UNION BANK OF INDIA vs M/s. Green Vision Nursery on 22 March 2024

1. 1. **M/s Green Vision Nursery**, Proprietor – Sri Sanjay Kumar Pal, having its place of business and/or at Village – Makhaliya, P.O.- Bakhrahat, P.S.- Bishnupur, Dist.- South 24-Parganas, Pin–743377, West Bengal.

2. 2. **Sri Sanjay Kumar Pal**, Proprietor of M/s Green Vision Nursery, having its principal place of business and/or residence at Village – Makhaliya, P.O.- Bakhrahat, P.S.- Bishnupur, Dist.- South 24-Parganas, Pin–743377, West Bengal.

3. 3. **Sri Avijit Pal**, having its principal place of business and/or residence at Village – Makhaliya, P.O.- Bakhrahat, P.S.- Bishnupur, Dist.- South 24-Parganas, Pin–743377, 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.360 of 2018 filed in DRT-3, Kolkata on 14.05.2018 against three Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.16,12,734.00 (Rupees sixteen lacs twelve thousand seven hundred thirty four) as on 31.03.2018 together with further interest @ 11.25%, 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./ 115 of 2020 vide Ld. Registrar's order dated 06.11.2019.

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) That the Defendant No.2 is the proprietor of defendant No.1 and the defendant No.3 is the guarantor and executed and delivered banking & security documents as guarantor of the credit facility availed by defendant No.2 (proprietor of defendant No.1).

(ii) At the request of defendant No.1 through its proprietor, i.e. defendant No.2 for financial assistance vide application dated 13.08.2013, Applicant Bank was pleased to grant / sanction a Cash Credit facility to the limit of Rs.10,00,000/- (Rupees ten lacs) in favour of the defendant No.1 against the equitable mortgage of immovable properties as a collateral security upon the terms and conditions,, vide sanction letter dated 26.10.2013, copies of loan application and sanction letter are annexed and marked as Annexure 'A-1' & 'A-2' respectively.

(iii) In consideration of the aforesaid cash credit facility of Rs.10.00 lakhs availed by Defendant No.1, the defendant No.2 being the proprietor of defendant No.1 executed the following documents security documents all dated 26.10.2013:

- (a) Letter of proprietorship;

- (b) Request for overdraft facility;

- (c) Agreement for hypothecation;

- (d) Demand Promissory Note for Rs.10.00 lakhs;

- (e) Take delivery letter to D.P.N.

Copies of said documents are annexed and marked as Annexure 'A-3' to 'A-7' respectively.

(iv) In consideration of the aforesaid credit facility granted to defendant No.1 through the defendant No.2 (proprietor of defendant No.1), the defendant No.3 duly guaranteed the repayment of all sums to the applicant Bank together with interest, costs etc. by executed and delivered a Guarantee Agreement dated 26.10.2013 in favour of applicant Bank and the said guarantee would be a continuing guarantee; copy of guarantee agreement is annexed and marked as Annexure 'A-8'. To secure the credit facility of Rs.10.00 lakhs, the defendant No.2

created equitable mortgage in respect of his immovable properties (described in Schedule 'X-1' at page 28 of the O.A.) by depositing title deeds being (a) Deed No.05703 for the year 2012 and (b) Deed No.06016 for the year 2012 with the applicant Bank on 26.10.2013; copies of Deeds being No.05703 and 06016 are annexed and marked as Annexure 'A-9' & 'A-10' respectively. Further, the defendant No.2 confirmed the creation of equitable mortgage by deposit of said Deeds in favour of applicant Bank vide a Memorandum of Deposit of Title Deeds dated 26.10.2013; copy of said Memorandum of deposit of Title Deeds is annexed and marked as Annexure 'A-11'.

(v) Applicant Bank before sanctioning the said credit facility got valued the said immovable property through its empanelled valuer and the valuer submitted its report to the applicant bank; copy of valuation report is annexed and marked as Annexure 'A-12'.

(vi) For the purpose of securing repayment of the debit balance of the aforesaid credit limit, the defendants executed and delivered an Acknowledgement of Debt / Liability on 10.09.2014 and on 09.09.2017 acknowledging and confirming the outstanding balance in the account; copy of the same is annexed and marked as Annexure 'A-13' and 'A-14' respectively.

