loan dues as agreed and she has not serviced the loan as per the terms and conditions agreed by her and became chronic defaulter. The Applicant bank has issued legal notice dated 04.03.2016 to the defendant, for which the defendant has not taken any steps to clear the dues and hence, the recovery process is initiated against the defendant 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 sum of Rs.54,53,385.35 (Rupees fifty-four lakh fifty-three thousand three hundred eighty-five and paise thirty-five only) .

6. After filing the OA, summons was sent through RPAD and same was served on the defendant. Thereafter, defendant appeared through her advocate, but in spite of sufficient opportunity, written statement has not been filed and when the defendant was called out, she remained absent, hence she was placed ex parte.

7. To prove the case of the Applicant Bank, its Manager, Mr.T.Chaluvarayaswamy, s/o T.C.Thimmappa, has filed his 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 20 documents came to be marked as Ex.A-3 to Ex.A-22.

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:

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

- b) What order?

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

**REASONS**

12. Mr.T.Chaluvarayaswamy, s/o T.C.Thimmappa, 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.A-3 to Ex.A-22 which clearly establish the case of the applicant bank to allow the present TA. Added to this, the defendant in spite of entering appearance through her advocate did not chose to file her written statement and also not led any evidence to contest the matter and rebut the claim of the applicant bank, hence it is to be construed that the defendant has admitted the entire case pleaded by the applicant bank as sought in the present TA.

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

6T.A.1700/2017 in O.A.No.783/2016**:ORDER:**

Present TA stands allowed with costs.

Defendant shall be personally is liable to pay Rs.54,53,385.35 (Rupees fifty-four lakh fifty-three thousand three hundred eighty-five and paise thirty-five only) with interest at the rate of 18% p.a compounded at monthly rests, 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 Defendant to pay the said TA amount, the applicant bank is at liberty to sell the hypothecated movable assets as mentioned in the loan-cum-hypothecation agreement as per Annexure No.A6 marked as Ex.A8 produced in the main petition in accordance with law as sought by the applicant bank in the TA.

In spite of sale of the properties 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 Defendant 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 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 Stenographer, after its transcription and necessary corrections, signed and pronounced by me in the Open Court on this the **28^th day of September, 2019**)

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

8T.A.1700/2017 in O.A.No.783/2016**ANNEXURES:****LIST OF WITNESSES EXAMINED ON BEHALF OF APPLICANT-BANK:**

AW.1 – Mr.T.Chaluarayaswamy, s/o T.C.Thimmappa Manager 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.22 : 20 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**

c/