Tuesday, March 15, 2011

DRT III Chennai advised SBI Tanjore to pay Rs 5000/-






IN THE DEBTS RECOVERY TRIBUNAL -III,CHENNAI

Dated this the 30  th day of November,2010

Present : Shri C P S Ramacharyulu ,Bsc.,LLB

Presiding Officer

I A No;351/2009
and
IA No :352/2009
IN

OA No : 77/2007

Between

State Bank Of India
Thanjavur Branch
Thanjavur      ...           ....                             ... Applicant/Petitioner

and

Sengamalam Soinners Pvt Ltd
Rep. by its Managing Director
Mr K R Thiruvengadam and others      ... Defendants/Respondents


ORDER

1. The above IAs are filed to permit the applicant to amend the claim in
OA No.77/2007 as Rs 92,76,146.49 and to permit the applicant to amend 
the date of NPA AS 30-6-1997 for cash credit and30-6-1993 for
 Medium Term Loan in the above OA..

2.The applicant bank filed the above original application before DRT II Chennai 
for Recovery of Rs 38,74,058.40 with future interest @ 17.75% per annum 
with quarterly rests from 1-3-2002. The said OA has been transferred to this
Tribunal and renumbered as OA 77/2007.This Tribunal directed the applicant 
bank to file the statement of account with monthly calculation of interest for the dues 
payable by the defendants.

When the interest was calculated for cash credit and medium term loan from
 the date of respective NPA, it was found that the statement filed along with
 the original application was wrongly calculated and the claim has been 
wrongly mentioned.

The applicant filed the statement of account containing the interest  calculated 
for each and every month from the date of NPA.There is a difference of claim
according to the proper statement of account.

The date of NPA was also wrongly mentioned in the OA.

The same is required to be amended as 30-6-1997 for cash credit
 and30-6-1993 for medium term loan.

The difference of amount calculated as per the statement of account 
is to be recovered from the defendants and the defendants are
 liable to pay the same.

In the event of the amendment of the claim the cause of action and 
limitation of the OA will not change.

The applicant bank prayed for permitting them to amend the claim in the
 original application as Rs 92,76,146,49 and the date of NPA as 
30-6-1997 for cash credit  and30-6-1993 for medium term loan.

3. Opposing the contentions of the applicant bank
the 2 nd defendant filed counter affidavit on his
 behalf and onbehalf of other defendants.

The defendants denied the allegations that the
 petitioner filed statement of account
for the alleged claim as false.

Unless the petitioner files the certified copy
 of the statement of account as per the bankers 
book of evidence act, the same can not be treated
 as a statement of account.

Pending proceedings,the petitioner also filed another 
 statement.Hence the allegation that the petitioner
filed statement of account can not be accepted.

The Applicant itself admittedthat the earlier 
statement of account was wrongly calculated..

An Assistant General Manager of a Nationalised
bank had filed an affidavit that the interest was 
 wrongly calculated.

Even till date  the applicant had not come forward
 to file the certified copy of the statement of
 accounts inorder to prove  their alleged claim.

Even though it was mentioned in the last hearing, 
the applicant bank had not come forward
 to file the certified copy of the statement of
 account.

Hence it shouled be presumed that the applicant 
bank  had not  to filed any  statement of  account
and hencethe present application has to be 
rejected in limini.

If the interest is calculated wrongly and the amount
 claimed  as Rs 38,74,058.40 instead of Rs92,76,146-49 
the matter is to be referred to RBI for enquiry.

It is not known how a nationalized bank
 had filed the annual 
returns as the said returns are taken on
 file with out any objections.

The Applicant can not file an application for
 amendment in the claim since the 
original application in the year 2002and
 further the pleadings are completed and written
 submissions are also filed by the bank and at this 
stage the bank can not file an application for amendment.

The defendants submit that there are no merits in 
the present application and the same is lible 
to be rejected in limini.

Furter the bank is to be directed to file a certified copy
of the statement of  account before this Tribunal 
failing which the Original Application may be dismissed
with costs.

The defendants prayed for dismissing the application 
as devoid of merits.

4. Heared the Ld. Counsel for the Rival parties.

The applicant herein admittedly filed OA for recovery
 of Rs 38,74,958-40Ps based on the 
statement of  account filed by it.

According to the Learned Counsel for the 
applicant, the defendants have availed two facilities
 i.e.(1)Cash Credit and (2) Term loan.

The Cash Credit account according tto the applicant
turned to NPA on 30-6-1997 and the Term Loan
 on 30-6-1993.

According to the RBI prudential norms relating to 
Income recognition,Asseet Classification and Provisioning,
if one facility slips to NPA,the other facility
even though they are performing assets also automatically
slip to NPA as the NPA concept must be borrowerwise 
and not facilitywise.

Hence the Trm Loan facility is deemed to be slipped
 to NPA on 30-6-1993.

When a loan account becomesb NPA the lender has to 
reverse the entries in the books and stop debiting in the
books with interest accrued.

It is meant for internal accounting norms and does not mean
 that the interest accured subsequent to
the classification of account as NPA can not be Claimed,

Hence while filing the claim the banks are entitled to 
claim the amount in the book entry plus undebited portion 
of the accrued  interest subsequent to classification.

In The Present case the  bank submits that while
 filing the claim only the amount entered in the 
book is claimed without adding the undebited
portion of interest and therefore the claim of the bank
 should be for Rs 92,76,146.49 instead of Rs 38,74,958.40
 and hence prayed for permission for 
amemendment of OA claim.

The respondents/defendants strongly opposed
 the petition on the ground that unless the bank 
files statement of account as per bankers book 
of evidence act the same can not be treated as
 statement of accounts and pending proceedings,
the petitioner also filed another set of statement
and the contention that petitioner filed statement 
can not be accepted and the petitioner is put to strict 
proof of the same.


It is further contented that even as on the date of 
filing this petition the petitioner has not filed 
certfied copy of the statement of account to prove
 their alleged claim.

Moreover it is vehimently contented that the OA was 
filed in the year 2002 and further proceedings are 
completed and written submissins are also filed by 
the petitioner and at this stage the application 
for amendment can not be filed and contended that
 if the certified copy of statement of account
is not filed the claim of the bank itself is 
liable to be dismissed with cost.

I am of the view that if the amemendment permitted 
does not change the scop of the claim.

Further the pleadings of the applicant are to
 be strictly proved with evidance i.e. the certified
copy of theaccount by the applicant bank.

It is true that if the evidence is not produced
as per therequirement of law, no relief can be granted.

At this stage of amendment evidence need not be 
considered since evidence follows after amendment of 
pleadings.

Hence subject to production of admissible
evidence the amendment is allowed.

However the Applicant bank has
 taken 8years to
make this application.

Hence it is appropriate that the application be
ordered for amendment subject to payment of cost .

5. In the result the I A 351/2009 and IA 352/2009
are allowed permitting the amendments subject to
payment of cost of Rs 5000/- to" The  Banyan" 
(a charitable organisation for mentally retarded woman)
within two weeks from the date of this order.

6.Call the OA for filing amendmened OA on 31-12-2010.

   The Registry is directed to comunicate copy
of the order to the parties concerened by 
speed post or registered post with AD.


( Dictated to the court master,transcribed by him
and after necessary correctons, signed and
pronounced by me in the open court on this
30th day of November 2010 )


 Sd/-

C P S Ramacharyulu
Prisiding Officer

30-11-2010


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