5. The Defendants enjoyed the aforementioned credit facilities by opening Account in Defendant No.1's name (M/s Green Vision Nursery) in Applicant Bank's Amtala Branch, P.O.-Kanya Nagar, Dist.- South 24-Parganas. However, the defendants failed and neglected to abide by the terms and conditions of the facilities. 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 27.10.2016. However, these requests were ignored by the defendants and the applicant Bank finding no other alternative issued a re-call / demand notice dated 05.05.2018 demanding upon the defendants to repay the outstanding Bank's dues, but the defendants did not comply the said notice; copies of notice is annexed and marked as Annexure 'A-15'. 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-16'), and future interest @ 11.25% per annum, with cost, charges etc. till realization, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

6. The notices./ summons were sent to the Defendants by the Tribunal; service of Notices / summons upon the Defendants by postal service has been successfully completed vide order dated 06.02.2023. 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 01.03.2024. 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 4TA/115/2020 - DRT-2/Kol 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 Sri Shyamalendu Sardar, Branch Manager of Applicant Bank's Amtala Branch, N.D. Road, Amtala, P.O.- Kannyanagar, Dist.- South 24-Parganas 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. Sandip Bakshi, Manager of Applicant Bank on 08.03.2022, such has been recorded in Ld. Registrar-in-charge's order dated 08.03.2022. The documents produced by the Applicant Bank are exhibited and annexed at 'A-1' to 'A-16'.

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. Sandip Bakshi, Manager of Applicant Bank on 08.03.2022). Applicant Bank has corroborated the averments made in the O.A. Applicant Bank has proved the sanction of cash credit limit 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 31.03.2018) is **Rs.16,12,734.00** (Rupees sixteen lacs twelve thousand seven hundred thirty four) as on 31.03.2018, which is the amount claimed by the applicant Bank in the original Application, and the defendants 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 @ 11.25% per annum, while in Demand Promissory Note dated 26.10.2013 the same rate of interest, i.e. @ 11.25% per annum, has been mentioned. Therefore, the *pendente lite* & future rate of interest @ 11.25% per annum, simple, from 01.04.2018, is allowed.

11. On the point of limitation, Loan has been sanctioned on 26.10.2013; documents have been executed on 26.10.2013; original Application has been filed on 14.05.2018. The defendants executed and delivered an Acknowledgement of Debt / Liability on 09.09.2017 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./115 of 2020 (arising out of O.A./360 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./115 of 2020 (arising out of O.A./360 of 2018), filed by the Applicant Bank, is allowed and debt is determined with cost against the Defendants No.1, 2 & 3. It is hereby ordered that the Defendants No.1, 2 & 3 are hereby directed to pay, jointly and / or severally the total debt amount of **Rs.16,12,734.00** (Rupees sixteen lacs twelve thousand seven hundred thirty four) due and payable, inclusive of interest and other charges as calculated upto 31.03.2018; and interest for the period *pendente lite* and future rate @ 11.25% per annum, simple, from 01.04.2018, 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 & 3 are debarred from transferring, alienating, encumbering or disposing of the mortgage immovable property; described in 'Schedule – X-1' at page 28 of the original Application, are as under –

*"ALL THAT land measuring about 47 – 7/24 Satak vides Deed No.05703 for the year 2012 and about 22 – 13/16 Satak vides Deed No.06016 for the year 2012, in Mouza – Jhinkurberia Gram, Village – Jhinkurberia, Post Office – Bakrahat, P.S.- Bishnupur, L.R. Dag No.645, 486, 646/737, 647/736, C.S. Khatian No.412, R.S. No.59, J.L. No.9, Touzi No.107, Pargana, Magura, ADSR Office – Bishnupur, Bakrahat Gram Panchayat, District – South 24-Parganas, West Bengal, registered in favour of Sri Sanjay Pal (Defendant No.2 herein) before the ADSR – Bishnupur, South 24-Parganas, West Bengal, morefully and particularly described in the Schedule of the said Deed No.05703 for the year 2012 & Deed No.06016 for the year 2012."*

The Defendants 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 Defendant.

(iv) The defendants No.1, 2 & 3 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.2 & 3 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 & 3 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.

6TA/115/2020 - DRT-2/Kol

(vi) Ld. Recovery Officer shall realize the amount as per the Recovery Certificate from the Defendants No.1, 2 & 3, 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./115 of 2020 (arising out of O.A./360 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

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