STATE BANK OF INDIA vs SRI HARIDAS BISWAS on 10 April 2024

1. **Sri Haridas Biswas**, Son of Sri M. Biswas, residing at Vill.- Sikdespukuria, O-Choto Jagulia, Barasat, Pin – 743294, West Bengal.

.. ..... Defendant

Counsel for parties:

For the Applicant Bank : Mr. Anirban Pramanick, Ld. Advocate For the Defendant : *Ex-Parte***FINAL ORDER / JUDGMENT**

Delivered on 10.04.2024

Applicant, State Bank of India instituted the present Application being the Original Application No.977 of 2018 filed in DRT-3, Kolkata on 07.12.2018 against single Defendant under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.16,13,533.00 (Rupees sixteen lacs thirteen thousand five hundred thirty three) as on 03.11.2018 together with further interest @ 18% 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 30.12.2019 and the same has been renumbered as T.A./ 619 of 2020 vide Ld. Registrar's order dated 09.12.2020.

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

(i) That the Defendant is the borrower of the loan account. On 16.02.2016 the defendant had applied and approached before the applicant Bank for the purpose of extension of residential house, and in pursuant of the above, applicant Bank was pleased to grant / sanction a Term Loan of Rs.14,00,000/- (Rupees fourteen lacs) in favour of the defendant vide arrangement letter dated 10.03.2016.

(ii) At the time of sanctioning of said credit facility, the effective rate of interest was @ 9.55% per annum with monthly rests. The said term loan was to be repaid in 204 monthly installments of Rs.13,901/-. The primary security for the advance was two storied residential building (described in Schedule at page 13 of the O.A.). Copy of loan application dated 16.02.2016 is annexed and marked with letter 'A' and Exhibit AW-1; copy of arrangement / sanction letter dated 10.03.2016 is annexed and marked with letter 'B' and Exhibit AW-2.

(iii) In consideration of the aforesaid Term Loan facility of Rs.14.00 lakhs, the defendant executed the following security documents all dated 10.03.2016:

- (a) Memorandum of loan agreement;

- (b) Deed of undertaking;

- (c) Agreement to mortgage;

- (d) Affidavit.

Said documents are annexed and marked with Annexure 'C', 'D', 'E' & 'F' and Exhibit AW-3, AW-4, AW-5 & AW-6 respectively.

(iv) In consideration of the aforesaid Term Loan facility granted to the sole defendant, the defendant created equitable mortgage in respect of his immovable property (described in Schedule at page 13 of the O.A.) by depositing original title deed with the Bank by way of a letter dated 15.03.2016 being the Deed of Conveyance recorded in Book o.1, CD Volume No.42, pages 3839 being No.12271 for the year 2010 registered before the District Sub-Registrar – II, North 24-Parganas alongwith English translation; copy of letter dated 15.03.2016 is annexed and marked with letter 'G' and Exhibit AW-7; copy of deed of conveyance along with English translation is annexed and marked with letter 'H' and Exhibit AW-8.

(v) Applicant Bank got valued the said immovable property through its empanelled valuer and the valuer submitted its report to the bank; copy of valuation report dated 14.11.2018 is annexed and marked with letter 'I' and Exhibit AW-9.

3. The Defendant availed and enjoyed the said Term Loan facility by opening Account in Defendant's name in Bank's Barasat K.N.C. Road Branch,. However, the defendant failed and neglected to abide by the terms and conditions of the facilities. The Defendant 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 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 26.08.2017. However, these requests were ignored by the defendant and the applicant Bank finding no other alternative issued a legal notice dated 12.11.2018 by its Advocate demanding to repay the outstanding Bank's dues, but the defendant did not comply the said notice; copy of Advocate's letter is annexed and marked with letter 'K' and Exhibit AW-11. Certified copies of Statement of Account along with Certificate under Bankers' Books Evidence Act, with Statement of Claim, have been filed to show and prove the dues (Letter 'J' and Exhibit AW-10), and future interest @ 18% per annum together with costs etc. till realization, 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 upon the Defendant by postal service has been successfully completed vide order dated 20.12.2021. Ld. Advocate of applicant Bank has submitted valuation report by a supplementary affidavit dated 20.12.2021 thereby realizable value of mortgaged property is assessed at Rs.8.71 lacs by the valuer. 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 23.02.2022. Written notes of arguments has been filed by the applicant Bank on 28.02.2022.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Sri Anupam Sarkar, Branch Manager (NPA) of Bank's RACPC Bidhannagar, P.S.- Bidhannagar, 1/16, V.I.P. Road, Kolkata – 700054 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 Shri B.K. Biswas, Manager of Applicant Bank, such has been recorded in Ld. Registrar's order dated 24.02.2021. The documents produced by the Applicant Bank are exhibited and annexed at 'AW-1' to 'AW-11'.

