UNION BANK OF INDIA vs SRI SANJAY PODDAR on 20 February 2025

1. 1. **Sri Sanjay Poddar**, Son of Sri Nirmalya Poddar, having its residence at 131, P.K. Guha Lane, P.O. + P.S.- Dum Dum, Kolkata – 700028, District – North 24-Parganas, West Bengal.

2. 2. **Smt. Sagarika Poddar**, Wife of Sri Sanjay Poddar, having its residence at 131, P.K. Guha Lane, P.O. + P.S.- Dum Dum, Kolkata – 700028, District – North 24-Parganas, West Bengal.

.. .. Defendants

Counsel for parties:

For the Applicant Bank : Ms. Smruti Rekha Mishra For the Defendants : *Ex-Parte***FINAL ORDER / JUDGMENT**

Delivered on 20.02.2025

Applicant (Union Bank of India), erstwhile Corporation Bank, instituted the present Application being the Original Application No.915 of 2018 filed in DRT-3, Kolkata on 09.11.2018 against two Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.11,80,243.00 (Rupees eleven lacs eighty thousand two hundred forty three) as on 26.10.2018 together with further interest @ 9.65%, 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 13.11.2019 and the same has been renumbered as T.A./ 525 of 2020 vide Ld. Registrar's order dated 21.10.2020.

2. Corporation Bank has been merged / amalgamated into Union Bank of India vide Gazette Notification dated March 04, 2020, issued by the Government of India published under Extraordinary Part-II, Section 3, sub-section (i) in the Gazette of India in terms of Section 9 of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970. In view of the merger / amalgamation of Corporation Bank into Union Bank of India, the Applicant Name in this case should be read / inserted as Union Bank of India instead of Corporation Bank.

3. In accordance with the Notice dated 30.07.2020 of this Tribunal, Ld. Advocate of the Union Bank of India has filed a petition being I.A./295 of 2020 praying for amendment of Cause Title in view of amalgamation of Corporation Bank with Union Bank of India vide G.O.I. Notification dated 04.03.2020; and in accordance with the direction of the Tribunal necessary amendment in cause title has been carried out by Ld. Advocate of the applicant Bank on 17.12.2020, such has been recorded in Ld. Registrar's order dated 17.12.2020.

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

- (i) That the Defendants No.1 & 2 are the borrower and executed and delivered banking & security documents in favour of applicant Bank.

- (ii) At the request of defendants No.1 & 2 vide an application dated 01.12.2015, applicant Bank was pleased to grant / sanction a Home Term Loan to the limit of Rs.11,50,000/- (Rupees eleven lacs fifty thousand) in favour of defendants vide sanction communication dated 10.01.2016 which was duly accepted and acknowledged by the defendants; copies of loan application dated 01.12.2015 and sanction letter dated 10.01.2016 are annexed and marked as Annexure 'A-1' & 'A-2' respectively.

- (iii) In acknowledgement of granting the said Corp. Home Loan facility of Rs.11.50 lakhs availed by Defendants, the defendants executed the following loan documents all dated 07.03.2016:

- (a) Agreement for Term Loan;

- (b) Memorandum of Agreement;

- (c) Letter of Undertaking.

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

(iv) To secure the aforesaid Home / Term Loan facility of Rs.11.50 lakhs, the defendant No.1 created equitable mortgage in respect of his immovable property; described in Schedule at page 22 and para 3A at page 7 to 9 of the O.A., by depositing title deed being No.2348 for the year 2016 with the applicant Bank, registered before Additional District Sub-Registry Office at Cossipore, Dum Dum, District – 24-Pargas (North); copy of said Deed being No.2348 for the year 2016 is annexed and marked as Annexure 'A-6'. Further, the defendant No.1, Sri Sanjay Poddar confirmed the creation of equitable mortgage of immovable property (Flat) by executing Memorandum of deposit of Title Deed(s) dated 24.03.2016 in favour of applicant Bank; copy of said Memorandum of deposit of Title

Deed(s) dated 24.03.2016 is annexed and marked as Annexure 'A-7'. The applicant Bank got valued the said immovable property through its empanelled valuer of the Bank and the said valuer submitted its report; copy of said valuation report is annexed and marked as Annexure 'A-8'.

5. The Defendants enjoyed the aforementioned loan facility by opening Account in Bank's South Dum Dum Branch, 18/1, Manujendra Dutta Road, Dum Dum Cantonment, Dist.- 24-Parganas (North). However, the defendants failed and neglected to abide by the terms and conditions of the facility. The Defendants did not repay the agreed EMIs and overdue interests in loan Account. Inspite of repeated requests and personal contact made by the applicant Bank, the defendants failed to regularize the loan Account. Since the defendants did not pay any attention to regularize the Account, the Account became out of order and was classified as N.P.A. on 31.12.2017. Applicant Bank finding no other alternative issued a re-call, demand and notice dated 05.11.2018 upon the defendants demanding to pay the outstanding Bank's dues, but the defendants did not comply the said notice; copy of notice dated 05.11.2018 is annexed and marked as Annexure 'A-9'. Certified copies of Statement of Account along with Certificate under Bankers' Books of Evidence Act, with Statement of Claim, have been filed to show and prove the dues (Annexure 'A-10'), and future interest @ 9.65% per annum with monthly rests, till realization of the entire due in full, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

