Citation Codes

Equivalent Citations

citation codes

Case Number

OA/1436/2019

Disposition

allowed

Attorney(S)

Judges

VIVEK SAXENA

Acts

SECTION 22 RECOVERY OF DEBTS DUE TO BANKS AND FINANCIAL INSTITUTIONS ACT 1993
Section 25 and 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993

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Smart Summary

Structured Summary of the Opinion — Debts Recovery Tribunal, Jaipur (O.A. No. 1436 of 2019)

Factual and Procedural Background

Source: Order dated 25-06-2020, O.A. No. 1436 of 2019.

The applicant is Kotak Mahindra Bank Limited (Branch: Krishna Tower, C-Scheme, Jaipur). The defendants are:

Swami Construction Company (Defendant No.1);
Jayranj Das Mahant (Defendant No.2); and
Pramod Kumar Swami (Defendant No.3).

The bank filed Original Application No. 1436 of 2019 on 21.10.2019 for recovery of a sum of Rs. 42,47,743/- (Forty Two Lacs Forty Seven Thousand Seven Hundred Forty Three Only) in respect of credit facilities granted for purchase of construction equipment/commercial vehicles. The loan facility was sanctioned on 06.02.2018 for Rs. 57,86,775/-, repayable in 47 monthly installments of Rs. 21,800 each, with an initial contractual interest rate stated as 10.59% p.a.

The bank issued a Loan Recall Notice dated 04.06.2019 after alleged persistent defaults. As per the Statement of Account, a sum of Rs. 42,47,743/- was outstanding as on 12.10.2019. The defendants failed to appear and were set ex-parte on 24.02.2020. The applicant filed an evidence affidavit and produced documents marked Exhibit Aw/1 to Aw/7. The Tribunal heard the applicant’s counsel via video conference and pronounced the decision on 25-06-2020.

Legal Issues Presented

Whether the applicant bank is entitled to the claim as prayed for?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Tribunal's reasoning, as reflected in the text of the judgment, proceeded in the following manner:

The Tribunal noted the procedural posture: the defendants remained absent and were proceeded against ex-parte on 24.02.2020.
The applicant bank had filed an evidence affidavit and produced documentary evidence marked Exhibit Aw/1 to Aw/7.
The Tribunal found that the evidence affidavit and the recitals in the attached documents (Exhibits Aw/1 to Aw/7) "clinches the claim of the applicant bank against the Defendants." This factual-determinative finding formed the basis for liability.
On that basis, and given the absence of the defendants to contest, the Tribunal held the defendants liable to pay the claimed amount with future interest and costs. The Tribunal specified the form and rate of future interest in its order.
The Tribunal ordered issuance of a Recovery Certificate under relevant statutory/regulatory provisions referenced in the certificate portion of the document and directed further steps for execution by the Recovery Officer, DRT, Jaipur.

The opinion does not elaborate on detailed legal argumentation, statutory interpretation beyond citing the statutory/regulatory provisions under which the Recovery Certificate is issued (e.g., sub-section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, and references to Sections 25 and 28 of the same Act and Regulation 24(1)/(2) of the DRT Jaipur Regulations 2015 in relation to verification of the Recovery Certificate).

Holding and Implications

Core Holding:

O.A. No. 1436 of 2019 is allowed.

Direct consequences and orders made by the Tribunal:

The Defendants are liable to pay to the applicant bank a sum of Rs. 42,47,743/- (Forty Two Lacs Forty Seven Thousand Seven Hundred Forty Three Only) with future interest at the rate of 10% per annum (simple) from the date of filing the original application until realization.
The applicant bank is entitled to recover the amount by sale of the hypothecated construction equipment (listed below) and also by proceeding against other personal movable and immovable properties/assets of the defendants, jointly and severally:

S.No.	Description (as stated in the order)
1.	Loan Account No. CE-623113 — Construction Equipment: Tata-CB-Tata LPS 4018 Bulker. Chassis No. 846230218, Engine No. 846230218.
2.	Loan Account No. CE-619548 — Construction Equipment: Batching and Mixing Plant — Venus Equip-CB-Venus Make Static Concrete Batching Plant Model VI-ST-75. Chassis No. 721270118, Engine No. 721270118.
3.	Loan Account No. CE-619531 — Construction Equipment: Tata-Drum Mix Plant — Himalaya Engineering Co. Chassis No. HECWMMH1211718, Engine No. HECWMMH121718.

