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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