UNION BANK OF INDIA vs SMT ANURUPA CHATTERJEE on 3 May 2024

Page No.**KOLKATA DEBTS RECOVERY TRIBUNAL NO. 2****ORDER SHEET**

(Continuation)

Union Bank of India

TA/258 of 2019

Case No. \_\_\_\_\_ )

Vs

Smt. Anurupa Chatterjee & Anr.

<table border="1"> <thead> <tr> <th data-bbox="111 191 184 256">Date of Order</th> <th data-bbox="184 191 751 256">Order with Signature</th> <th data-bbox="751 191 880 256">Office action with date and dated Signature of parties when necessary</th> </tr> </thead> <tbody> <tr> <td data-bbox="111 256 184 905"> <p>12<br/>03.05.2024</p> </td> <td data-bbox="184 256 751 905"> <p>Counsel for the parties:<br/>Ms. Munmun Dubey, Ld. Advocate for the applicant Bank.<br/>None appears for the defendants.<br/>T.A./258 of 2019 (arising out of O.A./280 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="751 256 880 905"></td> </tr> </tbody> </table>

1

TA/258 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. 258 of 2019**

(arising out of O.A./280 of 2018)

**In the matter of -**

**Union Bank of India** is a body corporate duly constituted under the provisions of Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, having it's Head Office at 239, Vidhan Bhawan Marg, Mumbai – 400021, and carrying on business, *inter-alia*, at a Branch Office at P-539, New Alipore, Block – N, First Floor, P.S.- New Alipore, Kolkata – 700053,

..... Applicant Bank

-Versus-

- 1. **Smt. Anurupa Chatterjee**, daughter of Anjan Kumar Dutta, residing at 14B/1B, Anil Mitra Road, Kolkata – 700019, and also residing at Flat on 01^st Floor, Premises No.151, Shyama Prasad Mukherjee Road, P.O.- Kalighat, P.S.- Tollygunge, Kolkata – 700026.

- 2. **Sri Ayanjit Kumar Chatterjee**, residing at Flat on 01^st Floor, Premises No.151, Shyama Prasad Mukherjee Road, P.O.- Kalighat, P.S.- Tollygunge, Kolkata – 700026.

.. ..... Defendants

Counsel for parties:

For the Applicant Bank : Ms. Mun Mun Dubey, Ld. Advocate For the Defendants : *Ex-Parte*.

**FINAL ORDER / JUDGMENT**

Delivered on 03.05.2024

Applicant, Union Bank of India instituted the present Application being the Original Application No.180 of 2018 filed in DRT-3, Kolkata on 19.04.2018 against two Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.74,40,724.00 (Rupees seventy four lacs forty thousand seven hundred twenty four) as on 31.03.2018 together with further interest thereon at the contractual rate, base rate + 3% per annum, 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 19.10.2019 and the same has been renumbered as T.A./ 258 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:

(i) The Defendants No.1 & 2 are the borrower in the instant O.A. case. The defendant No.1 approached and applied the applicant Bank for grant of financial assistance / Term Loan under Union Mortgage Scheme vide loan application dated 27.06.2014. Upon consideration of loan application, applicant Bank was pleased to grant / sanction a Fund Based Credit facility of Rs.50,00,000/- (Rupees fifty lacs) in favour of defendant No.1 for the purpose of meeting her personal business requirements, vide sanction letter dated 30.06.2014. The defendant No.1 agreed to pay interest to the applicant Bank on the principal amount of the loan @ 13% per annum with an EMI of Rs.74655/- each payable in 120 equated monthly installments commencing from July 2014. Copies of loan application and sanction letter are annexed and marked as Annexure 'A' & 'B' respectively.

(ii) In consideration of the aforesaid credit facility of Rs.50.00 lakhs availed by Defendants, the defendant No.1 executed the following security documents all dated 30.06.2014:

- (a) Agreement on Base Rate;

- (b) Demand Promissory Note for Rs.50.00 lakhs;

- (c) Letter of continuity;

- (d) General Term Loan Agreement;

- (e) Letter of undertaking / fresh promise in case of time barred debts.

Copies of said documents are annexed and marked as Annexure 'C', 'D', 'E', 'F' & 'G' respectively.

(iii) Pursuant to the above documents and in order to secure the sanctioned loan amount, the defendant No.2 executed unconditional, irrevocable and continuing deeds of guarantee to the extent of Rs.50 lakhs on 30.06.2014 in favour of applicant Bank. For further security of the aforementioned sanctioned loan amount, the defendant created equitable mortgage in respect of her immovable property (described in Schedule-II at page 27 & 28 of the O.A.) by depositing title deed being Deeds with the applicant Bank. Copy of Memorandum of deposit of Title Deed(s) dated 30.06.2014 in evidence of creation of equitable mortgage, Deed of Conveyance dated 16.12.2009 are annexed and marked as Annexure 'H' & 'I'.

