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Judgment
This original application has been filed by the applicant bank, on 14.12.2017, through Ms. Ayushi Vashisht, authorized officer, of the applicant bank, under Section 19 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 against the defendants for recovery of a sum of Rs. 59,43,346.14 (Rupees Fifty-Nine Lacs Forty-Three Thousand Three Hundred Forty-Six and Paisa Fourteen Only) inclusive of all costs, charges, pendente lite and future interest @18% p.a., alongwith 2% penal interest with monthly rests from the date of filing of the present application till realization of the present application
The brief facts of the case are that the defendant no. 1 is the principal borrower of the loan facility, whereas, the defendant no. 2 stood as the guarantor to the loan facility availed by defendant no. 1. At the request of the defendants the applicant bank sanctioned the two loan facilities of Rs. 27,93,000/- each. In order to avail the said loan facilities, the defendants executed various loan documents such as loan agreement, letter of disbursement etc.
It has been submitted by the applicant bank that in order to secure the aforesaid loan facility the defendants hypothecated the vehicles namely,
Sr.
Acc. No.
Model
Engine no.
Chassis no.
Registration no.
1
82647655
MAHINDRA BLAZO 37
EFHZE13824
MA1PHAPHDHE6E49005
RJ20GB3284
2
82601430
MAHINDRA BLAZO 37
EFHZE13801
MA1PHAPHDHE6E49004
RJ20GB3844
It has further been submitted by the applicant bank that after availing the aforesaid loan facilities, the defendants failed to comply with the terms and conditions and despite of several requests and reminders the defendants failed to pay the outstanding dues and monthly installments in time to the applicant bank and accordingly the account was classified as NPA. Ultimately, the applicant bank sent loan recall notice dated 25.11.2017, calling upon the defendants to pay the entire outstanding dues to the applicant bank but the defendants did not clear the dues of the applicant bank and hence the applicant bank has approached this Tribunal for recovery of their dues.
Notices of this O.A. were issued to the defendants, they put appearance through counsels and filed their joint written statements.
In their joint written statements, the defendant no. 1 & 2 have raised various preliminary objections such as the present application is not maintainable as the same has not been filed by an authorized officer, the statement of account is not correct and as per the Guidelines of the RBI, the applicant bank has charged interest over and above the prescribed rate, the defendants had signed on blank documents at the time of availing the loan facility. Further, the defendant no. 1 & 2 have also submitted that they had approached the applicant bank for availing the loan facility for purchase of the commercial vehicle to be used at ACC Cement, whose capacity was to carry 25 tons and having 14 tyres, however, at a later stage, the contract got canceled with the company as the company had introduced a new policy to use only vehicles whose capacity was to carry 30 tons having 18 tyres, due to which the defendants suffered huge and irreparable loss as they had to pay the entire amount for the construction of the body of the truck from his own pocket and accordingly, could not repay the loan amount of the applicant bank. Furthermore, the defendants have also submitted that they are willing to repay the installments in time if the applicant bank reduces the installments. Accordingly, prayed for dismissal of the present application.
In order to prove its case, the applicant bank has filed its evidence by way of affidavit of Ms. Sampurna Gupta, Deputy Manager, of applicant bank who has proved the power of attorney as Ex. AW-1/1. She also proved the documents such as original application form as Ex. AW-1/2, original loan agreement as Ex. AW-1/3, legal notice dated 25.11.2017 alongwith postal receipts as Ex. AW-1/4(colly), delivery reports downloaded from the website of Indian Postal Department as Ex. AW-1/5(Colly), statement of account alongwith foreclosure/prepayment letter dated 24.11.2017 as Ex. AW-1/6(colly), statement of account dated 14.05.2018 as Ex. AW-1/7(colly).
