UNION BANK OF INDIA vs RABIUL MOLLA on 24 April 2024

Page No.

KOLKATA DEBTS RECOVERY TRIBUNAL NO. 2

ORDER SHEET (Continuation)

TA/324 of 2019 (O.A./344 of 2018)

Union Bank of India (erstwhile Corporation Bank)

Case No.

Vs Rabiul Molla & Anr.

<table border="1"><thead><tr><th data-bbox="121 203 198 268">Date of Order</th><th data-bbox="198 203 771 268">Order with Signature</th><th data-bbox="771 203 903 268">Office action with date and dated Signature of parties when necessary</th></tr></thead><tbody><tr><td data-bbox="121 268 198 925"><p><u>16</u><br/>24.04.2024</p></td><td data-bbox="198 268 771 925"><p>Counsel for the parties:<br/>Ms. Smruti Rekha Mishra, Ld. Advocate for the applicant Bank.<br/>None appears for the defendants.<br/>T.A./324 of 2019 (arising out of O.A./344 of 2018) is allowed and disposed of.<br/>Final order / Judgment is in separate sheet.<br/>File be consigned to record room.<br/>Order be uploaded on the Tribunal's website.</p><p style="text-align: right;"><br/>(Arbind Madhav)<br/>Presiding Officer<br/>DRT-2, Kolkata</p></td><td data-bbox="771 268 903 925"></td></tr></tbody></table>

1

TA/324 of 2019 – DRT-2/Kol

**DEBTS RECOVERY TRIBUNAL - 2, KOLKATA**

Jeevan Sudha Bldg. 07^th Floor, 42/C, J.L. Nehru Road, Kolkata – 700071

**Before Shri Arbind Madhav, Presiding Officer**

**T.A. No. 324 of 2019**

(arising out of O.A./344 of 2018)

In the matter of -

**Union Bank of India** (erstwhile Corporation Bank) is a body corporate duly constituted under the provisions of Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, having its Head Office at 239, Vidhan Bhawan Marg, Mumbai – 400021, and carrying on business, *inter-alia*, at Baguihati Branch, Parvati Vihar, Ground Floor, VIP Road, Baguihati, North 24-Parganas, Pin – 700059, West Bengal.

..... Applicant Bank

-Versus-

- 1. **Rabiul Molla**, Son of Daud Molla, having its residence at Village – Narayanpur, P.O.- B Narayanpur, P.S.- Bhangar, Dist.- South 24-Parganas, Bhangar, West Bengal.

- 2. **Smt. Acchiya Bibi Molla**, Wife of Rabiul Molla, having its residence at Village – Narayanpur, P.O.- B Narayanpur, P.S.- Bhangar, Dist.- South 24-Parganas, Bhangar, 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 24.04.2024

Applicant (Union Bank of India), erstwhile Corporation Bank instituted the present Application being the Original Application No.344 of 2018 filed in DRT-3, Kolkata on 07.05.2018 against two Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.17,03,745.00 (Rupees seventeen lacs three thousand seven hundred forty five) as on 25.02.2018 along with interest @ 11.65% per annum with monthly rests, 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./ 324 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. Advocate 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. Advocate of the Applicant Bank on 09.10.2020, such has been recorded in Ld. Registrar's order dated 09.10.2020.

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

(i) The Defendant No.1 & 2 are the co-borrower and executed all the banking and security documents as borrower. At the request of defendants No.1 & 2 vide an application dated 04.03.2015 applied the applicant Bank for home loan; upon consideration of loan application, applicant Bank was pleased to grant / sanction a Corp. home loan with the extent of Rs.17,80,000/- (Rupees seventeen lacs eighty thousand) in favour of the defendants No.1 & 2 against the equitable mortgage of immovable property(s) of respective defendants, vide sanction communication dated 23.03.2015, copies of loan application and sanction letter are annexed and marked as Annexure 'A-1' & 'A-2' respectively.

(ii) In consideration of the aforesaid credit facility availed by Defendants No.1 & 2, the defendants executed the following security documents in favour of applicant Bank all dated 25.03.2015

- (a) Letter of disbursement of loan;

- (b) Request for Overdraft facility;

- (c) Agreement for Term Loan;

- (d) Letter of Undertaking.

Copies of said documents are annexed and marked as Annexure 'A-3' to 'A-6' respectively.

(iii) To secure the said home / term loan facility the defendant No.1 created equitable mortgage in respect of his immovable property (described in Schedule 'X-1' at page 23 of the O.A.) by depositing title deeds being No.04219 for the year 2008 and along with Declaration Deed being No.1450 for the year 2015 with the applicant Bank and stand in the name of Sri Rabiul Molla; copy of Deeds being No.04219 and along with Declaration Deed being No.1450 are annexed and marked as Annexure 'A-7' & 'A-8'. Further, the defendant No.1 executed and delivered a Memorandum of Deposit of Title Deeds confirming thereby creation of equitable mortgage of Flat (immovable property) vide Memorandum of Deposit of Title Deeds dated 25.03.2015; copies of said Memorandum of deposit of Title Deeds dated 25.03.2015 and letter from borrower of deposit of Title Deed dated 25.03.2015 are annexed and marked as Annexure 'A-9' & 'A-10' respectively.


