INDIAN OVERSEAS BANK vs SRI DULAL CHANDRA DUTTA RAY on 22 July 2025

1. 1. **Sri Dulal Chandra Dutta Ray**, Son of Late Nitis Dutta Ray, Proprietor of M/s Khaliajuri Polypet, BE-97, Rabindra Pally, Krishnapur, Prafulla Kanan, Baguiati, Kolkata – 700101; also at RGM, A/S 328, BD – 71, Rabindra Pally,, Krishnapur, Kolkata – 700101; also at Fatepur, Haringhata, Nadia, Pin – 741249, West Bengal.

2. 2. **Sri Rinku Dutta Ray**, Son of Late Nitis Dutta Ray, BE-122, Rabindra Pally, Krishnapur, Prafulla Kanan, Baguiati, Kolkata – 700101.

..... Defendants

Counsel for parties:

For the Applicant Bank

: Ms. Sangeetha Ghosh & Ms. Aparajita Ghosh. Amicus Legal Associates

For the Defendants

: *Ex-Parte*

**FINAL ORDER / JUDGMENT**

Delivered on 22.07.2025

Applicant, Indian Overseas Bank instituted the present Application being the Original Application No.227 of 2018 filed in DRT-3, Kolkata on 31.03.2018 against two Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.20,87,252.41 (Rupees twenty lacs eighty seven thousand two hundred fifty two and paise forty one) as on 28.02.2018 with further interest thereon from 01.03.2018, with monthly rests, till realization. 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 18.10.2019 and the same has been renumbered as T.A./ 205 of 2019 vide Ld. Registrar's order dated 26.10.2019.

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

(i) The defendant No.1 is the sole Proprietorship concern in the name and style of M/s Khaliajuri Polypet; the defendant No.2 is the brother of defendant No.1 and the guarantor. The defendant No.1 had approached the applicant Bank in the month of March, 2015 with a request for financial assistance in the nature of Term Loan facility for Rs.20,00,000/- vide loan Application dated 20.03.2015; copy of said loan Application dated 20.03.2015 is annexed and marked as Annexure 'A'. Relying upon the loan application, applicant Bank was pleased to grant / sanction the Term Loan facility to the amount of Rs.20,00,000/- (Rupees twenty lakhs) in favour of the defendants vide sanction advice dated 27.03.2015. Copy of sanction advice dated 27.03.2015 is annexed and marked as Annexure 'B'.

(ii) In consideration of the applicant bank granting the said Term Loan of Rs.20.00 lakhs to the defendants, the defendants executed and delivered the following security documents all dated 27.03.2015 in favour of applicant Bank:

- (a) Demand Promissory Note for Rs.20,00,000/- together with interest thereon with a minimum @ 12% per annum with monthly rests;

- (b) Term Loan Agreement for an amount of Rs.20.00 lakhs;

- (c) Letter of Undertaking duly signed and executed by defendants No.1 & 2 for the amount of Rs.20.00 lakhs;

- (d) Letter of authorization duly signed by Defendant No.1;

- (e) Agreement of Term Loan and Hypothecation for an amount of Rs.20.00 lakhs;

- (f) Letter of Hypothecation (for securing machineries / vehicles Goods / Book Debts duly signed and executed in favour of applicant Bank; Copies of said documents are annexed and marked as Annexure 'C-1' to 'C-6' respectively.

(iii) The defendant No.2 has executed a Guarantee for loan Account (Personal Guarantee) dated 27.03.2015 in favour applicant Bank thereby guaranteeing repayment to the applicant Bank an amount of Rs.20.00 lakhs. The applicant Bank submits that the said guarantee is continuing guarantee. Copy of said Guarantee dated 27.03.2015 is annexed and marked as Annexure 'D'.

(iv) To secure the due repayment of the said Term Loan facility of Rs.20.00 lakhs, the defendant No.1 created equitable mortgage in respect of immovable property, morefully described in Schedule 'A' at page 22 and para 3A at page 4 & 5 of the O.A., by depositing the original Deed of Conveyance being No.01510 for the year 2015, registered at ADSP – Cossipore, Dum Dum. Copy of duly executed Memorandum of deposit of Title Deed dated 28.03.2015 is annexed and marked as Annexure 'E'. The defendant No.1 created equitable mortgage by depositing the original Deed of Conveyance being No.01510 for the year 2015 and executed by and between Sri Biswanath Aich (Vendor) and Sri Dulal Chandra Dutta Ray (Purchaser) for the property. Copy of Deed of Conveyance for the said flat property is annexed and marked as Annexure 'F'.

