1. Applicant Bank has filed this Original Application on 21.12.2020 under section 19(1) of the Recovery of Debts and Bankruptcy Act, 1993 (as amended from time to time) against the Defendants for recovery of Rs.41,42,294/- (Rupees Forty-One Lacs Forty-Two Thousand Two Hundred Ninety-Four only) alongwith pendente-lite and future interest @12.00% per annum with half yearly rests from the date of filing of the O.A. till the date of realization and costs.

2. The brief facts of case are that the Defendant No.1 to 4 are principal borrowers and the Defendants No.5 stood guarantor for the Defendant No.1. Further, the Defendants No.2(a) to 2(d) has also been arrayed being legal heir of deceased Late Sh. Jaswant Singh who was of borrower/mortgagor and Defendants No.4(a) to 4(d4) has also been arrayed being legal heir of deceased Late Sh. Daleep Singh who was of borrower. On 05.08.2012 the Defendant No.1 to 4 being principal borrower approached Applicant Bank for grant of financial assistance in the shape of KCC of Rs.30,00,000/- for agriculture purpose and submitted loan application. Applicant Bank after considering the loan application on 25.08.2012 sanctioned a KCC of Rs.30,00,000/- for agriculture purpose to the Defendant No.1 to 4 against primary security of hypothecation of crops, personal guarantee of the Defendant No.5 and collateral security by way of registered mortgage of immovable property owned by the Defendant No.1 & 2 in favour of Applicant Bank. The rate of interest was agreed between the parties applicable at that time @12.00% per annum with half yearly rests subject to change from time to time as per RBI Guidelines.

3. However, after availing the aforesaid Loan/Credit Facility, the Defendants failed to maintain financial discipline as per terms and conditions of the loan agreement due to which loan account became irregular. Despite repeated reminders and persuasion, the Defendants failed to regularize the loan account. Consequently, the said account of the Defendants was classified as NPA on 30.11.2019 by Applicant Bank. Thereafter, Applicant Bank served Legal Notice to the Defendants to repay the outstanding dues but the Defendants failed to make the payment. Hence, the present Original Application has been filed by Applicant Bank against Defendants for recovery of Rs.41,42,294/- (Rupees Forty-One Lacs Forty-Two Thousand Two Hundred Ninety-Four only) alongwith pendente-lite, future interest, costs and for issuance of Recovery Certificate for the said amount.

4. After service of summons, none appeared for the Defendant No.1,3 & 5 as well as Legal Heir of deceased Defendant No.2 & 4. Hence, the case was proceed ex-parte vide order dated 16.08.2023.

5. I have heard the arguments of Ld. Counsel for Applicant Bank and perused the material on record.

6. The point for consideration is whether Applicant Bank is entitled for the relief claimed

7. Applicant Bank filed its evidence by way of affidavit of Sh. Munish Sharma, Manager of Applicant Bank as A-1/1 who proved the various loan and security documents which are marked as Exhibit- A-1/1 to Exhibit- A-1/12.

8. The witness Sh. Munish Sharma, Manager of Applicant Bank as A-1/1 has fully supported the averments made by the applicant in its application. The Applicant Bank has also established its case through documentary evidence being Exhibit- A-1/1 to Exhibit- A-1/12. On a careful scrutiny of the evidence on affidavit and exhibits marked as Exhibit- A-1/1 to Exhibit- A1/12, it is proved that Defendant No.1 to 4 had availed the KCC facility from the Applicant Bank against primary security of hypothecation of crops, personal guarantee of the Defendant No.5 and collateral security by way of registered mortgage of immovable property owned by the Defendant No.1 & 2 by executing various loan & security documents detailed as above in favour of the Applicant Bank. A perusal of Original Application, evidence and documents relied upon clearly show that Defendants had utilized the above loan facility as granted to them.

9. However, after availing the aforesaid KCC, Defendants failed to maintain financial discipline as per terms and conditions of the loan agreement. Consequently, the said account was classified as NPA on 30.11.2019. Thereafter, Applicant Bank served Legal Notice dated 14.10.2020 Exhibit- A-1/11 to the Defendants to repay the outstanding dues but the Defendants failed to make the payment of outstanding dues.

10. Further, on perusal of Exhibits A-1/10 show that Applicant Bank has maintained the Books of account in the ordinary course of banking business in relation to loan amounts as per provisions of Bankers Books Evidence Act, 1891 and Guidelines of RBI under Banking Regulation Act, 1949. It further shows that Applicant Bank had regularly credited the amount if any, paid by the defendants in the books of account. Applicant Bank had also charged interest from time to time and the entries are relevant U/s 4 of the Bankers Books Evidence Act, 1891 as reflected from A/c Statements attached with O.A. Exhibits A1/10.