The applicant bank is entitled to the costs and expenses of the O.A.; the certified "Memo of Cost" in Form No.10 records total costs assessed at Rs. 46,535 (comprising application fee Rs.45,000; process/publication fees Rs.285; advocate fees Rs.1,250; others NIL).
The Recovery Certificate was to be issued forthwith and sent to the Recovery Officer, DRT, Jaipur, and parties were directed to appear before the Recovery Officer on 25-09-2020. The Recovery Officer was directed to realize the amount in the manner prescribed under Sections 25 and 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (as referenced in the certificate).
The Registrar was directed to verify the Recovery Certificate as per Regulation 24(1) and (2) of Debts Recovery Tribunal Jaipur Regulation 2015; the Registrar carried out verification on 25-06-2020 and the Recovery Certificate was prepared accordingly.

Broader implications: The opinion contains no discussion of creating any new legal precedent or wider legal principle beyond the orders issued in this particular application. The decision's practical effect is the monetary decree, entitlement to costs, and authority to proceed with recovery and sale of hypothecated assets in accordance with statute and tribunal regulations.

Administrative details from the order: Judgment pronounced in open court on 25-06-2020; Presiding Officer: Shri Vivek Saxena. Defendants proceeded ex-parte. Exhibits produced by applicant: Exhibit Aw/1 to Aw/7.

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KOTAK MAHINDRA BANK LIMITED v. SWAMI CONSTRUCTION COMPANY

"ORIGINAL APPLICATION" No. 1436 of 2019

BEFORE THE DEBTS RECOVERY TRIBUNAL, JAIPUR

PRESENT- SHRI VIVEK SAXENA

PRESIDING OFFICER

O.A. NO. 1436 OF 2019

DATE OF DELIVERY OF ORDER 25-06-2020

KOTAK MAHINDRA BANK LIMITED

Regd. Office at-27 BKC, C 27, G Block, Bandra Kurla Complex, Bandra (E), Mumbai-400051

Branch Office at-Ist Floor, 57, Krishna Tower Sardar Patel Marg, C-Scheme,

Jaipur.

…..Applicant Bank……

VERSUS

1. SWAMI CONSTRUCTION COMPANY, Office Address at- Ghatda, Post Dariba Project, Alwar-301410 (Raj.)

2. JAYRANJ DAS MAHANT, S/o. Shri Asharam Das, R/o. Ghatda, Toda, Jaisinghpura, Dariba Project, Alwar-301410 (Raj.)

3. PRAMOD KUMAR SWAMI, S/o. Shri Jayram Das Swami, R/o. Satyaram House, Ayodhya Nagar, Civil Line Ke Pas, Bye Pass, Dausa- 303303 (Raj.)

……Defendants……

Counsel for the Applicant Bank - Shri Akhil Modi & Hitesh Kumar Defendants- Ex-parte

JUDGMENT

1. The Applicant Bank originally filed this O.A. on 21.10.2019, against the Defendants for the recovery of a sum of Rs.42,47,743/-(Forty Two Lacs Forty Seven Thousand Seven Hundred Forty Three Only) on Credit Facility for purchase of Commercial Vehicle @ 10.59% p.a. rests from the Defendants with date of filing this original application till the date of realization and in default by sale of Construction Equipment i.e.-

S.No.	Description of Vehicle
1.	Loan Account No. CE-623113 Construction Equipment-Tata-CB-Tata LPS 4018 Bulker. Chassis No. 846230218, Engine No. 846230218

2.	Loan Account No. CE-619548 Construction Equipment-Batching and Mixing Plant- Venus Equip-CB-Venus Make Static Concrete Bathing Plant Model VI-ST-75 Chassis No. 721270118, Engine No. 721270118
3.	Loan Account No. CE-619531 Construction Equipment-Tata-Drum Mix Plant-Himalaya Engineering Co. Chassis No. HECWMMH1211718, Engine No. HECWMMH121718

AND as well as other Personal movable and immovable properties/assets of Defendants, jointly and severally. The applicant bank is entitled to proceed against the same towards recovery of its debt. The applicant bank is entitled to the costs and expenses of the original application.

