UNION BANK OF INDIA vs SRI GAURAB BANERJEE AND ANR on 22 March 2024

1. 1. **Sri Gaurab Banerjee**, Son of Sri Bijoy Banerjee, having its residence at D.N. Banerjee Road, Post Office – Ghola Bazar, Sodepur, Kolkata, Pin – 700111, West Bengal.

2. 2. **Smt. Subhra Banerjee** wife of Sri Gourab Banerjee, having its residence at D.N. Banerjee Road, Post Office – Ghola Bazar, Sodepur, Kolkata, Pin – 700111, West Bengal.

..... Defendants

Counsel for parties:

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

Delivered on 22.03.2024

Applicant (Union Bank of India), erstwhile Corporation Bank instituted the present Application being the Original Application No.334 of 2018 filed in DRT-3, Kolkata on 05.05.2018 against two Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.11,76,539.00 (Rupees eleven lacs seventy six thousand five hundred thirty nine) as on 13.03.2018 together with further interest @ 9.65% per annum (floating), 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 21.10.2019 and the same has been renumbered as T.A./ 309 of 2019 vide Ld. Registrar's order dated 29.10.2019.

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. Counsel for Union Bank of India has filed a Memo 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. Counsel for Applicant Bank on 20.10.2020, such has been recorded in Ld. Registrar's order dated 20.10.2020.

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

(i) The Defendants No.1 & 2 are the co-borrower in the instant O.A. case. At the request of defendants No.1 & 2 vide an application dated 20.05.2014, Applicant Bank was pleased to grant / sanction a Home Loan of Rs.10,00,000/- (Rupees ten lacs) in favour of the defendants No.1 & 2 against the equitable mortgage of immovable property upon the terms and conditions, vide sanction letter dated 17.07.2014, copies of loan application and sanction letter are annexed and marked as Annexure 'A-1' & 'A-2' respectively.

(ii) In consideration of the aforesaid Home / Term loan facility of Rs.10.00 lakhs availed by Defendants No.1 & 2, the defendants executed the following security documents dated 21.07.2014 & 19.12.2014:

- (a) Agreement for Term Loan (Housing) dated 21.07.2014;

- (b) Letter of undertaking dated 21.07.2014;

- (c) Tripartite Agreement dated 21.07.2014;

- (d) Letter to be obtained from builder dated 21.07.2014;

- (e) Joint letter by Bank and the borrower requesting the promoter / builder to note Bank's Lien on shares / Flat dated 21.07.2014;

- (f) Undertaking letter to be obtained from the borrower dated 21.07.2014;

- (g) Affidavit dated 19.12.2014;

- (h) General Power of Attorney dated 19.12.2014;

- (i) Irrevocable Power of Attorney to be executed by the borrower in favour of Bank dated 19.1.2014.

Copies of said documents are annexed and marked as Annexure 'A-3' to 'A-11' respectively.

(iii) In consideration of the aforesaid credit facility granted to defendants No.1 & 2, the defendants created equitable mortgage in respect of their immovable property (described in Schedule 'X-1' at page 25 of the O.A.) by depositing title deed being Deed No.02215 for the year 2015 with the applicant Bank; copy of Deed being No.02215 is annexed and marked as Annexure 'A-12'. Further, the defendants No.1 & 2 confirmed the creation of equitable mortgage of immovable property by executed and confirmed vide Memorandum of Deposit of

Title Deed dated 21.07.2014; copy of said Memorandum of deposit of Title Deed is annexed and marked as Annexure 'A-13'.

(iv) Applicant Bank before sanctioning the said credit facility got valued the said immovable property through its empanelled valuer and the valuer submitted its valuation report dated 19.05.2017 to the applicant bank. Further, the defendant No.1 executed and delivered a letter dated 30.12.2016 in favour of applicant Bank. Copies of valuation report dated 19.05.2017 and Letter of defendant No.1 dated 30.12.2016 are annexed and marked as Annexure 'A-14' & 'A-15' respectively.