11. Moreover, Applicant Bank has been able to prove that the Defendant No.1 availed the KCC Facility and failed to repay the same in terms of loan documents. Since, the transactions are of commercial nature between the parties, the Defendants are bound to repay the loan amount with interest as agreed upon and Applicant Bank is entitled to recover suit amount with interest as claimed by it. The Original Application has been presented on 21.12.2020 i.e. within three years from the date of last deposit which was made on 31.05.2019 admitting debt liability for the purpose of limitation as reflected from Account Statement Exhibit A-1/10. Thus, it is proved that the Defendants are jointly and severally liable to pay the claim made in the O.A. to the Applicant Bank. However, Defendants No.2(a) to 2(d) being legal heir of deceased Late Sh. Jaswant Singh and Defendants No.4(a) to 4(d4) being legal heir of deceased Late Sh. Daleep Singh are liable to pay only to the extent of estate of deceased borrower/mortgagor inherited by them.

12. The whole case of the Applicant Bank is based on documentary evidence and the witness has duly proved all these documents. In my view there is no question of disbelieving the evidence lead by the Applicant Bank and Applicant Bank has succeed in proving its case.

13. Applicant Bank has claimed interest 12.00% per annum with half yearly rests w.e.f. 21.12.2020 till the date of realization and costs. The contract between Applicant Bank and the Defendants comes to an end after filing of the O.A. as per the provisions of Section 19(20) of the Recovery of Debts and Bankruptcy Act, 1993 (as amended from time to time) which is analogous to Section 34 of the CPC, the Tribunal/Court has discretion in awarding pendente-lite and future interest. On the basis of the foregoing discussion, justice will be administered if pendente-lite and future interest is granted @11.00% per annum simple rate of interest as claimed by Applicant Bank from the date of filing of the O.A. till the date of realization with costs.

14. In the light of above discussion, the Original Application deserves to be allowed against the Defendants with costs. The hypothecated assets & mortgage properties are liable to be sold for recovery of amount due alongwith the personal movable & immovable properties/assets of the Defendants.

ORDER

(i) The Original Application is allowed declaring that the Defendants are liable to pay a _ total sum _ of Rs.41,42,294/- (Rupees Forty-One Lacs Forty-Two Thousand Two Hundred Ninety-Four only) along-with cost, expenses and future interest @11.00% per annum simple rate of interest as claimed by Applicant Bank from the 21.12.2020 i.e. date of filing of the OA till the date of realization in full, jointly and severally. However, Defendants No.2(a) to 2(d) being legal heir of deceased Late Sh. Jaswant Singh and Defendants No.4(a) to 4(d4) being legal heir of deceased Late Sh. Daleep Singh are liable to pay only to the extent of estate of deceased borrower/mortgagor inherited by them. The Defendants are directed to pay the dues within 30 days.

(ii) In case of failure to repay the aforementioned adjudicated amount within 30 days, same shall be recovered from the sale of the hypothecated assets & mortgaged properties of the Defendants in execution proceedings. The amount, if any, already recovered by sale of any hypothecated assets/mortgage properties or otherwise shall be adjusted towards the debt and only the balance amount shall be recoverable. If the dues of Applicant Bank still remain unsatisfied, the same shall be recovered by attachment and sale of the personal movable and immovable assets of the Defendants jointly and severally. However, the Defendants No.2(a) to 2(d) being legal heir of deceased Late Sh. Jaswant Singh and Defendants No.4(a) to 4(d4) being legal heir of deceased Late Sh. Daleep Singh js liable to pay only to the extent of estate of deceased borrower/mortgagor inherited by them. The cost of litigation be also borne by the Defendants.

(iii) The Defendant/s are hereby restrained by means of injunction from depleting, transferring, encumbering, alienating, selling or otherwise dealing with hypothecated assets, mortgage properties or their — other immovable/movable_properties/estates without first paying the above claim of Applicant Bank. However, Defendants No.2(a) to 2(d) being legal heir of deceased Late Sh. Jaswant Singh and Defendants No.4(a) to 4(d4) being legal heir of deceased Late Sh. Daleep Singh is hereby restrained only to the extent of estate of deceased borrower/ mortgagor inherited by them.

(iv) In case, any of the Defendants expire, the legal representatives shall be liable to pay in proportion to the inheritance.

(v) Applicant Bank is directed to file revised statement of accounts from the date of filing of O.A. along-with interest as granted by this Tribunal before the Recovery Officer of this Tribunal.

(vi) Any other application pending stands disposed of.

(vii) Recovery Certificate be issued forthwith in above terms U/s 19(22) of the Recovery of Debts and Bankruptcy Act, 1993 (as amended from time to time) and be sent to the Recovery Officer-I, DRT, Dehradun for execution.

(viii) The Recovery Officer shall realize the amount as per the Recovery Certificate in the manner and mode prescribed under section 25 to 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (as amended from time to time) from the above named Defendants. Parties are directed to appear before the Recovery Officer-I, DRT, Dehradun on 27.09.2023.

(ix) Copy of this Judgment and Recovery Certificate be given Dasti to Applicant Bank and be sent to the Defendants free of cost by Registered Post in terms of section 19(21) (i) of the RDB Act, 1993 (as amended from time to time) and Rules as well as to the Recovery Officer and after due compliance file be consigned to record room.

15. Applicant Bank is directed to file a Memo of Cost forthwith, if not filed earlier, for preparing Recovery Certificate U/s 19(22) of the Recovery of Debts and Bankruptcy Act, 1993 (as amended from time to time).

16. Judgment pronounced in the open court and signed on this 22" day of August, 2023.