CANARA BANK vs DIP BASAK on 1 August 2025

1. **Dip Basak**, proprietor of M/s Fashion House, 23/3C, Italgacha Basti Road, Ground Floor, Dum Dum (N), Kolkata-700028.

..... Defendant

Counsel for parties:

For the Applicant Bank : Mr. Archan Dutt For the Defendants : *Ex-Parte*

**FINAL ORDER / JUDGMENT**

Delivered on 01.08.2025

Applicant, Canara Bank instituted the present Application being the Original Application No.234 of 2018 filed in DRT-3, Kolkata on 27.03.2018 against sole Defendant under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for realization of Rs.36,09,649.00 (Rupees thirty six lacs nine thousand six hundred forty nine) inclusive of interest calculated upto 28.02.2018 with further interest @ 14.4% 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 19.10.2019 and the same has been renumbered as T.A./238 of 2019 vide Ld. Registrar's order dated 28.10.2019.

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

*(Handwritten mark)*

(i) The defendant carrying on a business under the name and style of M/s Fashion House as proprietor. The defendant had approached and applied to the applicant Bank for open cash credit facility to the extent of Rs.30.00 lakhs. At the request of the defendant, the applicant Bank was pleased to grant / sanction the cash credit facility of Rs.30,00,000.00 (Rupees thirty lakhs) in favour of defendant vide sanction Memorandum dated 26.03.2015. Copy of sanction Memorandum dated 26.03.2015 is annexed and marked as Letter 'A'.

(ii) In consideration of the aforesaid credit facility of Rs.30.00 lakhs, the defendant executed and delivered the following loan documents in favour of applicant Bank:

- (a) Request for overdraft facilities dated 26.03.2015;

- (b) Pro-note for 30.00 lacs dated 26.03.2015;

- (c) Cash Credit Agreement dated 26.03.2015; Copy of said documents are annexed and collectively marked with Letter 'B'.

(iii) The borrower has hypothecated the whole of the borrowers stock both present and future outstanding monies, claim, receivable, book debts both present and future in favour of the applicant bank by way of first charge as security. Copy of the said document are marked and annexed as Letter 'B-1'

(iv) To secure the aforesaid cash credit facility of Rs.30.00 lacs, the defendant on or about 26.03.2015 created equitable mortgage in respect of immovable property, described in Schedule at page 18A and para 3A at page 4 & 5 of the O.A., by deposit of Title Deed with the applicant Bank over the said property. The letter evidencing deposit of title deed and schedule of the mortgaged property are annexed and marked as Letter 'C' and 'C-2'.

(v) Again, the defendant applied to the applicant bank for renewal of the existing limit of Rs.30.00 lacs vide application dated 09.06.2016; copy of said application dated 09.06.2016 is annexed and marked with Letter 'D'. At the request of the defendant, the applicant bank was pleased to renew / grant the existing limit and to that effect the defendant executed and delivered letter of renewal dated 09.06.2016 in favour of applicant Bank. Copy of said renewal dated 09.06.2016 is annexed and marked with Letter 'E'.

(vi) The Defendant had acknowledged his liability for a sum of Rs.28,92,461/- exclusive of interest from 21.05.2016 in the Cash Credit account by executing Acknowledgement of Debt & Security dated 23.05.2016. The same has been annexed and marked with Letter 'F'.

3. The Defendant availed and enjoyed the said cash credit facility by opening Account in Bank's Hatibagan Market Branch, 1, Abhoy Guha Road, Kolkata – 700005. However, the defendant failed and neglected to abide by the terms and conditions of the facility. The Defendant did not repay the outstanding Bank's dues and overdue interests in loan Account. In spite of repeated requests and personal contact made by applicant

Bank, the defendant failed to regularize the loan Account. Since the defendant did not pay any attention to regularize the Account, the Account became out of order and was classified as N.P.A. on 20.06.2017. Applicant Bank finding no other alternative issued demand notice dated 13.03.2018 upon the defendant by its Advocate demanding to repay the outstanding loan amount, but the defendant did not comply the said notice; copy of said notice dated 13.03.2018 is annexed and marked with letter 'G'. 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 (Letter 'H'), and future interest @ 14.4% per annum from 01.03.2018, till realization of entire dues, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