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

6. Evidence-on-Affidavit, filed by the Applicant Bank is supported by copies of the documents (Original documents verified by the Registry and returned to Shri B.K. Biswas, Manager of Applicant Bank on 24.02.2021). Applicant Bank has corroborated the averments made in the O.A. Applicant Bank has proved the sanction of Term Loan of Rs.14.00 lakhs.

Applicant Bank has proved the equitable mortgaged of properties.

7. 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.

8. Applicant Bank has filed Statements of Account certified under Banker's Books Evidence Act. Applicant Bank has stated that the outstanding balance in Term Loan Account as on 03.11.2018 (Interest applied upto 26.08.2017) is Rs.13,72,490.00 and accrued interest calculated from 27.08.2017 to 03.11.2018 is Rs.2,38,265.00 and Add penal interest of Rs.2778.00 have been added / debited in the Account; thus the outstanding claim amount comes to **Rs.16,13,533.00** (Rupees sixteen lacs thirteen thousand five hundred thirty three) as on 03.11.2018, 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 @ 18% per annum, while in the Arrangement / sanction letter dated 10.03.2016 the rate of interest @ 9.55% per annum, with monthly rests, has been mentioned. The defendant availed the Term Loan for the purpose of extension of residential house; therefore, in my view, the *pendente lite* & future rate of interest @ 9.55% per annum, simple, from 04.11.2018, is allowed.

9. On the point of limitation, Loan has been sanctioned on 10.03.2016, security documents have been executed on 10.03.2016 and original Application has been filed on 07.12.2018. As such, the original Application appears to have been filed well within the period of limitation.

10. 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./619 of 2020 (arising out of O.A./977 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./619 of 2020 (arising out of O.A./977 of 2018), filed by the Applicant Bank, is allowed and debt is determined with cost against the sole Defendant. It is hereby ordered that the Defendant is hereby directed to pay the total debt amount of **Rs.16,13,533.00** (Rupees sixteen lacs thirteen thousand five hundred thirty three) due and payable, inclusive of interest and other charges as calculated upto 03.11.2018; and interest for the period *pendente lite* and future rate @ 9.55% per annum, simple, from 04.11.2018, till realization of the entire sum due and recoverable.

(ii) Amount, if any, paid by the Defendant 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 Defendant. Accordingly, the *pendente lite* and future interest shall be calculated on the reduced amount.

(iii) The defendant debarred from transferring, alienating, encumbering or disposing of the mortgage immovable property; described in 'Schedule' at page 13 of the original Application, are as under –

"ALL THAT piece and parcel of land measuring about 1 cottahs 8 chittaks together with two storied residential building situated at Mouza – Shikdeshpukuria, R.S. Dag No.155/1242, RS Khatian No.4, J.L. No.95, West Bengal – 743294, P.S.- Barasat, within the limits of Chotojagulia Gram Panchayet in the district of 24-Parganas (North) recorded in Book No.1, CD Volume No.42, pages 3839 to 3854 being No.12271 for the year 2010, registered before the District Sub Registrar – II, North 24-Parganas."

The Defendant is also debarred from transferring, alienating, encumbering or disposing any other property(s) either movable or immovable and assets belonging to him till the aforesaid adjudicated debt amount are recovered from the Defendant.

(iv) The defendant is given a time of thirty 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 properties, as aforesaid. Applicant Bank is also entitled to proceed against personal properties of the Defendant both moveable and immoveable and also proceed against the sole Defendant 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 Defendant 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 sole 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./619 of 2020 (arising out of O.A./977 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 10^th day of April, 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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