In the present matter, merely the defendants filed written statement alleging that the commercial vehicles were used for ACC Cement for loading and uploading, having capacity of more than 25 tons and containing 14 tyres, later on, the ACC Company had introduced a new policy that only commercial vehicles having a capacity of 30 tons and 18 tyres can be used for company work. Thus, it is admitted that the trucks were purchased after taking loan from the applicant bank by the defendants, but there was no tripartite agreement between the HDFC Bank and ACC Cement company or the defendants that the said condition must be there and the trucks were used with the permission of the HDFC Bank for the ACC cement company. Therefore, if there is any breach of terms or further policy of that company, for that purpose, the applicant bank cannot be held liable. There may be terms between the defendants and that company but the same are not binding in any manner with the HDFC Bank. Rather, from the written statement, it is stand proved the loan facility was advanced by the applicant bank and the same was availed by the defendants by virtue of the documents placed on file that the two loan facilities each of Rs. 27,93,000/- were availed, i.e., vide loan account no. 82601430 and 82647655 two commercial vehicles, bearing registration no. RJ20GB3284 & RJ20GB3844 were purchased as per the terms of the agreement. The same was repayable at 18% p.a., and presently, a sum of Rs. 59,43,346.14 is due. Accordingly, the bank is entitled to recover the same alongwith interest.
defendants have raised the objection that the applicant bank has got the signature of the defendants on blank documents while granting the loan facilities to the defendants. This Tribunal has gone through the documents which are duly filled and executed by the defendants and this Tribunal is of the view that plea of blank documents is no plea in the eyes of law as has been held by the Hon'ble Delhi High Court in the matter of "Indian Bank Vs. Cheese Wafers (India) Pvt. Ltd. It was held if the defendants have not filed any complaint before higher authorities of the bank or filed any complaint before police authorities, he will not be entitled to raise such plea at the later stage......". Thus, the plea of blank documents is not maintainable after filing of the suit and the same is rejected.
The defendants have raised the objection that the present O.A. is not filed by the authorized officer, but on perusal of the it is observed that the present O.A. has been filed by Ms. Sampurna Gupta, Deputy Manager, of the bank, whose power of attorney executed by the applicant bank in her favour is Ex. AW-1/1. Therefore, the plea is not maintainable and the same is rejected.
The defendants have also challenged the statement of account of the bank but this Tribunal is of the view that statement of account is duly certified under Section 4 of the Bankers Books of Evidences Act and the same cannot be challenged unless specific entry is pointed by the defendants. Hence, the said objection is not maintainable and the same is hereby rejected.
The defendants have also raised the objection that the applicant bank has charged exorbitant rate of interest. However, on perusal of records, it is observed that the defendants have duly signed and executed the loan application form and loan agreement, agreeing upon the terms and conditions and the rate of interest as proposed by the applicant bank. Hence, the said objection is not maintainable and thus, rejected.
The witness has fully corroborated the averments made in the O.A. Even otherwise the whole case of the applicant bank is based on the documents and the witness has duly proved all these documents. The evidence filed by the applicant bank gone unrebutted and there is no question of disbelieving the evidence lead by the applicant bank and applicant bank has proved its case beyond reasonable doubts.
In the light of the above discussions, the Original Application deserves to be allowed,
ORDER
(i) I allow this OA and direct the defendant no. 1 & 2 to pay to the applicant bank, jointly or severally, within 30 days, a sum of Rs. 59,43,346.14 (Rupees Fifty-Nine Lacs Forty-Three Thousand Three Hundred Forty-Six and Paisa Fourteen Only) inclusive of all costs, charges, pendente lite and future interest @18% p.a., compounded at monthly rests till realization of present application; failing which the aforesaid amount shall be recovered from the sale of the hypothecated vehicles namely,
Sr.
Acc. No.
Model
Engine no.
Chassis no.
Registration no.
1
82647655
MAHINDRA BLAZO 37
EFHZE13824
MA1PHAPHDHE6E49005
RJ20GB3284
2
82601430
MAHINDRA BLAZO 37
EFHZE13801
MA1PHAPHDHE6E49004
RJ20GB3844
In case of shortfall, the same shall be recovered from the sale of the movable and immovable properties/assets of the defendant no. 1 & 2.
(ii).The recovery certificate be issued forthwith and be sent to the Recovery Office-II, Debts Recovery Tribunal-Ill, Delhi.
(iii). Parties are directed to appear before the Recovery Officer-II, DRT-III, Delhi on 23.11.2020.
(iv) Copies of final order as well as Recovery Certificate be sent to all concerned free of cost.
File be consigned to records.