CANARA BANK Vs. SANJAY KHANNA

JUDGEMENT

(1.) THIS appeal impugns the judgment and order dated 7.12.2010/13.12.2010 of the Presiding Officer of DRT -III, Delhi, whereby O.A. No. 202/2009 has been allowed only for Rs. 63,52,403/ - against the claim of Rs. 1,16,77,731/ -, together with pendente lite and future interest @ 10% per annum simple w.e.f. the date of filing of the O.A. till the final realisation. Briefly stated, the facts of the case are that the respondent had availed Open Cash Credit Limit of Rs. 75 lacs from the appellant -Bank after execution of loan documents and mortgage of his immovable property as collateral security in its favour. The respondent, however, could not maintain financial discipline and failed to repay the loan as a consequence thereof the loan account was declared by the Bank as Non Performing Asset (NPA) on 30.9.2006, showing an outstanding dues of Rs. 78,13,021/ - as on 31.8.2006. A demand notice under Section 13(2) of the SARFAESI Act was issued to the respondent for the payment of the due amount which, however, was not complied with. The Bank, thereafter, took possession of the mortgaged property on 9.4.2007 and put it for sale through public auction and on 3.3.2009 it was sold. Since the sale consideration could not satisfy the entire outstanding dues of the Bank, therefore, O.A. No. 202/2009 was filed against the respondent before the DRT for the recovery of Rs. 1,16,77,731/ - along with pendente lite and future interest. The notice of the O.A. was duly served upon the defendant/respondent, but he did not appear before the Tribunal below and, accordingly, the O.A. was heard ex parte against him. The Bank filed evidence in support of its O.A. which was partly adjudicated on 7.12.2010 when a portion of the order was dictated and thereafter on 13.12.2010 when it was finally disposed of by deciding the claim of the Bank only to the extent of Rs. 63,52,403/ -, as stated above. Feeling aggrieved with that order, the Bank has assailed it in this appeal before this Tribunal.

(2.) DESPITE sufficient service of notice of appeal through publication in the newspaper, the respondent did not appear before this Tribunal and as such this appeal has also been heard ex parte in the absence of the respondent. I have heard Mr. J.P. Gupta, learned Counsel for the appellant and carefully gone through the record of the case.

(3.) THE order impugned does not show as to how the learned Tribunal below had arrived at the figure of Rs. 63,52,403/ - as the amount due on the respondent which, according to the Presiding Officer, was the shortfall amount. The Tribunal below has not considered the evidence adduced before it by the appellant -Bank while determining the due amount in the order impugned and as such the amount determined by it cannot be allowed to sustain. The said figure being devoid of any support of evidence or material on record cannot be accepted. On the other hand, the figure of the outstanding amount as claimed by the appellant -Bank is supported by the evidence and the statement of account filed by it. The amount of Rs. 1,16,77,731/ - is thus held to be due on the respondent at the time of filing of the O.A. and the respondent is held liable for the payment of the said amount, as claimed by the appellant.