CANARA BANK vs SRI ADITIYA DEY SARKAR on 2 July 2025

1. 1. **Sri Aditya Dey Sarkar**, Son of Adhir Dey Sarkar, Proprietor of M/s India Exports Creation, 8A/2, Ganesh Ghosh Lane, Kolkata – 700039, and also at 175, Rajdanga Shantipally, Haltu, Kolkata – 700107.

2. 2. **Smt. Sayanti Dey Sarkar**, Wife of Aditya Dey Sarkar, residence of 175, Rajdanga Shantipally, Haltu, Kolkata – 700107.

..... Defendants

Counsel for parties:

For the Applicant Bank : Ms. Sangeetha Ghosh. Amicus Legal Associates.

For the Defendants : *Ex-Parte*

**FINAL ORDER / JUDGMENT**

Delivered on 02.07.2025

Applicant, Canara Bank instituted the present Application being the Original Application No.164 of 2018 filed in DRT-3, Kolkata on 12.03.2018 against two Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.59,23,958.35 (Rupees fifty nine lacs twenty three thousand nine hundred fifty eight and paise thirty five) as on 31.01.2018 together with further interest thereon @ 12.15% per annum, till realization of the entire dues. 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 17.10.2019 and the same has been renumbered as T.A./ 101 of 2019 vide Ld. Registrar's order dated 28.10.2019.

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

③

(i) The defendant No.1 is the sole proprietor of proprietorship concern, namely M/s India Exports Creation doing business as manufacturer and exports of leather goods; the defendant No.2 is the guarantor for defendant No.1 and has executed Guarantee Agreement. That the Defendant No.1 had approached and applied the applicant Bank in the month of February 2015 for availing a cash credit facility in the nature of 'Loans to Micro and Small Enterprises' for an amount of Rs.45,00,000/-; copy of loan application dated 20.02.2015 is annexed and marked as Annexure 'A'. Relying upon representation made by defendant No.1, applicant Bank was pleased to grant / sanction a cash credit facility for an amount of Rs.45,00,000/- (Rupees forty five lacs) in favour of the defendant No.1 vide sanction Memorandum dated 20.02.2015. The defendant No.1 duly signed and acknowledged the receipt of the said sanction Memorandum. Copy of said sanction Memorandum dated 20.02.2015 is annexed and marked as Annexure 'B'.

(ii) In consideration of the aforesaid cash credit facility of Rs.45.00 lakhs, the defendant No.1 executed the following security documents all dated 20.02.2015 in favour of applicant Bank:

- (a) Letter of Proprietorship dated 20.02.2015 duly signed and executed by defendant No.1 and informing Bank that defendant No.1 is the sole Proprietor of M/s Indian Exports Creation;

- (b) Request for overdraft facilities for Rs.45.00 lakhs;

- (c) Promote for the amount of Rs.45,00,000/-;

- (d) Cash Credit Agreement duly signed and executed by defendant No.1 for an amount of Rs.45.00 lakhs..

Said documents are annexed and marked as Annexure 'C-1' to 'C-4'.

(iii) To secure the aforesaid cash credit facility of Rs.45.00 lakhs granted to defendant No.1, the defendant No.2 had executed and delivered a Guarantee Agreement dated 20.02.2015 in favour applicant Bank unconditionally guaranteeing due repayment to the extent of Rs.45.00 lakhs. The guarantee shall be a continuing guarantee. Copy of the Guarantee Covering letter along with duly executed Guarantee Agreement by defendant No.2 dated 20.02.2015 is annexed and marked as Annexure 'D'.

(iv) The defendant NNo.1 again approached the applicant Bank in the month of April 2016 with a request for renewal of cash credit facility for the amount of Rs.45,00,000/-; copy of loan Application dated 25.04.2016 is annexed and marked as Annexure 'E'. Relying upon the application, applicant Bank was pleased to renew / sanction the cash credit facility for an amount of Rs.45,00,000/- (Rupees forty five lacs) vide sanction Memorandum dated 25.04.2016. The defendant No.1 duly accepted and agreed the terms and conditions of said renewal / sanction. Copy of said sanction Memorandum along with the Specimen Signature dated 25.04.2016 is annexed and marked as Annexure 'F'.

(v) In consideration of the aforesaid renewed credit facility of Rs.45.00 lakhs, the defendant No.1 executed the following security documents in favour of applicant Bank:

(a) Letter of Proprietorship dated 25.04.2016 duly signed and executed by defendant No.1 and informing Bank that defendant No.1 is the sole Proprietor of M/s Indian Exports Creation; (b) Letter of Renewal dated 25.04.2016 for an amount of Rs.45,00,000/- duly executed by defendant No.1.

Said documents are annexed and marked as Annexure 'G-1' & 'G-2'.

(vi) Further, the defendant No.1 duly executed an Acknowledgement of Debt and Security dated 25.04.2016 for an amount of Rs.45,09,841.24 as on 25.04.2016 acknowledging the debt in the cash credit Account. Copy of said Acknowledgement of Debt & Security dated 25.04.2016 is annexed and marked as Annexure 'H'.

