At, Debts Recovery Tribunal Chandigarh
By, THE HONORABLE JUSTICE: AKSHAY BIPIN
By, (PRESIDING OFFICER)
For Petitioner: R.K. Garg, Advocate
1. This is an application under section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act for the recovery of Rs. 46,41,722.00 with interest and costs.
2. Summons were issued. Defence of defendant No. 1 was struck off vide order dated 07.01.2013.
Defendants No. 2 to 6 are the legal representatives of the sole proprietor/borrower Shri R.K. Bhatia.
Defendant No. 2 (also since deceased) is also now being represented by defendant Nos. 3 to 6, her legal heirs. Defendants No. 3 and 4 and 5 appeared through counsels and filed written statement separately. Defendant No. 6 has adopted the written statement filed by defendant No. 5 vide order dated 18.10.2012.
3. In support of OA affidavit of Sh. G.S. Gill, Chief Manager has been filed with the OA proving the annexures. Thereafter Shri Manohar Lal, Assistant Manager, exhibited the documents Ex. A-1 to A-11, Ex. A-15 to Ex. A-23. and Mark A-12 to A-14.
4. Sh. Ram Kishan Bhatia (since deceased) who had been availing credit facilities since 1986 which were enhanced later and had mortgaged properties, title of which were deposited vide Ex A-1 and Ex A-2,applied for enhancement of credit facilities vide application Ex. A-3. The sanction letter of Rs. 35.00 lacs is Ex. A-4. Letter of arrangement executed by Sh. Ram Kishan Bhatia (since deceased) on behalf of defendant No. 1 is Ex. A-5. Agreement of loan executed by Sh. Ram Kishan Bhatia (since deceased) on behalf of defendant No. 1 is Ex. A-6. Agreement of Hypothecation of goods and assets executed by Sh. Ram Kishan Bhatia (since deceased) on behalf of defendant No. 1 is Ex. A-7. Letter regarding grant of individual limits within the overall limits executed by Sh. Ram Kishan Bhatia (since deceased) on behalf of defendant No. 1 is Ex. A-8. Letter of consent executed by Sh. Ram Kishan Bhatia (since deceased) on behalf of defendant No. 1 is Ex. A-9. Letter of confirmation of charge is Ex. A-11. The certificate of sale of property in favour of deceased Shri R.K. Bhatia/title deed is Mark A-12. The sale deed bearing Wasika No. 357 is Mark A-13. The conveyance deed executed by Sh. Ram Kishan Bhatia (since deceased) is Mark A-14. Letters of extension of charge of properties already deposited vide Ex A-1 and Ex A-2 are Ex. A-15 and Ex. A-16. The revival letters are Ex. A-17 and Ex. A-18.
5. Due to failure of the defendants to make regular payment, the account was declared Non Performing Assets (NPA) on 03.08.2009. The notice sent to the defendants under Section 13(2) of the SARFAESI Act is Ex. A-19. Letter written on behalf of defendant No. 1 for settlement under OTS is Ex A-21. The statement of account are Ex. A-22 to Ex. A-24. The net amount due is Rs. 46,41,722.00 as on 30.11.2010.
6. Written statement has been filed defendant No. 3 taking preliminary objections that the applicant has not come to the court with clean hands as there is no valid and authenticated claim against defendant No. 3; defendant firm was formed in the year 1988 but as per bank the CC limit was sanctioned on 18.12.1986 which is a material forgery; the documents relied upon by the applicant bank are disputed; OA application supplied is incomplete; detailed reply will be filed after receipt of certified and attested/authenticated copies of the documents from the bank. It is further stated that written statement filed by defendant No. 5 is being adopted by answering defendant and on merits, the pleas raised in the written statement filed by defendant No. 5 have been adopted.