5. The Defendants enjoyed the aforementioned Term Loan facility by opening Account in Defendant No.1's name in Applicant Bank's Jugberia Branch, Vill. & P.O.- Jugberia, Dist.- 24-Parganas, Kolkata – 700110. However, the defendants failed and neglected to abide by the terms and conditions of the term loan facility. The Defendants did not repay the outstanding Bank's dues and overdue interests in the 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 26.02.2016. Tthe applicant Bank finding no other alternative issued a re-call / demand notice dated 26.03.2018 through its Ld. Advocate demanding upon the defendants to repay the outstanding Bank's dues, but the defendants did not comply the said notice; copy of notice is annexed and marked as Annexure 'A-16'. Certified copies of Statement of Accounts along with Certificate under Bankers' Books Evidence Act, with Statement of Claim, have been filed to show and prove the dues (Annexure 'A-17'), and future interest @ 9.65% per annum (floating), with monthly rests from 14.03.2018. 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; service of Notices / summons upon the Defendants by postal service has been successfully completed vide order dated 10.03.2023. Despite service, the defendants did not appear nor filed the written statement; thus, the defendants were ordered to be proceeded *ex-parte* vide order dated 25.04.2022. Ld. Counsel for 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. Counsel for Applicant Bank on 20.10.2020, such has been recorded in Ld. Registrar's order dated 20.10.2020. Ld. Counsel of the applicant Bank submitted arguments on 01.03.2024.

7. Applicant Bank has filed the evidence-on-affidavit affirmed by Md. Shadab Halim, Branch Manager of Applicant Bank's Jugberia Branch, Vill. & P.O.- Jugberia, Dist.- North 24-Parganas, Kolkata – 700110 along with the copy of original documents executed by the Defendant. 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. Utlia Prasad, Branch Manager of Applicant Bank on 08.02.2022, such has

been recorded in Ld. Registrar's order dated 08.02.2022. The documents produced by the Applicant Bank are exhibited and annexed at 'A-1' to 'A-17'.

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

8. Evidence-on-Affidavit, filed by the Applicant Bank is supported by copies of the documents (Original documents verified by the Registry and returned to Mr. Utla Prasad, Branch Manager of Applicant Bank on 08.02.2022). Applicant Bank has corroborated the averments made in the O.A. Applicant Bank has proved the sanction of Term Loan of Rs.10.00 lakhs.

Applicant Bank has proved the equitable mortgaged of properties.

9. Evidence-on-affidavit, filed by Applicant Bank, has remained unchallenged, un-rebutted and its veracity cannot be put to dispute. Applicant Bank has proved the averments made in the O.A.

10. Applicant Bank has filed Statements of Account certified under Banker's Books Evidence Act. Applicant Bank has stated that the outstanding debit balance in the Account (inclusive of accrued interest and other charges as calculated upto 13.03.2018) is **Rs.11,76,539.00** (Rupees eleven lacs seventy six thousand five hundred thirty nine) as on 13.03.2018, which is the amount claimed by the applicant Bank in the original Application, and the defendants No.1 & 2 are liable to pay, jointly and/or severally, the said amount to the applicant Bank with *pendente lite* and future interest, till realization of the entire due in full. I allow the claim as made by the applicant Bank in the original Application. Applicant Bank has prayed future interest @ 9.65% per annum (floating), with monthly rests, while in sanction letter dated 17.07.2014 the rate of interest @ 10.25% per annum (floating), has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest which has been claimed by applicant Bank in O.A., i.e. @ 9.65% per annum, from 14.03.2018, is allowed.

11. On the point of limitation, Loan has been sanctioned on 17.07.2014; documents have been executed on 21.07.2014 & 19.12.2014; original Application has been filed on 05.05.2018. The defendant No.1 executed and delivered a Letter dated 30.12.2016 in favour of applicant Bank confirming the outstanding balance in loan account. As such, the original Application appears to have been filed well within the period of limitation.

12. 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./309 of 2019 (arising out of O.A./334 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(j) T.A./309 of 2019 (arising out of O.A./334 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.11,76,539.00** (Rupees eleven lacs seventy six thousand five hundred thirty nine) due and payable, inclusive of interest and other charges as calculated upto 13.03.2018; and interest for the period *pendente lite* and future rate which has been claimed by applicant Bank in O.A., i.e. @ 9.65% per annum, from 14.03.2018, 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. 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 – X-1' at page 25 of the original Application, are as under –

*"ALL THAT the self contained residential Flat marble floor identified by Flat No.- "A", consisting of 2 No. of bed room-1, dining cum kitchen, 2 toilets and 1 balcony, on the ground floor, measuring more or less 560 sq.ft. of super built up area, north east corner, of the building commonly and popularly known as "Sidharth Plaza" constructed over the land morefully described in the first schedule herein above situated at Holding No.59, Ward No.31, under the jurisdiction of the Panihati Municipality together with the undivided proportionate share of the land and the said property Registered and recorded as Book No.1, Volume No.7, Page from 1164 to 1198, being No.02215 for the year 2015 and stand in the name of Sri Gaurab Banerjee and Smt. Subhra Banerjee."*

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 thirty 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 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./309 of 2019 (arising out of O.A./334 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 March, 2024.

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

(Arbind Madhav) Presiding Officer DRT-2, Kolkata