(iv) Pursuant to the said documents executed and securities created, the applicant Bank has disbursed the loan amount to the defendant No.1's loan account. Subsequently, by an application dated 20.08.2014, the defendant No.1 applied for additional loan of Rs.25.00 lakhs under Union Mortgage Scheme for the purpose of further funds. On the basis of such application, applicant Bank was pleased to grant / sanction a Term Loan of Rs.25,00,000/- (Rupees twenty five lakhs) to the defendant No.1, vide Facility Letter dated 22.08.2014. The terms and conditions of the Facility Letter dated 22.08.2014 were duly accepted by Defendant No.1 and agreed to pay interest on the principal amount of the loan @ 13% per annum. Copies of loan application and sanction letter dated 22.08.2014 are annexed and marked as Annexure 'J' & 'J-1'.

(v) In consideration of the said sanctioned loan of Rs.25.00 lakhs, the defendants executed the following security documents all dated 25.08.2014 in favour of applicant Bank:

- (a) Agreement on Base Rate;

- (b) Demand Promissory Note;

- (c) Letter of continuity;

- (d) General Term Loan Agreement;

- (e) Letter of undertaking from the borrowers.

Copies of said documents are annexed and marked as Annexure 'K', 'L', 'M', 'N' & 'O' respectively.

(vi) The property mentioned hereinabove of the defendant No.1 which is already mortgaged with the applicant Bank for the term loan of Rs.50.00 lakhs has been extended to also cover the term loan of Rs.25.00 lakhs as collateral security. The last payment made by the borrower / defendants was on 30.11.2017 amounting to Rs.1,84,959/- and Rs.91,645/- in both the accounts.

3. The Defendants enjoyed the aforementioned loan facility by opening Account in Defendant No.1's name in Applicant Bank's P-539, New Alipore Branch, Kolkata – 700053. 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 31.11.2017, indicating in written notes of arguments filed by Bank on 03.05.2024. The applicant Bank finding no other alternative issued letters dated 02.12.2017 for two Accounts calling upon the defendants No.1 & 2 to repay the overdue amount and regularize the accounts, but the defendants did not comply the said letters; copy of letters dated 02.12.2017 are annexed and marked as Annexure 'P' & 'Q'. Subsequently, the defendants No.1 & 2 signed and executed the Debit Balance Confirmation letter on 25.08.2015 for the loan of Rs.25.00 lakhs and again on 06.08.2016 for the sum of Rs.46,58,161.51 in respect of A/c No. 353206680000011 and for the sum of Rs.23,11,480.00 in respect of A/c No. 353206680000012 confirming the outstanding balance in loan Accounts; copies of said balance confirmation letters are annexed and marked as Annexure 'R' & 'S'. Certified copies of Statement of Accounts along with Certificate under Bankers' Books Evidence Act, with interest, have been filed to show and prove the dues, and future interest thereon at the contractual rate viz. base rate + 3% per annum from 01.04.2018, till realization, of the entire due in full, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

4. The Notices / summons were sent to Defendants No.1 & 2 by the Tribunal; service of Notices / summons upon the both the Defendants were not effected, such has been recorded vide Ld. Registrar's order dated 22.08.2023. At the request of Ld. Advocate of the applicant Bank, Ld. Tribunal is directed to serve the summons upon both the defendants 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) 'Times of India' in English and (ii) 'Aajkal' in Bengali, both dated 18.10.2023, such has been recorded vide Ld. Registrar's order dated 22.11.2023. Despite service, the defendants did not appear nor filed the written statement; thus, both the defendants are hereby ordered to be proceeded *ex-parte*. Ld. Advocate of the applicant Bank has filed the written notes of argument on 03.05.2024 stating therein the brief facts in this matter as has been narrated in the original application.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Bivash Kumar Mishra, Branch Manager of Applicant Bank's 134 P-539 New Alipore Branch, Kolkata – 700053 along with the 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 the original documents have been returned to Sri Samir Kumar Maiti, Manager of Bank's New Alipore Branch, P-539 New Alipore, Kolkata – 700053 on 02.01.2023, such has been recorded in Ld. Registrar's order dated 02.01.2023. The documents produced by the Applicant Bank are exhibited and annexed at 'A' to 'S'.

I have heard the Ld. Advocate 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 Sri Samir Kumar Maiti, Manager of Bank's New Alipore Branch, Kolkata – 700053 on 02.01.2023). Applicant Bank has corroborated the averments made in the O.A. Applicant Bank has proved the sanction of Term Loan facility of Rs.50.00 lakhs on 30.06.2014 and additional Term Loan for Rs.25.00 lakhs on 22.08.2014.

