UNION BANK OF INDIA vs SMT KEYA CHAKRABORTY on 15 May 2024

Page No.

KOLKATA DEBTS RECOVERY TRIBUNAL NO. 2

ORDER SHEET (Continuation)

Union Bank of India

TA/323 of 2019 (OA/345 of 2018)

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

Vs

Smt. Keya Chakraborty & Anr.

<table border="1"> <thead> <tr> <th data-bbox="108 195 181 258">Date of Order</th> <th data-bbox="181 195 751 258">Order with Signature</th> <th data-bbox="751 195 883 258">Office action with date and dated Signature of parties when necessary</th> </tr> </thead> <tbody> <tr> <td data-bbox="108 258 181 905"> <p>10<br/>15.05.2024</p> </td> <td data-bbox="181 258 751 905"> <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./323 of 2019 (arising out of O.A./345 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="751 258 883 905"></td> </tr> </tbody> </table>

1

TA/323 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. 323 of 2019**

(arising out of O.A./345 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 South Dum Dum Branch, 18/1, Manujendra Dutta Road, Dum Dum Cant., Dist.- 24-Parganas (North), Kolkata – 700028, West Bengal.

..... Applicant Bank

-Versus-

- 1. **Smt. Keya Chakraborty**, Daughter of Sri Prabhash Kumar Chakraborty, having its residence at 22/D, Chaul Patty Road, Post Office – Beleghata, P.S.- Narkeldanga, Kolkata – 700010, West Bengal, and also at Flat No.3A, 2^nd Floor, Holding No.249, Green Park, under Ward No.19, P.S.- Airport, Dist.- North 24-Parganas, Kolkata – 700133, West Bengal.

- 2. **Smt. Chandra Chakraborty**, wife of Sri Prabhash Kumar Chakraborty, having its residence at 22/D, Chaul Patty Road, