UCO BANK vs MR KAMALENDU TALUKDAR on 18 February 2025

Page.No.

KOLKATA DEBTS RECOVERY TRIBUNAL NO. 2

ORDER SHEET

(Continuation)

UCO Bank

T.A./499 of 2020

Case No. \_\_\_\_\_

\_\_\_\_\_ Vs Mr. Kamalendu Yalukder & Anr.

<table border="1"><thead><tr><th data-bbox="132 217 208 281">Date of Order</th><th data-bbox="208 217 768 281">Order with Signature</th><th data-bbox="768 217 895 281">Office action with date and dated Signature of parties when necessary</th></tr></thead><tbody><tr><td data-bbox="132 281 208 921"><p>21<br/>18.02.2025</p></td><td data-bbox="208 281 768 921"><p>Counsel for the parties:<br/>Mr. Dilip Kumar Jha, Ld. Advocate for the applicant Bank.<br/>None for the defendants.<br/>T.A./499 of 2020 (arising out of O.A./987 of 2018) is allowed and disposed of.<br/>Final order / Judgment is in separate sheet of 5 pages.<br/>File be consigned to record room.<br/>Order be uploaded on the Tribunal's website.</p><p style="text-align: right;"><br/>(Arbind Madhav)<br/>Presiding Officer<br/>DRT-2, Kolkata</p></td><td data-bbox="768 281 895 921"></td></tr></tbody></table>

1

T.A./499 of 2020 – DRT-2/Kol

**DEBTS RECOVERY TRIBUNAL - 2, KOLKATA**

Jeevan Sudha Bldg. 07^th Floor, 42/C, J.L. Nehru Road, Kolkata – 700071

Before Shri Arbind Madhav, Presiding Officer **T.A. No. 499 of 2020**

(arising out of O.A./987 of 2018)

In the matter of -

**UCO Bank**, a body corporate duly constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, having its Registered Office at 10, B.T.M. Sarani, Kolkata – 700001; and carrying on business, *inter-alia*, at its Ballygunge Branch, 15/1A, Gariahat Road, P.S.- Gariahat, District – South 24-Parganas, Kolkata – 700019.

..... Applicant Bank

-Versus-

- 1. **Mr. Kamalendu Talukder**, son of Mr. Kumud Behari Talukder, residing at A-67, Diamond Park, Joka, P.S.- Thakurpukur, District – South 24-Parganas, Kolkata – 700104.

- 2. **Mrs. Dipa Majumder (Talukder)**, wife of Mr. Kamalendu Talukder, residing at A-67, Diamond Park, Joka, P.S.- Thakurpukur, District – South 24-Parganas, Kolkata – 700104.

..... Defendants

Counsel for parties:

For the Applicant Bank : Sri Dilip Kumar Jha For the Defendants : *Ex-Parte*

**FINAL ORDER / JUDGMENT**

Delivered on 18.02.2025

Applicant, UCO Bank instituted the present Application being the Original Application No.987 of 2018 filed in DRT-3, Kolkata on 11.12.2018 against two Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.38,83,629.00 (Rupees thirty eight lacs eighty three thousand six hundred twenty nine) as on 30.11.2018 with interest thereon @ 8% per annum with monthly rests, till realization of the entire due in full. Subsequently, the instant case has been transferred to DRT-2, Kolkata vide the Hon'ble Chairperson DRAT, Kolkata's direction vide letter No.4/6/DRAT/KOL/2018(pt.) dated 16.09.2019, such has been recorded vide Ld. Registrar, Kolkata DRT-3's Order dated 30.12.2019 and the same has been renumbered as T.A./499 of 2020 vide Ld. Registrar's order dated 13.07.2020.

2. The brief facts of the case as set out by the Applicant Bank in its Original Application, as under:

(i) That the Defendant No.1 was the employee of the applicant bank and the borrower, and the defendant No.2 is the guarantor and wife of defendant No.1. At the request of defendant No.1 by their loan Application dated 10.12.2015, applicant Bank was pleased to grant / sanction a Home / Term Loan of Rs.34,27,000/- (Rupees thirty four lacs twenty seven thousand) in favour of the defendant No.1 by way of Staff Housing Loan, vide sanction letter dated 28.12.2015. Copy of said loan application dated 10.12.2015 and sanction letter dated 28.12.2015 are annexed and marked as Annexure 'A-1' & 'A-2' respectively. The said loan was to be repaid in 250 EMIs @ Rs.18,230/- per month commencing from February 2016.

