CANARA BANK vs Mr Hanumappa Gurrappa Waddar on 7 September 2019

**FINAL ORDER**

The present Application dated 27.11.2014 came to be registered on the basis of jurisdictional transfer and renumbered as TA.No.1372/2017 under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 seeking recovery of an amount of Rs.15,98,836/- (Rupees fifteen lakh, ninety-eight thousand, eight hundred thirty-six only) from the Defendants together with interest and cost.

2. The case of the applicant bank is that Defendants No.1 and 2 (borrowers) and defendant No.3 is the co-obligant and guarantor. The defendants No.1 and 2 had approached the applicant bank for financial assistance for the purpose of purchase of HMT Diesel Agricultural Tractor of 25 HP, Model No.2522 with a Trailer. The Applicant Bank considered their request and sanctioned the loan of Rs.3,70,000/-, vide Sanction 3TA.No.1372/2017

Letter dated 09.09.2003. The Defendants have executed requisite necessary documents in favour of the applicant bank for the above said loan. 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 account and also failed to pay the installments and did not come forward to repay the balance outstanding. Hence, the OA was filed and now numbered as TA.1372/2017. The applicant bank has produced the documents in favour of its case viz., Application, Loan Sanction Letter, Memorandum of Agreement, Record of Rights, No objection Letter, Invoice, Particulars of vehicle, Delivery Note, RC Book, Letters of Revival, and Certified Accounts Extract.

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 4TA.No.1372/2017

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 and they have not serviced the interest thereon as per the terms and conditions. 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 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 total sum of Rs.15,98,836/- (Rupees fifteen lakh, ninety-eight thousand, eight hundred thirty-six only).

6. After transfer of the OA, summons were served on defendant No.1 and 2 through RPAD, and summons of defendant No.3 was returned with postal shara as "refused", which is deemed to be served. Even then, when the defendants were called out, they are remained absent and placed *ex-parte*.

5TA.No.1373/2017

7. To prove the case of the Applicant Bank, it's Manager – Mr. Sanganabasappa Pidnaikar S/o. Mallappa Pidnaikar 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 23 documents came to be marked as Ex.A-3 to Ex.A-25.

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:

6TA.No.1372/2017 IN OA.288/2015-DRT-I**REASONS**

12. Mr. Sanganabasappa Pidnaikar S/o. Mallappa Pidnaikar - 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-25, which clearly establish the case of the applicant bank to allow the present TA. Added to this, in spite of paper publication on the Defendant No.1 and service of summons on defendants No.2 and 3, who have remained absent, 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 attachment of schedule immovable properties in IA. No.5744/2014 passed on 03.03.2015 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 7TA.No.1372/2017

of attachment of schedule immovable properties in IA. No.5744/2014 passed on 03.03.2015 is made absolute.

Defendants shall be jointly and severally liable to pay entire TA amount of Rs. 15,98,836/- (Rupees fifteen lakh, ninety-eight thousand, eight hundred thirty-six only) with current and future interest at the rate of 14.20% p.a. compounded 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 Defendants to pay the said TA amount, the applicant bank is at liberty to sell the mortgaged immovable properties and hypothecated movable assets as mentioned in the Schedule-A and B of the 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 8TA.No.1372/2017

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 Steno, transcribed by her and after necessary corrections, signed and pronounced by me in the Open Court on this the 7^th day of September, 2019)

**(K. RAVINDRAN NAIR)**

Presiding Officer I/c - DRT II, Bengaluru.

9TA.No.1372/2017 IN OA.288/2015-DRT-I**ANNEXURES:****LIST OF WITNESSES EXAMINED ON BEHALF OF APPLICANT-BANK:**

AW.1 – Mr. Sanganabasappa Pidnaikar S/o. Mallappa Pidnaikar, Manager 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.25 : 23 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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