3. The Defendants availed and enjoyed the said cash credit facility by opening Account in Bank's Garia Main Branch, Tentultala Garia, Kolkata – 700084. 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. 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 irregular and was classified as N.P.A. on 19.10.2016. Applicant Bank finding no other alternative and issued a re-call demand notice dated 22.05.2017 through their Advocate demanding to repay the outstanding dues amount of Rs.51,19,233.35, but the defendants did not comply the said notice; copy of said re-call demand notice dated 22.05.2017 along with postal receipts are annexed and marked as Annexure 'I'. 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 'J' & 'K') together with future interest @ 12.15% per annum from 01.02.2018, till realization in full by the defendants, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

4. The notice / summons were sent to the Defendants No.1 & 2 by the Tribunal. It is observed that the service of Notices / summons by postal service and also attempt to carry-out hand service of summons upon the defendants did not succeed, such has been recorded vide Ld. Registrar's order dated 09.02.2021. At the request of Ld. Advocate of the applicant Bank, Ld. Tribunal is directed to serve the summons upon both the defendants by way of paper publication; and Ld. Advocate for applicant Bank has brought on record the affidavit of service on publication dated 25.04.2023 upon the Defendants along with relevant portion of paper cuttings in two newspapers, namely (i) 'The Indian Express' in English and (ii) 'Bartaman' in Bengali, both dated 02.07.2022, such has been recorded vide Ld. Registrar's order dated 25.04.2023. 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 08.02.2024. Written notes of arguments has been filed by the applicant Bank on 03.07.2024 wherein stated the brief facts of the case as has been narrated in the original application. Ld. Advocate of the applicant Bank has submitted arguments on 03.07.2024.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Sri Abinash Kumar, Manager of Bank's Garia Branch, 167, Garia Main Road, Tentultala Garia, Kolkata – 700084 along with the copy of original documents executed by the Defendants. Original documents have been produced by 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 Abinash Kumar, Manager of Bank's Garia Branch, 167, Garia Main Road, Kolkata – 700084 on 15.06.2018, such has been recorded in Ld. Registrar, DRT-3's order dated 15.06.2018. The documents produced by applicant Bank are exhibited and annexed at 'A-1' to 'A-14'.

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, unrebuted and its veracity cannot be put to dispute. Applicant Bank has proved the averments made in the O.A. Applicant Bank has corroborated the averments made in the O.A. Applicant Bank has proved the sanction of cash credit facility for an amount of Rs.45,00,000/- vide sanction Memorandum dated 20.02.2015 and renewed the said facility vide sanction Memorandum 25.04.2016. Applicant Bank has proved the hypothecation of movable assets, described in Schedule 'A' & 'B' at page 19 & 20 and para 3A at page 4 & 5 of the original application.

7. On the point of limitation, Loan has been sanctioned on 20.02.2015, and subsequently renewed on 25.04.2016; security documents have been executed on 20.02.2015 & 25.04.2016 and original Application has been filed on 12.03.2018. Further, the defendant No.1 duly executed an Acknowledgement of Debt and Security dated 25.04.2016 in favour of applicant Bank acknowledging the outstanding balance in loan Account(s). 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 cash credit Account (inclusive of accrued Interest and other charges as calculated upto 31.01.2018) is **Rs.59,23,958.35** (Rupees fifty nine lacs twenty three thousand nine hundred fifty eight and paise thirty five) as on 31.01.2018, 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 @ 12.15% per annum, till the full and final payment and/or realization of the entire debt, while in Pronote dated 20.02.2015 the rate of interest, i.e. @ 10.20% per annum, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 10.20% per annum, with quarterly rest, from 01.02.2018, till full and final realization of the entire debt, is allowed.

9. The matter also falls within the territorial as well as pecuniary jurisdiction of this Tribunal. Applicant Bank has proved its claim made in the O.A. The original application being T.A./101 of 2019 (arising out of O.A./164 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./101 of 2019 (arising out of O.A./164 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.59,23,958.35** (Rupees fifty nine lacs twenty three thousand nine hundred fifty eight and paise thirty five) due and payable, inclusive of interest and other charges calculated upto 31.01.2018; and interest for the period *pendente lite* and future @ 10.20% per annum, with quarterly rest, from 01.02.2018, 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 No.1 & 2. Accordingly, the *pendente lite* and future interest shall be calculated on the reduced amount.

(iii) Defendants No.1 & 2 are debarred from transferring, alienating, encumbering or disposing of the hypothecated movable assets; described in Schedule 'A' & 'B' at page 19 & 20 and para 3A at page 4 & 5 of the original application, as under:

Hypothecated Movable Assets:

"the whole of borrowers present and future stocks of machines, etc. lying at 8A/2, Ganesh Ghosh Lane, Kolkata – 700039 and 175, Rajdanga Shantipally, Haltu, Kolkata – 700107 together with all store components and spares which now belong to or may hereafter from time to time during the continuance of this security belong to the borrower and which are or shall or may be brought into stored or be in or upon or about the borrower's godown, or whenever else the same may be situated, stored or lying or being, including any such raw material articles or goods, stores, spares and components or other similar movable property in course of transit or delivery to the borrower (and all of which herein after for brevity's sake referred to as "the said goods")."

"All the Proprietorship Concern's present and future book debts, including monies, receivables, claims due and owing or which may at any time become due and owing to the Borrower in the course of its business by any person, firm, company or body corporate or by the Government of India or any State Government or Indian Railways or any Government Department or office or any Municipal or local or Semi-Government body or authority or any undertaking or project in the Public Sector."

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


(iv) 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 property(s), as aforesaid. Applicant Bank is also entitled to proceed against personal properties of the Defendants both moveable and immovable 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 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./101 of 2019 (arising out of O.A./164 of 2018) is allowed and stands disposed of.**

File be consigned to Record room.

This order is dictated and corrected by the undersigned and pronounced on this the 02^nd day of July, 2025.

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

(Arbind Madhav) Presiding Officer DRT-2, Kolkata

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