(ii) In acknowledgement of granting the said home loan facility of Rs.34.27 lakhs, the defendants executed and delivered the following security documents all dated 28.12.2015:

- (a) Agreement relating to Housing Loan for Rs.34,27,000/-;

- (b) Demand Promissory Note for Rs.34,27,000/-;

- (c) Undertaking to pay debts and liability for Rs.34,27,000/-;

- (d) Letter of guarantee for Rs.34,27,000/-.

Copies of said documents are annexed and marked as Annexure 'A-3', 'A-4', 'A-5' and 'A-6' respectively.

(iii) In consideration of the aforesaid term loan granted to the defendant No.1 by the applicant bank, the defendants created equitable mortgage in respect of their immovable property (Flat), morefully described in Schedule (Annexure P) at page 17 and para 3A at page 4 to 6 of the O.A., by depositing the Deed of Conveyance being No.00365 for the year 2016, registered in the office of District sub-Registrar – V at Alipore, South 24-Parganas in favour of the applicant Bank. Copy of said Deed of Conveyance is annexed and marked as Annexure 'A-7'.

3. The Defendants enjoyed and utilized the said credit facility by opening Account in Bank's Ballygunge Branch, 15/1A, Gariahat Road, Kolkata – 700019. Applicant Bank disbursed the said loan amount in favour of defendants on 30.01.2016. However, the defendants failed and neglected to abide by the terms and conditions of the facility. The Defendants did not repay the outstanding Bank's dues and overdue interests in loan Account. Since the defendants did not pay any attention to regularize the Account in spite of repeated requests made by the applicant Bank, the account became out of order and was classified as N.P.A. on 31.08.2017. Considering aforesaid default and violation of the terms and conditions of the credit facility, the applicant Bank was compelled to issue demand Notice U/s 13(2) of the Sarfaesi Act, 2002 dated 12.02.2018 upon the defendants demanding to pay the outstanding dues amount of Rs.35,34,322/- as on 31.08.2017, but the defendants did not comply with the said notice. Copy of said demand notice dated 12.02.2018, postal receipts and duly signed A/D card are annexed and marked as Annexure 'A-9', 'A-10' and 'A-11' respectively. Certified copies of Statement of Account along with Certificate under Bankers' Books of Evidence Act, with interest calculation sheet, have been filed to show and prove the dues (Annexure 'A-8'), and future interest @ 8% per annum with monthly rests from 01.12.2018, till realization in full plus penal interest @ 2% per annum, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

4. The notices / summons were sent to the Defendants No.1 & 2 by the Tribunal; service of Notices / summons upon both the Defendants by postal service and/or hand delivery have been successfully effected, such has been recorded vide Ld. Registrar's order dated 08.02.2023. Despite service, the defendants did not appear nor filed the written statement; thus, both the defendants were ordered to be proceeded *ex-parte* vide order dated 28.03.2024. Applicant Bank has filed the written notes of argument on dated 20.08.2024 wherein stated the brief facts of the case as has been narrated in original application. Ld. Advocate of the applicant Bank has submitted arguments on 16.01.2025.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Manoj Kumar Sahu, Asstt. General Manager and Constituent Attorney of Bank's Ballygunge Branch, 15/1A, Gariahat Road, Kolkata – 700019 along with the copy of original documents executed by the Defendants. Original documents have been produced by the applicant Bank; the same have been verified with copies of the documents annexed with O.A., and after verification the original documents have been returned to Sri Manoj Kumar Sahu, Asstt. General Manager of Bank's Ballygunge Branch, 15/1A, Gariahat Road, Kolkata – 700019 on 07.12.2018, such has been recorded in Ld. Registrar's order dated 05.08.2019. The documents produced by the applicant Bank are exhibited and annexed as Exhibit 1 to 12.

I have heard the Ld. Advocate of the applicant Bank and perused the records.

6. Evidence-on-affidavit, filed by applicant Bank, has remained unchallenged, un-rebutted and its veracity cannot be put to dispute. Applicant Bank has corroborated the averments made in the O.A. Applicant Bank has proved the sanction of Home / Term Loan facility of Rs.34.27 lacs vide sanction letter dated 28.12.2015. Applicant Bank has proved the creation of equitable mortgage of immovable property; morefully described in Schedule (Annexure P) at page 17 and para 3A at page 4 to 6 of the original application.

7. On the point of limitation, Loan has been sanctioned on 28.12.2015; documents have been executed on 28.12.2015; original Application has been filed on 11.12.2018. As such, the original Application appears to have been filed well within the period of limitation.

8. Applicant Bank has stated that the outstanding balance in Term / Home Account (inclusive of accrued interest and other charges as calculated upto 30.11.2018) for a sum of **Rs.38,83,629.00** (Rupees thirty eight lacs eighty three thousand six hundred twenty nine) as on 30.11.2018, which is the amount claimed by the applicant Bank in the original Application, and the defendants No.1 & 2 are, jointly and/or severally, liable to repay the said amount to the applicant Bank with *pendente lite* and future interest, till realization. I allow the claim as made by the applicant Bank in the original Application. Applicant Bank has prayed future interest @ 8% per annum, while in the Demand Promissory Note dated 28.12.2015 the same rate of interest, i.e. @ 8% per annum with monthly rests, has been mentioned. It is observed that the defendants / borrower(s) have taken the loan for purchase of a residential flat; therefore, in my view, the *pendente lite* & future rate of interest which has been claimed by the applicant Bank in original application, i.e. @ 8% per annum, simple, from 01.12.2018, is allowed.

9. The matter also falls within the territorial as well as pecuniary jurisdiction of this Tribunal. The Applicant Bank has proved to claim made in the O.A./T.A. The T.A. being T.A./499 of 2020 (arising out of O.A./987 of 2018) deserves to be allowed; hence allowed.

10. In view of the above, I pass the following order :-

ORDER

(i) T.A./499 of 2020 (arising out of O.A./987 of 2018), filed by the applicant Bank, is allowed and debt is determined with cost against the Defendants No.1 & 2. It is hereby ordered that the Defendants No.1 & 2 are hereby directed to pay, jointly and / or severally the total debt amount of **Rs.38,83,629.00** (Rupees thirty eight lacs eighty three thousand six hundred twenty nine) due and payable, inclusive of interest and other charges as calculated upto 30.11.2018; and interest for the period *pendente lite* and future rate @ 8% per annum, simple, from 01.12.2018, till realization of the entire sum due and recoverable.

(ii) Amount, if any, paid by the Defendants in the loan account or amount, if any, recovered by the Applicant Bank after filing of the Original Application, the same may be taken into account while arriving at the exact amount of dues/debt payable by the Defendants. Accordingly, the *pendente lite* and future interest shall be calculated on the reduced amount.

(iii) The defendants No.1 & 2 are debarred from transferring, alienating, encumbering or disposing of the mortgaged immovable property; morefully described in Schedule (Annexure P) at page 17 and para 3A at page 4 to 6 of the original application, as under –

"ALL THAT piece and parcel of a flat within Upohar LIG-MIG Zone, being Flat No.UPC010905 having super built-up area 836 sq.ft. on 9^th Floor and one covered car parking space No.ECB18 measuring about 135 sq.ft. on ground floor lying and situated at Mouza – Chakgaria, J.L. No.26, being Premises No.2052, Chakgaria, Police Station – Purba Jadavpur now Panchasayar, Kolkata – 700094, under Kolkata Municipal Corporation, Ward No.109, District – South 24-Parganas."

The Defendants is also debarred from transferring, alienating, encumbering or disposing any other property(s) either movable or immovable and assets belonging to them till the aforesaid adjudicated debt amount are recovered from the Defendants No.1 & 2.

(iv) The defendants No.1 & 2 are given a time of forty-five days from the date of this Final Order / Judgment for repayment of the above mentioned dues, so intimated to them. In case the Defendants fail to pay the dues within the above mentioned time, the Applicant Bank is entitled to recover its dues by sale of secured properties, as aforesaid. Applicant Bank is also entitled to proceed against personal properties of the Defendants No.1 & 2 both moveable and immoveable and also proceed against the Defendants No.1 & 2 personally to recover the dues, in accordance with law.

(v) Let the Certificate of Recovery be drawn up by Ld. Registrar forthwith in terms of Final Order / Judgment for issuance of the same against the Defendants No.1 & 2 in favour of Applicant Bank under Section 19(22) of the Recovery of Debts and Bankruptcy Act, 1993 (amended from time to time) and put up the same for signature for issuance.

(vi) Ld. Recovery Officer shall realize the amount as per the Recovery Certificate from the Defendants No.1 & 2, in accordance with law.

(vii) Ld. Registrar of this Tribunal is directed to place Recovery Certificate in terms of this Final Order / Judgment under section 19(22) of the Act of 1993.

**Accordingly, the Original Application, being T.A./499 of 2020 (arising out of O.A./987 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 18^th day of February, 2025.

Copy of the Final Order / Judgment be uploaded in the Tribunal's Website.

(Arbind Mahapatra) Presiding Officer DRT-2, Kolkata

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