Applicant Bank has proved the creation of equitable mortgaged of immovable property(s) in respect of defendant No.1 by executing the Memorandum of Deposit of Title Deed dated 30.06.2014.

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. On the point of limitation, Loan has been sanctioned on 30.06.2014 & 22.08.2014; documents have been executed on 30.06.2014 & 25.08.2014; original Application has been filed on 19.04.2018. The defendants No.1 & 2 signed and executed the Debit Balance Confirmation letters dated 25.08.2015 and again on 06.08.2016 confirming the outstanding balance in loan accounts. As such, the original Application appears to have been filed well within the period of limitation.

9. Applicant Bank has stated that the outstanding debit balance in Loan Accounts (A/c No.353206680000011 for term loan of Rs.50.00 lakhs and A/c No. 353206680000012 for term loan of Rs.25.00 lakhs) [inclusive of uncharged interest calculated from 01.12.2017 to 31.03.2018] for a sum of Rs.49,75,464.00 and Rs.24,65,260.00 respectively, an aggregate sum of **Rs.74,40,724.00** (Rupees seventy four lacs forty thousand seven hundred twenty four) as on 31.03.2018, 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 at the contractual rate, i.e, base rate + 3% per annum from 01.04.2018, while in Demand Promissory Note dated 30.06.2014 and 25.08.2014 the rate of interest @ 13% per annum with monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest. @ 13% per annum from 01.04.2018, is allowed.

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./258 of 2019 (arising out of O.A./280 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A. being T.A./258 of 2019 (arising out of O.A./280 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.74,40,724.00** (Rupees seventy four lacs forty thousand seven hundred twenty 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 @ 13% per annum from 01.04.2018, 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 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 hypothecated movable assets described in Schedule-I at page 27 of the original application, as under –

"1^st charge on Assembling of Computers and selling of Hardware items which includes all raw materials, semi-finished and finished goods, consumable stores & spares and movable properties of any kind now or at any time hereafter belonging to or at the disposal of the borrower (Defendants No.1 & 2 herein) and Book Debts and all other movables, both present and future, whether now lying loose or in cases or which are now lying or stored in or about of shall hereinafter from time to time during the continuance of the security of these presents be brought into or upon or be stored or bein or about of the Borrower's depot / godown at First Floor, 151, Shyama Prasad Mukherjee Road, Kolkata – 700026, in the State of West Bengal or wherever else the same may be or be held by any party to the order or disposition of the Borrower or in the course of transit or on high seas or on order or delivery, howsoever and where so ever in the possession of the Borrower and either by way of substitution or addition;"

And, mortgage immovable property; described in 'Schedule-II at page 27 of the original Application, as under –

"ALL THAT piece and parcel of entire first floor measuring about 1450 sq.ft. super built up area more or less or two storied building consisting of three bed rooms, one kitchen, one toilet, two verandah lying and situated of the said building earmarked for the purchaser but together with undivided proportionate impartable share and/or interest in the said land being the premises at Premises No.151, Shyama Prasad Mukherjee Road, Kolkata – 700026 within the limits of Kolkata Municipal Corporation under Ward No.87, comprised in Holding No.37, Sub-Division – VI, Dihi Panchannogram, Police Station – Tollygunge, Sub Registration Office –

③

Alipore (formerly portion of plot No.213 of the Calcutta Improvement Scheme No.IVA and thereafter No.98/6, Russa Road, Kolkata within the limits of Kolkata Municipal Corporation, Ward No.87, in the District of 24-Parganas (South) and butted and bounded, as follows:

<table border="0"> <tr> <td>On the North</td> <td>-</td> <td>By 10/4, S.R. Das Road and 141, Shyama Prasad Mukherjee Road ;</td> </tr> <tr> <td>On the South</td> <td>-</td> <td>By 20 feet wide municipal road of the Kolkata Municipal Corporation (being part of Shyama Prosad Mukherjee Road;</td> </tr> <tr> <td>On the East</td> <td>-</td> <td>By 149, Shyama Prosad Mukherjee Road;</td> </tr> <tr> <td>On the West</td> <td>-</td> <td>By 153, Shyama Prosad Mukherjee Road."</td> </tr> </table>

And, Particulars of Bankers' goods, in Schedule-III at page 28 of the O.A., as under:

"Stock of raw materials, semi finished and finished goods, consumable stores, book debts and such other movables as may be agreed to by the Applicants."

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. being T.A./258 of 2019 (arising out of O.A./280 of 2018), is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 03^rd day of May, 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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