- (1.) This appeal is directed against the order of D. R. T. dated 15th September, 2005. The learned D. R. T. issued the recovery certificate in favour of the respondent bank for a sum of Rs. 79,82,568. 86 to gether with pendent elite and future interest @ 13. 84% per annum with quarterly rests with costs against the defendant Nos. 1 to 3, who are arrayed as ap pellants in this case, on the application moved by the bank under section 19 of R. D. D. B. F. I. Act, 1993.
(2.) In the appeal, appellants have made the following key averment. The action taken by the bank for recovery of their dues was at a premature stage. The recovery application was filed without declaring the account 'non Performing Asset' (in short N. P. A. ). The R. B. I, has made certain norms for declaring an account as N. P. A. and the said norms are the directives, which are required to be followed strictly by the banks and other financial institutions be fore initiating the proceedings for recovery of their dues. Further more, an ac count can be declared as N. P. A. if the period of six months has elapsed from the last entry made in the book of accounts. IN the instant case, the said directive was given the go by. IN the instant case, the last entry was made on 25th November, 2002 and the original application for recovery was filed on 29th November, 2002 just after four days. The case of the bank as it appears in the application for recovery of debt filed before the D. R. T. is that "however in spite of repeated personal demand and aforesaid legal notice, the defendant Nos. 1, 2 and 3 have failed to pay the same, hence this application before the Hon'ble Tribunal". The appellants replied that the dates of reminders were not given. Again, how many reminders can be sent between 25th November, 2005 to 29th November, 2005. It was contended that no reminder was ever sent. Secondly, there is no finding by the Court on the contention raised by the appellants that their signatures were forged. The argument urged by the learned Counsel for the appellants has two short prongs. Firstly he submitted that the recovery suit filed by the bank is not maintainable because it failed to declare the accounts of appellants as Non Performing Assets. For the following reasons, this argument has to be eschewed out of con sideration. Counsel for the appellant could not bring to the notice of the Court any law, any provision, or any order, norms or directives passed/issued by the R. B. I. It appears that the Counsel for the appellants was confusing the provi sion of the "the S. R. F. A. E. S. I. Act, 2002" with the provisions of section 19 of the R. D. D. B. F. I. Act, 1993. Secondly, in the application under section 19 of the R. D. D. B. F. I. Act, 1993 the bank made the following averments. A legal notice dated 1st November, 2002 was given to the appellants, wherein they were asked to re pay the outstanding amount in all the said accounts. However, in spite of re peated personal demand and the aforesaid legal notice, the appellants had failed to pay the same, therefore, the above said application was filed. It was further pleaded that the appellants were very irregular in repayment of the aforesaid due amount and account of the defendant No. 1 became very sticky in operation. Again, in accordance with income recognition assets classification and provisioning norms of R. B. I. , the applicant bank classified all the account as Non-Performing Assets (N. P. A.) and stopped charging of interest from 25th November, 2002.
(3.) The appellants proved legal notice exhibit No. A-45 before the learned Tribunal. Its paras 8,10 and 12 are reproduced as follows :- "8. However, after availing, utilizing and enjoying the abovementioned credit facilities, you, the above named addressee No. 1, in total disregard of the terms and conditions of the sanction failed to adhere to the financial discipline of my client and failed to regularize the said credit fa cilities account in spite of repeated requests, reminders and personal fol low-ups of my client. 10. However you the abovementioned addressees, despite admitting your liability with respect to the above-mentioned credit facilities and undertaking to liquidate the outstanding dues in the said credit facilities account, have failed and neglected to clear the entire outstanding dues of my client. Since, you, the above named addressee Nos. 2 and 3 are the guar antor for the payment of the dues of my client in the above mentioned credit facilities account, the liability of you, the abovementioned addressees is joint and several. 12. Now I, therefore, call upon you, all the above named addressees, to pay to my above named client a sum of Rs. 1,16,13,809/- (Rupees one crore sixteen lacs thirteen thousand eight hundred and nine only) with respect to the cash credit account and a sum of Rs. 1,71. 89,290. 00 (One crore seventy-one lacs eighty-nine thousand two hundred and ninety only) with respect to the over draft account due to my client from you, the above named addressees along with interest at the rate of 13. 84% per annum with monthly rests from 1st November, 2002, with respect to the cash credit ac count and interest at the rate of 12. 86% per annum with monthly rests from 1st November, 2002, with respect to the overdraft account and other charges accruing thereon till the date of payment of entire sum with a sum of Rs. 2,500. 00 being the notice charges for this notice within seven days of the receipt of this notice, failing which my client without any further reference to you, shall be constrained to pursue any available legal remedy in the nature of criminal and/or civil proceedings and the same shall be at your costs, risk and expenses. " The respondent also proved statement of accounts exhibit A-46 in sup port of its case. The Counsel for the appellants could not find out any flaw therein.;