Written statement has been filed by defendant No. 5 with preliminary objections that copy of OA is incomplete and not attested by a senior officer; provisional written statement is being filed and final and authenticated written statement shall be submitted after receipt of certified and attested copies; documents are time barred and no revival letters were signed by the defendants; the bank is silent about rate of interest; Annexures A-5 to A-10 are denied; bank has wrongly declared the account as IMPA and no notice was served upon the defendants.
As per order dated 18.10.2012 the counsel for defendant No. 6 stated that he adopts the written statement filed by defendant No. 5.
I have perused the record and also gone through the same.
Perusal of the file shows that the loan was taken by the father of the answering defendant who was the proprietor of defendant No. 1, as per application dated 10.09.2002 Ex A-2, sanctioned by the bank vide sanction dated 09.10.2002 Ex A-4. The answering defendant has not enclosed any document with this written statement from where he has derived the date "18.12.1986". However in para No. 4 of the OA under the head LIMITATION the bank has stated that the limit was firstly sanctioned on 16.12.1986 thereafter renewed/enhanced time to time. Even in the loan application Ex A-3 at page 22 which is APPRAISAL FORM FOR TRADE ADVANCES at column II (iv) - when established - 1986; v)-Dealing with the bank since - 1986, is clearly mentioned. Even Ex A-1 is the letter of confirmation duly executed by proprietor of defendant No. 1. The bank has annexed all the documents executed by the deceased Ram Kishan Bhatia, proprietor of defendant No. 1 and all documents are duly authenticated and exhibited by the bank. The present written statement was filed on 07.01.2013 and the loan was sanctioned on 09.10.2002. The answering defendant stating that he has not received the complete and attested copies of the OA, in this connection when the answering defendant did not receive the complete copy of OA along with annexures, yet he had filed the detailed written statement without the complete documents. There is no force in this plea and same is rejected. Perusal of the order sheets show that there is no mention by the answering defendant that incomplete paper book has been supplied to him and there is also no mention that the present written statement is a short written statement and the court granted him another opportunity to file detailed written statement after receiving the certified copies of the OA application. Even the answering defendant has not enclosed any complaint/representation to this effect that a forgery has been committed by the applicant bank upon the answering defendant.
The present OA has been filed by the applicant bank impleading all the legal heirs of deceased Shri Ram Kishan Bhatia and in para (xv) of Particulars of Equitable Mortgage the bank has clearly mentioned that the proprietor left behind his legal heirs defendant Nos. 2 to 6 (since defendant No. 2 also died) and all the personal movable and immovable assets/properties of deceased borrower/mortgagor Ram Kishan Bhatia are inherited by all his legal heirs and they all are liable to pay the dues of the applicant bank to the extent of share of inheritance. The answering defendant has not enclosed any document along with this written statement to show that the properties movable or immovable have not been inherited by him and had been gifted or transferred in the name of any other person.
Written statement has also been filed by defendant No. 4 separately which are on the same lines even ditto one by taking all the pleas raised by defendant No. 3. So there is no need to repeat it herein again.
The revival letters Ex A-17 and Ex A-18 are of dated 15.09.2005 and 17.01.2008 duly executed by deceased Shri Ram Kishan Bhatia proprietor of the defendant No. 1 and the present OA was filed by the bank on 01.12.2010 so it is within limitation and as stated above that at the time of filing the OA the proprietor of defendant No. 1 was no more who had executed the documents and the bank has impleaded defendant Nos. 2 to 6 as his legal heirs. The bank has enclosed the statement of account along with certificate and calculation sheet. The rate of interest charged as per the financial discipline and documents signed between the parties. There are Ex A-12 and Ex A-13 which are the title deed and sale deed duly submitted by the deceased Shri Ram Kishan Bhatia. Perusal of case file shows that as per gazette notification published in the Gazette of India dated 26.09.1959 and 26.08.1972 and 27.03.1987 under Regulation 76 and 77 of the State Bank of India Regulations, Shri G.S. Gill is authorized to file the present case. The bank has exhibited copy of title deed Ex A-12 and copy of sale deed Ex A-13 along with conveyance deed Ex A-14 whereby the deceased borrower/proprietor has created equitable mortgage. Perusal of Ex A-5 to Ex A-10 goes to shows that these have been executed with stamp of defendant No. 1 by the deceased Ram Kishan Bhatia being proprietor of defendant No. 1. Since the borrower did not adhere to the financial discipline the bank proceeded against the account as per financial norms and declared the account as NPA. Perusal of Ex A-19 demand notice under section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and Ex A-20 the postal receipts goes to shows that these have been sent way back 27.08.2009 to the proprietor Shri Ram Kishan Bhatia. Even the answering defendant has not given the date of the demise of his father late Shri Ram Kishan Bhatia which in any case is after 27.08.2009 which is the date of the notice.