The brief facts of the case are-

i. that the present original application was filed by the Authorized Officer of the applicant bank and who was authorized to sigh & verify the original application and the same on behalf of the bank by virtue of the authority through Power of Attorney Exhibit Aw/1.

ii. that the Defendant No. 1 is the Company in the capacity of borrower along with defendant no. 2 is authorized signatory in capacity of Co-Borrower, Defendant No. 3 in the capacity of Co-Borrower had approached the applicant bank for seeking credit facility in the form of Construction Equipments Loan for purpose of business improvement.

iii. that looking upon the good banking history of the defendants, the applicant bank has sanctioned a total loan amount of Rs. 57,86,775/- on 06.02.2018 for purchasing commercial Vehicle. The loan account was executed wherein the Vehicle were hypothecated in the favour of the applicant bank.

iv. that while seeking the aforesaid loan facility, defendants agreed to avail the said credit facility on the terms and

conditions stated in the loan agreement and also agreed to repay interest along with other charges as stated in the loan documents.

v. that the aforesaid loan amount was to be paid in 47 monthly installments of Rs. 21,800/- each with rate of interest @ 10.59%p.a.

vi. that looking to the regular defaults committed by the defendants, the applicant bank has issued a Loan Recall Notice on 04.06.2019, with regard to loan account to the defendants calling them to pay the outstanding amount, however the defendants have failed to deposit the outstanding dues and have further failed to return the Construction Equipment in compliance of the loan recall notice.

vii. that the defendants failed to maintain proper financial discipline and committed defaults on regular basis and as per the Statement of Account a sum of Rs. 42,47,743/- as on 12.10.2019 is outstanding against the defendants in all the loan account.

viii. that the applicant bank is entitled to recover the aforesaid amount from the defendants and also entitled to realize outstanding amount by the sale of Construction Equipment & personal properties of the defendants.

2. The Defendants are called absent and set ex-parte on 24.02.2020.

3. The applicant bank filed its evidence affidavit along with list of documents, annexing therewith Exhibit Aw/1 to Aw/7.

4. Heard arguments through Video Conference of Ld. Counsel for the applicant bank.

5. The point that arise for consideration is:

Whether the applicant bank is entitled to the claim as prayed for?

6. As stated supra, the Defendants remained ex-parte. The applicant bank filed the evidence affidavit coupled with the recitals in the documents,

viz Exhibit Aw/1 to Aw/7 marked on behalf of the applicant bank, clinches the claim of the applicant bank against the Defendants. Hence, I hold that the Defendants are liable to pay to the applicant bank the claim made in O.A. with future interest and costs.

7. In the result, this O.A. No. 1436 of 2019 is allowed declaring that:-

a) The Defendants are liable to pay to the applicant bank a sum of Rs.42,47,743/-(Forty Two Lacs Forty Seven Thousand Seven Hundred Forty Three Only) with future interest @ 10% p.a. (Simple) rests from the date of filing the original application till the date of realization.

b) The applicant bank is entitled to recover the above amount by the

sale of hypothecated Construction Equipment i.e.

S.No.	Description of Vehicle
1.	Loan Account No. CE-623113 Construction Equipment-Tata-CB-Tata LPS 4018 Bulker. Chassis No. 846230218, Engine No. 846230218
2.	Loan Account No. CE-619548 Construction Equipment-Batching and Mixing Plant- Venus Equip-CB-Venus Make Static Concrete Bathing Plant Model VI-ST-75 Chassis No. 721270118, Engine No. 721270118
3.	Loan Account No. CE-619531 Construction Equipment-Tata-Drum Mix Plant- Himalaya Engineering Co. Chassis No. HECWMMH1211718, Engine No. HECWMMH121718

c) The applicant bank is entitled to the costs and expenses of the

O.A.