3TA/205 of 2019 – DRT-2/KKoi

3. The Defendants availed and enjoyed the said Term Loan facility by opening Account in Bank's Lake Town Branch, 850, Lake Town, Kolkata – 700089. However, the defendants committed breach of terms and conditions of the agreement and made defaults in payment even after several requests from the applicant Bank. The Defendants did not repay the outstanding Bank's dues, agreed EMIs and overdue interests in loan Account. The Account became out of order and was classified as N.P.A. on 30.06.2017. The applicant Bank finding no other alternative issued recall demand Notice dated 10.03.2018 upon the defendants calling upon them to repay the outstanding amount of Rs.20,87,252.41 as on 28.02.2018, but the defendants did not comply the said notice; copy of said recall notice dated 10.03.2018 is annexed and marked as Annexure 'G'. Thereafter, applicant Bank issued notice U/s 13(2) of the Sarfaesi Act, 2002 dated 08.12.2017 upon the defendants demanding to pay the outstanding Bank's dues, but the defendants failed and neglected to pay the dues amount; copy of said notice dated 08.12.2017 is annexed and marked as Annexure 'J'. 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 'H' & 'I'), and future interest thereon from 01.03.2018 till realization @ 13.45% per annum with monthly rests, by the defendants to the applicant Bank, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

4. The notice / summons was sent to the Defendants No.1 & 2 by the Tribunal; service of Notice / summons upon the Defendants by postal service has made successful, such has been recorded vide Ld. Registrar-in-Charge's order dated 10.05.2022. However, it is seen that the defendant No.1 appeared through Advocate on 06.07.2018; thereafter, the defendants did not appear nor filed the written statement; thus, both the defendants are hereby ordered to be proceeded *ex-parte*. Ld. Advocate of the applicant Bank has filed the written notes of argument on 20.06.2024 wherein stated the brief facts of the case as has been narrated in the original application. Ld. Advocate of the applicant Bank has submitted argument on 20.06.2024.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Mr. Rajesh Kumar, Manager of Bank's Lake Town Branch, 850, Lake Town, Kolkata – 700089 along with the copy of documents executed by the Defendants. Copy of 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 same have been returned to Sri Rajesh Kumar, Manager of Bank's Lake Town Branch, 850, Lake Town, Kolkata – 700089 on 06.07.2018 such has been recorded in Ld. Registrar-in-Charge, Kolkata DRT-3's order dated 06.07.2018. The documents produced by applicant Bank are exhibited and annexed at 'A-1' to 'A-13'.

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 corroborated the averments made in the O.A. Applicant Bank has proved the sanction of Term Loan facility of Rs.20,00,000/- vide sanction letter dated 27.03.2015. Applicant Bank has proved the mortgaged immovable property, described in Schedule 'A' at page 22 and para 3A at page 4 & 5 of the original application.

7. On the point of limitation, Loan has been sanctioned on 27.03.2015, security documents have been executed on 27.03.2015 and original Application has been filed on 31.03.2018. Further, the defendant No.1 created equitable mortgage in respect of immovable property by executing original Deed of Conveyance being No.01510 for the year 2015 dated 28.03.2015 in favour of applicant Bank. 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 Loan Account (inclusive of accrued interests and other charges as calculated upto 28.02.2018) for a sum of **Rs.20,87,252.41** (Rupees twenty lacs eighty seven thousand two hundred fifty two and paise forty one) as on 28.02.2018, 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 @ 13.45% per annum with monthly rests, while in the Demand Promissory Note dated 27.03.2015 the rate of interest @ 12% per annum with monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 12% per annum, with quarterly rests, from 01.03.2018, 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./205 of 2019 (arising out of O.A./227 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./205 of 2019 (arising out of O.A./227 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.20,87,252.41** (Rupees twenty lacs eighty seven thousand two hundred fifty two and paise forty one) due and payable, inclusive of interest and other charges as calculated upto 28.02.2018; and interest for the period *pendente lite* and future rate @ 12% per annum, with quarterly rests, from 01.03.2018, 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) The defendants No.1 & 2 are debarred from transferring, alienating, encumbering or disposing of the mortgaged immovable property and hypothecated movable assets; described in Schedule 'A' and Schedule 'B' at page 22 & 23 and para 3A at page 4 & 5 of the original application, as under –

Mortgaged Immovable Property:

"All That piece an parcel of self contained residential flat measuring about 550 sq.ft. super built-up area north side on the first floor consisting of 2 bedrooms, 1 kitchen, 1 balcony, 1 toilet together with undivided proportionate share of land underneath lying and situated at Mouza – Satgachi, J.L. No.20, E/P No.74, C.S. Plot (Dag) No. 1521(P), Holding No.91, Bapuji Colony, Kolkata – 700028 under South Dum Dum Municipality, Ward No.23 under P.S.- Dum Dum, Dist.- 24-Parganas (N).

<table> <tbody> <tr> <td>On the North</td> <td>:</td> <td>K. Das</td> </tr> <tr> <td>On the South</td> <td>:</td> <td>N. Banerjee</td> </tr> <tr> <td>On the East</td> <td>:</td> <td>Colony Road</td> </tr> <tr> <td>On the West</td> <td>:</td> <td>B. Das"</td> </tr> </tbody> </table>

Hypothecated Movable Assets:

"the whole of borrowers present and future stocks of assets, machineries etc. lying at BE-97, Rabindra Pally, Krishnapur, Prafulla Kanan, Baguiati, Kolkata – 700101 & RGM, A/S 328, BD – 71, Rabindrapally, Krishnapur, Kolkata – 700101 & Fatepur, Haringhata, Nadia, W.B. – 741249 & BE – 122, Rabindrapally, Krishnapur, Prafulla Kanan, Baguiati, Kolkata – 700101 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 to shall or may be brought into stored or be in or upon or about the borrower's godown, or wherever else the same may be situated, stored or lying or being, including any such 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 hereinafter for brevity's sake referred to as "the said goods")"

The Defendants No.1 & 2 are 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 immovable and also proceed against the Defendants 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./205 of 2019 (arising out of O.A./227 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this, the 22^nd day of July, 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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