3TA/324-of 2019 – DRT-2/Kol

(iv) Further, in consideration of the applicant having agreed to grant the said loan to the defendants No.1 & 2, the defendant No.1 executed one Request for Disbursement loan dated 31.08.2015, in favour of applicant Bank; copy of the same is annexed and marked as Annexure 'A-11'.

(v) Applicant Bank got valued the mortgaged immovable property through its empanelled valuer and the valuer submitted its valuation report to the applicant bank on 18.04.2018; copy of said valuation report is annexed and marked as Annexure 'A-12'.

5. The Defendants enjoyed the aforementioned home / term loan facility by opening Account in Defendant No.1's name in Applicant Bank's Baguihati Branch, Parvati Vihar, VIP Road, North 24-Parganas, Pin – 700059. 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 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 31.12.2017. Thereafter, the applicant Bank issued a re-call / demand notice dated 01.05.2018 through its Advocate demanding 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-13'. 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-14'), and future interest @ 11.65% per annum, from 26.02.2018 with monthly rests. 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 both the Defendants has not been effected by postal service and hand delivery, such has been recorded vide Ld. Registrar's order dated 05.12.2022. At the request of Ld. Advocate of the applicant Bank, Ld. Tribunal is directed to serve the summons upon both the defendants by substituted service, i.e. by way of paper publication; and Ld. Advocate for applicant Bank has brought on record the affidavit of service on publication upon the Defendants No.1 & 2 along with relevant portion of paper cuttings in two newspapers, namely (i) 'The Telegraph' in English and (ii) 'Barfaman' in Bengali, both dated 05.08.2023, such has been recorded vide Ld. Registrar's order dated 14.09.2023. Hence, service of notices upon both the defendants were completed by paper publication. Despite service, the defendants did not appear nor filed the written statement; thus, both the defendants were ordered to be proceeded *ex-parte* vide order dated 21.03.2024. 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 09.10.2020, such has been recorded in Ld. Registrar's order dated 09.10.2020. Ld. Counsel of the applicant Bank submitted arguments on 21.03.2024.

7. Applicant Bank has filed the evidence-on-affidavit affirmed by Manish Kumar Tiwary, Chief Manager of Applicant Bank's Baguihati Branch, Parvati Vihar, VIP Road, North 24-Parganas, Pin – 700059 along with copy of original documents executed by the 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 Sri Manish Kumar Tiwary, Chief Manager of Applicant Bank on 10.02.2020, such has been recorded in Ld. Registrar's order dated 10.02.2020. The documents produced by the Applicant Bank are exhibited being Exhibit 'A-1' to 'A-14'.

I have heard the Ld. Advocate 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 Sri Manish Kumar Tiwary, Chief Manager of Applicant Bank on 10.02.2020). Applicant Bank has corroborated the averments made in the O.A. Applicant Bank has proved the sanction of Corp. Home loan to the extent of Rs.17.80 lakhs. Applicant Bank has proved the creation of equitable mortgage of immovable property(s).

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 stated that the outstanding debit balance in the loan Account (inclusive of accrued interest and other charges as calculated upto 25.02.2018) is **Rs.17,03,745.00** (Rupees seventeen lacs three thousand seven hundred forty five) as on 25.02.2018, 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 @ 11.65% per annum, while in sanction letter dated 23.03.2015 the rate of interest @ 10.25% per annum (floating) on monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 10.25% per annum, simple, from 26.02.2018, is allowed.

11. On the point of limitation, Loan has been sanctioned on 23.03.2015; documents have been executed on 23.03.2015; original Application has been filed on 07.05.2018. In consideration of the applicant having agreed to grant and/or continuing to grant the loan to the defendants, the defendant No.1 executed one Request Letter dated 31.08.2015 for disbursement the loan in favour of applicant Bank confirming the said loan has been granted in favour of the defendants. 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./324 of 2019 (arising out of O.A./344 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./324 of 2019 (arising out of O.A./344 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.17,03,745.00** (Rupees seventeen lacs three thousand seven hundred forty five) due and payable, inclusive of interest and other charges as calculated upto 25.02.2018; and interest for the period *pendente lite* and future rate, i.e. @ 10.25% per annum, simple, from 26.02.2018, 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 mortgage immovable property(s); described in 'Schedule – X-1' at page 23 of the original Application, are as under –

"ALL THAT piece and parcel of Bastu land measuring about 12 Decimals, i.e. 5226 sq.ft. be the same a little more or less comprised in Mouza – Narayanpur, J.L. No.74, Touzi No.635, 640, L.R. Khatian No.-378, R.S. Khatian No.-2160, 2165, 2161, 2162, 2163, 2164, R.S. Dag No.-1200/2492, 1439, Police Station – Bhangar, Under South 24-Parganas, West Bengal and Registered and recorded vide Book No.-1, CD Volume No.-10, Page No.2310 to 2326, Being No.04219 for the year of 2008 and along with Declaration Deed being No.1450 for the year of 2015, Book No.1, CD Volume No.-4, Page No.-3660 to 3664, stand in the name of Sri Rabiul Molla."

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 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./324 of 2019 (arising out of O.A./344 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 24^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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