8. The recovery certificate be issued forthwith and be sent to the Recovery Officer, DRT, Jaipur.

9. Parties are directed to appear before the Recovery Officer, DRT, Jaipur on 25-09-2020.

10. Prepare Recovery Certificate accordingly.

11. A copy of the Judgment and Recovery Certificate be given or sent by registered post to each of the parties free. A copy of the Recovery Certificate be sent to the Recovery Officer of this Tribunal for necessary action as per the law.

(Vivek Saxena)

Presiding Officer, Debts Recovery Tribunal, Jaipur Order pronounced in the open court today i.e. 25-06-2020.

(Vivek Saxena)

Presiding Officer, Debts Recovery Tribunal, Jaipur Place-Jaipur

Dated-25-06-2020

BEFORE THE DEBTS RECOVERY TRIBUNAL, JAIPUR

PRESENT- SHRI VIVEK SAXENA

PRESIDING OFFICER

O.A. NO. 1436 OF 2019

DATE OF DELIVERY OF ORDER 25-06-2020

RECOVERY CERTIFICATE

(UNDER SUB Section 22 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (Act 51 of 1993)

KOTAK MAHINDRA BANK LIMITED

Regd. Office at-27 BKC, C 27, G Block, Bandra Kurla Complex, Bandra (E), Mumbai-400051

Branch Office at-Ist Floor, 57, Krishna Tower Sardar Patel Marg, C-Scheme,

Jaipur.

…..Applicant Bank……

VERSUS

1. SWAMI CONSTRUCTION COMPANY, Office Address at- Ghatda, Post Dariba Project, Alwar-301410 (Raj.)

2. JAYRANJ DAS MAHANT, S/o. Shri Asharam Das, R/o. Ghatda, Toda, Jaisinghpura, Dariba Project, Alwar-301410 (Raj.)

3. PRAMOD KUMAR SWAMI, S/o. Shri Jayram Das Swami, R/o. Satyaram House, Ayodhya Nagar, Civil Line Ke Pas, Bye Pass, Dausa- 303303 (Raj.)

……Defendants……

Recovery Certificate for Rs. 42,47,743/-

In terms of final order dated 25-06-2020 passed by this Tribunal in the above mentioned case, it is ordered that the-

b) The applicant bank is entitled to recover the above amount by the

sale of hypothecated Construction Equipment i.e.-

S.No.	Description of Vehicle
1.	Loan Account No. CE-623113 Construction Equipment-Tata-CB-Tata LPS 4018 Bulker. Chassis No. 846230218, Engine No. 846230218
2.	Loan Account No. CE-619548 Construction Equipment-Batching and Mixing Plant-Venus Equip-CB-Venus Make Static Concrete Bathing Plant Model VI-ST- 75 Chassis No. 721270118, Engine No. 721270118
3.	Loan Account No. CE-619531 Construction Equipment-Tata-Drum Mix Plant-Himalaya Engineering Co. Chassis No. HECWMMH1211718, Engine No. HECWMMH121718

c) The applicant bank is entitled to the costs and expenses of the

O.A.

ii. Parties are directed to appear before the Recovery Officer, DRT, Jaipur on 25-09-2020.

The Recovery Officer shall realize the amount as per this Certificate in the manner and mode prescribed under Section 25 and 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (as amended from time to time) from the above named Certificate Debtor. This Certificate has been issued under my signatures and seal of the Tribunal on this 25-06-2020.