4. The notice / summons was sent to the Defendant by the Tribunal; service of Notice / summons by postal service / hand delivery has not been successfully effected upon the Defendant, such has been recorded vide Ld. Registrar's order dated 03.07.2023. At the request of Ld. Advocate of the applicant Bank, Ld. Tribunal was directed to serve the summons / notice upon the defendant by way of substituted service vide order dated 03.07.2023. Ld. Advocate for applicant Bank has brought on record the affidavit of service on publication dated 12.04.2024 upon the Defendant along with relevant portion of paper cuttings in two newspapers, namely (i) *'The Times of India'* in English and (ii) *'Aajkal'* in Bengali, both dated 05.04.2024, such has been recorded vide Ld. Registrar's order dated 15.04.2024. Despite service, the sole defendant did not appear nor filed the written statement; thus, the defendant was ordered to be proceeded *ex-parte* vide order dated 05.04.2024. Despite service, the sole defendant did not appear nor filed the written statement; thus, the defendant was ordered to be proceeded *ex-parte* vide order dated 30.07.2024. Written notes of argument has been filed by applicant Bank on 22.01.2025, 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 02.07.2025.

5. Applicant Bank has filed the evidence-on-Affidavit affirmed by Kumar Sankar Roychowdhury, Manager of Bank's Hatibagan Bazar Branch, at 1, Abhoy Guha Road, P.S.- Shyampukur, Kolkata – 700005 along with the copies of original documents executed by 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 Mr. S.S Chatterjee, Sr. Manager of Bank's Hatibagan Bazar Branch, at 1, Abhoy Guha Road, Kolkata – 700005 on 22.09.2022, such has been recorded in Ld. Registrar's order dated 22.09.2022. The documents produced by the applicant Bank are exhibited and annexed at 'A' to 'H'.

I have heard the Ld. Advocate for 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 cash credit facility of Rs.30.00 lakhs vide sanction letter dated 26.03.2015. Applicant Bank has proved the hypothecated movable assets and mortgaged immovable property, described in Schedule at page 18 & 18A and para 3A at page 4 & 5 of the original application.

7. On the point of limitation, Loan has been sanctioned on 26.03.2015; documents have been executed on 26.03.2015 and 09.06.2016; original Application has been filed on 27.03.2018 and the defendant admitted his debt & liability by executing an acknowledgement of Debt and Security on dated 23.05.2016 in favour of applicant Bank acknowledging the outstanding balance in loan Account. As such, the original Application appears to have been filed well within the period of limitation.

8. Applicant Bank stated that the outstanding balance in cash credit Account (inclusive of accrued interests and other charges as calculated upto 28.02.2018) is **Rs.36,09,649** (Rupees thirty six lacs nine thousand six hundred and forty nine) as on 28.02.2018, which is the amount claimed by the applicant Bank in the original Application, and the defendant is 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 @ 14.4% per annum from 01.03.2018, till realization in full, whereas in the Pronote dated 26.03.2015 the rate of interest @12.70% per annum compounded monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 12.70% per annum, with quarterly rests, from 01.03.2018, till realization in full, 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./238 of 2019 (arising out of O.A./234 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./238 of 2019 (arising out of O.A./234 of 2018) filed by applicant Bank, is allowed and debt is determined with cost against the Defendant. It is hereby ordered that the Defendant is hereby directed to pay, the total debt amount of **Rs.36,09,649** (Rupees thirty six lacs nine thousand six hundred and forty nine) due and payable, inclusive of interest and other charges as calculated upto 28.02.2018; and interest for the period *pendente lite* and future @ 12.70% 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 accounts 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 Defendant. Accordingly, the *pendente lite* and future interest shall be calculated on the reduced amount.

(iii) Defendant is debarred from transferring, alienating, encumbering or disposing of the hypothecated movable assets and mortgaged immovable property, described in Schedule at page 18 & 18A and para 3A at page 4 & 5 of the original application, as under –

Hypothecated Movable Assets:

*"Whole of the borrowers stock both present and future outstanding monies, claim, receivable, book debts both present and future etc."*

Mortgaged Immovable Property:

*"ALL THAT self contained commercial Flat No.1, ground floor of the building named 'Skylark Apartment' at South-East side measuring a super built up area of 800 sq.ft. more or less bearing Holding No.23, Italgaha Basti Road, Kolkata – 700028 together with undivided proportionate share in the land and common areas and facilities."*

(iv) The defendant is given a time of sixty days from the date of this Final Order / Judgment for repayment of the above mentioned dues, so intimated to him. In case the Defendant fails 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 Defendant both moveable and immovable 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 sole Defendant in favour of applicant Bank under Section 19(22) of the Recovery of Debts and Bankruptcy Act, 1993 and put up the same for signature for issuance.

(vi) Ld. Recovery Officer shall realize the amount as per the Recovery Certificate from the Defendant, 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./238 of 2019 (arising out of O.A./234 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 01^st day of August, 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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