KOTAK MAHINDRA BANK LIMITED vs Mr. CHANDRASEKAR GOUD G on 19 October 2019

1. 1) **Mr.Chandrasekhar Goud G**

2. 2) **Mrs.Ratna G** Both are r/at: Chandra Nivas, 6^th Cross Behind KEB, M.J.Nagar, Hospet-583 201

3. 3) **Mr.Satyanarayana Lakshman Nasipudi** Ward No.4, Mariammanahalli Hospet-Harihar Road Hospet-583 222

.....**DEFENDANTS**

**Counsels on record/appeared for:**

**Applicant : The Firm – Sri Naveen B.H** **D1 & D3 : Ex-parte** **D2 : Dismissed**

**FINAL ORDERS**

The present Application came to be registered on 29.01.2015 on the basis of jurisdictional transfer and renumbered as Transfer Application No.2003/2017 under

Section 19 of the Recovery of Debts Due to Banks & Financial Institutions Act, 1993, seeking recovery of an amount of Rs.18,53,299.87 (Rupees eighteen lakh fifty-three thousand two hundred ninety-nine and paise eighty-seven only) from the Defendants together with interest and cost.

2. The case of the applicant bank is that defendants 1 and 2 had approached the applicant bank seeking financial assistance in order to expand their business along with defendant No.3, who stood as guarantor. The applicant bank considered their request and sanctioned commercial vehicles loan of Rs.26,24,587/- vide sanction letter dated 23.07.2013. Defendants have executed necessary documents in favour of the applicant bank in respect of the loan. After availing the loan, the defendants failed to regularize the loan account and also failed to pay the installments, they did not come forward to repay the balance outstanding. The Applicant bank has issued recall notice dated 09.01.2015 to the defendants, for which the defendants have not taken any steps to clear the dues. Hence, the O.A was filed in DRT-I and now numbered as TA.2003/2017 after transferred to DRT-II. The applicant bank documents in favour of its case viz., loan application, sanction letter, board resolution, loan cum guarantee agreement, DP note, deed of hypothecation, loan recall notice, foreclosure statement, certified copy of account 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 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 defendants after utilizing the entire loan proceeds for the above said purpose have failed to make the repayments of the loan dues as agreed, not serviced the interest thereon as per the terms and conditions agreed by them and became chronic defaulters and hence, the recovery process is initiated against the defendants 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 sum of

Rs.18,53,299.87 (Rupees eighteen lakh fifty-three thousand two hundred ninety-nine and paise eighty-seven only) .

6. After filing the OA, summons were sent through RPAD and same were served on defendants 1 and 3 and summon sent to defendant No. 2 not returned, thereafter summons published through paper publications against the defendant No.2, even then when defendants were called out, defendants remained absent and case against the defendant No.2 is dismissed *as AB has not taken any steps* and defendants 1 and 3 were placed ex parte.

7. To prove the case of the Applicant Bank, its Authorized signatory, Mr.Ajaykumar K.B, S/o Sri Krishna M, 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 9 documents came to be marked as Ex.A-3 to Ex.A-11.

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. 10. Following points arise for my consideration:

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

2. b) What order?

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

**REASONS**

1. 12. Mr.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 referred Ex.A-3 to Ex.A-11 which clearly establish the case of the applicant bank to allow the present TA. Added to this, the defendants remained absent, hence it is to be construed that the defendants have admitted the entire case pleaded by the applicant bank as sought in the present TA.

2. 13. Consequently, Interim order of temporary injunction of scheduled assets in IA No.628/2015 was allowed and passed on 20.02.2015 is made absolute.

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

6T.A.2003/2017 in O.A.No.317/2015**:ORDER:**

Present TA stands allowed as prayed for with costs. Consequently, Interim order of temporary injunction of scheduled assets in IA No.628/2015 passed on 20.02.2015 is made absolute.

Defendants shall be jointly and severally are liable to pay Rs.18,53,299.87 (Rupees eighteen lakh fifty-three thousand two hundred ninety-nine and paise eighty-seven only) together with interest thereon at the rate of 18% p.a. compounded at monthly rest 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 described in the Schedule of 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 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 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 Stenographer, after its transcription and necessary corrections, signed and pronounced by me in the Open Court on this the **19^th day of October, 2019**)

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

8T.A.2003/2017 in O.A.No.317/2015**ANNEXURES:****LIST OF WITNESSES EXAMINED ON BEHALF OF APPLICANT-BANK:**

AW.1 – Mr. Ajaykumar K.B, s/o Sri Krishna M 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.11 : 09 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/