Ex A-21 is the letter dated 30.12.2009 written by defendant No. 5 to the AGM of applicant bank admitting the availing of credit limits, same are not running regular due to recession and his father expired on 3rd week of October 2009 and defendant No. 5 being son of deceased requested the bank for OTS. This letter goes to shows that on one hand he is belying all the documents of applicant bank and on the other hand vide Ex A-21 he is admitting the availing of credit facilities and asking the bank for OTS.
Since the borrower had expired and all the properties movable and immovable were inherited by all the legal heirs of the deceased so all the legal heirs are jointly and severally liable to repay the dues to the bank as per their share of inheritance.
In view of above, I find no merits in the written statements filed by the respective defendant separately and all are rejected.
7. The bank has claimed interest @ 16.00% p.a. with monthly rests from 01.12.2010 till the realization. The Tribunal has the powers to exercise its discretion and grant rate of interest after filing of the claim application. This Tribunal is of the view that the bank is entitled to @11.00% p.a. simple rate of interest on reducing balance on the claimed amount in this OA. This Tribunal which is exercising its powers under section 19 (2) of the RDDBFI Act, thinks fit and proper to award above rate of interest on the ground that the borrower/defendant herein took the Cash Credit loan and adversity of the borrower has been considered by this Tribunal. The bank has not filed any evidence regarding diversion of funds and has also not brought any evidence that the defendants had sufficient liquid means to pay the alleged dues of the bank. Further the account of the borrower is not a running account at this stage because the bank has already filed the present OA and further the bank has also not filed any evidence that borrower had mis-utilised the same. Therefore the above rate is awarded by this Tribunal.
Further the rate of interest claimed by the bank, though may be contractual, but according to their pleadings and documents, the same keep in varying from time to time, therefore, the rate of interest with same figure may not be justifiable in the facts and circumstances of the case and as such above rate of interest is being awarded by this tribunal. In the facts and circumstances of the case and keeping in view the law laid down by Hon'ble Supreme Court of India and various Hon'ble High Courts and also lookin
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g into the prevalent rate of interest with the bank, in my view it would be appropriate to grant pendent lite and future interest @11.00% p.a. simple on reducing balance, from 01.12.2010 till its realization with costs. 8. For the foregoing reason the original application is allowed and the applicant shall be:- "i. Entitled to recover from the defendants No. 3 to 6 jointly and severally the sum of Rs. 46,41,722.00 with simple interest @ 11.00% p.a. from 01.12.2010 onwards until recovery on reducing balance with costs. ii. The above amount shall be recovered from the sale of hypothecated goods/mortgaged properties (if not sold earlier under the provisions of SARFAESI Act) and in case there are unsatisfied dues, the same shall be recovered by attaching personal assets of the defendant as prescribed in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act 51 of 1993) in accordance with law." 9. A Recovery certificate shall be issued in above terms. 10. Defendants are directed to appear before the Recovery Officer on 27.01.2017. Copy of the judgment be sent to the parties as per Rule and after due compliance, record be consigned to record room date. Judgment dated, signed and pronounced in the open court on 25.11.2016.