6. The notices / summons were sent to the Defendants No.1 & 2 by the Tribunal. It is observed that service of Notices / summons upon the Defendants by postal service and/or hand delivery were not successfully effected, such has been recorded vide Ld. Registrar's order dated 23.11.2022. At the request of Ld. Advocate of the applicant Bank, Ld. Tribunal is directed to serve the summons upon the defendants by way of substitute service, i.e. paper publication; and Ld. Advocate of the applicant Bank has brought on record the affidavit of service on publication dated 05.07.2024 along with relevant portion of paper cuttings in two newspapers, namely (i) 'Times of India' in English and (ii) 'Bartaman' in Bengali, both dated 29.06.2024; hence service of summons upon both the defendants is complete through paper publication. 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 11.07.2024. Ld. Advocate of the applicant Bank praying for amendment of Cause Title in view of amalgamation of Corporation Bank with Union Bank of India vide G.O.I. Notification dated 04.03.2020; and in accordance with the direction of the Tribunal necessary amendment in cause title has been carried out by Ld. Advocate of the applicant Bank on 17.12.2020. Ld. Advocate of the applicant Bank submitted arguments on 20.01.2025.

7. Applicant Bank has filed the evidence-on-affidavit affirmed by Saurav Anand, Branch Manager of erstwhile Bank's South Dum Dum Branch, Dum Dum Cantonment, District – 24-Parganas (North), Kolkata – 700028 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 the original documents have been returned to Mr. Naqui Imam, Manager of Bank's Regional Office, 2 Middleton Row, Park Street, Kolkata – 700071 on 27.04.2022, such has been recorded in Ld. Registrar's order dated 27.04.2022. The documents produced by the applicant Bank are exhibited and annexed at 'A-1' to 'A-10'.

I have heard the Ld. Counsel for the Applicant Bank and perused the records.

8. 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 Loan of Rs.11.50 lakhs vide sanction communication dated 10.01.2016. Applicant Bank has proved the equitable mortgaged of immovable property; described in Schedule at page 22 and para 3A at page 7 to 9 of the original application.

9. On the point of limitation, Loan has been sanctioned on 10.01.2016; documents have been executed on 07.03.2016; original Application has been filed on 09.11.2018. As such, the original Application appears to have been filed well within the period of limitation.

10. Applicant Bank has stated that the outstanding balance in loan Account (inclusive of accrued interest and other charges as calculated upto 26.10.2018) is **Rs.11,80,243.00** (Rupees eleven lacs eighty thousand two hundred forty three) as on 26.10.2018, 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 @ 9.65% per annum, while in sanction letter dated 10.01.2016 the same rate of interest, i.e. @ 9.65% per annum, has been mentioned. The defendants / borrower(s) have taken the loan for purchase of a Flat / house; therefore, in my view the *pendente lite* & future rate of interest @9.65% per annum, simple, from 27.10.2018, is allowed.

11. 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./525 of 2020 (arising out of O.A./915 of 2018) deserves to be allowed; hence allowed.

12. In view of the above, I pass the following order :- 5T.A./525 of 2020 – DRT-2/KolORDER

(i) T.A./525 of 2020 (arising out of O.A./915 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.11,80,243.00** (Rupees eleven lacs eighty thousand two hundred forty three) due and payable, inclusive of interest and other charges as calculated upto 26.10.2018; and interest for the period *pendente lite* and future rate @ 9.65% per annum, simple, from 27.10.2018, 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 mortgage immovable property; described in Schedule at page 22 and para 3A at page 7 to 9 of the original application, are as under –

"ALL THAT the self contained independent residential flat on the third floor, front side, measuring a super built up area of 790 (Seven hundred Ninety) sq.ft. more or less consisting of 2 bed room, 1 dining room, 1 kitchen, 1 toilet, with marble flooring undivided portion at 2 cottah 4 chittack 5 sq.ft., Mouza – Gouri, J.L. No.16, R.S. No.24, Touzi – 172, R.S. Dag No.52, 53 & 61, under Khatian No.283, 310/1, corresponding to LR Dag No.130, L.R. Khatian No.707, Holding No.115, Vivekananda Pally, Kolkata – 700065, Ward No.2, Jurisdiction – Dum Dum Police Station, Dist.- North 24-Parganas, Registered before Additional District Sub-Registry Office at Cossipore Dum Dum, District of 24-Parganas (North), Registered before A.D.S.R. Cossipore Dum Dum, recorded in Being No.-2348 for the year 2016, stand in the name of Sri Sanjay Poddar."

The Defendants No.1 & 2 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.

(iv) The defendants No.1 & 2 are given a time of sixty 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./525 of 2020 (arising out of O.A./915 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 20^th day of February, 2025.

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

(Arbind Madhav) Presiding Officer DRT-2, Kolkata

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