(Vivek Saxena)

Presiding Officer, Debts Recovery Tribunal, Jaipur Place-Jaipur

Dated-25-06-2020

FORM NO. 10

[See Regulation-24(1)]

DEBTS RECOVERY TRIBUNAL

SFE 3-4, Nehru Place, Tonk Road, JAIPUR- 302015

SCHEDULED TO RECOVERY CERTIFICATE

MEMO OF COST

O.A No. 1436 of 2019

KOTAK MAHINDRA BANK LIMITED

Regd. Office at-27 BKC, C 27, G Block, Bandra Kurla Complex, Bandra (E), Mumbai-400051

Branch Office at-Ist Floor, 57, Krishna Tower Sardar Patel Marg, C-Scheme,

Jaipur.

…..Applicant Bank……

VERSUS

1. SWAMI CONSTRUCTION COMPANY, Office Address at- Ghatda, Post Dariba Project, Alwar-301410 (Raj.)

2. JAYRANJ DAS MAHANT, S/o. Shri Asharam Das, R/o. Ghatda, Toda, Jaisinghpura, Dariba Project, Alwar-301410 (Raj.)

3. PRAMOD KUMAR SWAMI, S/o. Shri Jayram Das Swami, R/o. Satyaram House, Ayodhya Nagar, Civil Line Ke Pas, Bye Pass, Dausa- 303303 (Raj.)

……Defendants……

S. No.	Item of Costs	Amount in Rupees
1.	Fee on the application	45,000
2.	Process Fees (inc. Publication)	285
3.	Advocate Fees	1,250
4.	Commissioner/Receivers/Valuation/ Security Fee	NIL
5.	Miscellaneous Charges	NIL
	Total Costs	46,535

(Vivek Saxena)

Presiding Officer, Debts Recovery Tribunal, Jaipur Place-Jaipur

Dated-25-06-2020

25-06-2020

Counsel:

Sh. HITESH KUMAR, PROXY Counsel for the Applicant Bank Defendants are Ex-parte.

Judgment dictated separately and pronounced in the open court. As per order the O.A. is allowed. Recovery Certificate be prepared accordingly and the Registry is directed to verify the Recovery Certificate as per Regulation 24(1) and (2) of Debts Recovery Tribunal Jaipur Regulation 2015 and after verification place the same before the Tribunal.

(Vivek Saxena)

Presiding Officer, Debts Recovery Tribunal, Jaipur

25-06-2020

Counsel:

Sh. HITESH KUMAR, PROXY Counsel for the Applicant Bank Defendants are Ex-parte.

The Tribunal vide order dated 25-06-2020, directed the Registrar to verify the Recovery Certificate as per Regulation 24(1) and (2) of Debts Recovery Tribunal Jaipur Regulation 2015.

The Registrar vide order dated 25-06-2020 verified the Recovery Certificate as per Regulation 24(1) and (2) of Debts Recovery Tribunal Jaipur Regulation 2015. Recovery Certificate is prepared accordingly. Copy of the Judgment and Recovery Certificate be given free to the concerned parties as well as be sent to the Recovery Officer for further proceedings. File be put up before the Registrar for compliance. After compliance file be consigned to record.

(Vivek Saxena)

Presiding Officer, Debts Recovery Tribunal, Jaipur

DEBTS RECOVERY TRIBUNAL, JAIPUR

ORIGINAL APPLICATION NO. 1436 of 2019 The Recovery Certificate prepared in compliance of order dated 25-06-2020 passed by Hon'ble Presiding Officer, DRT, Jaipur in Original Application No. 1436 of 2019 Title- Kotak Mahindra Bank Ltd. Vs. Swami Construction Company and ors has been checked and may be verified. Section Officer

Assistant Registrar

On the basis of the report of Section Officer the Recovery Certificate is verified. The Recovery Certificate is placed below for the signature of Hon'ble Presiding Officer please.

Assistant Registrar

Hon'ble Presiding Officer

KOTAK MAHINDRA BANK LIMITED v. SWAMI CONSTRUCTION COMPANY

Structured Summary of the Opinion — Debts Recovery Tribunal, Jaipur (O.A. No. 1436 of 2019)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

KOTAK MAHINDRA BANK LIMITED v. SWAMI CONSTRUCTION COMPANY

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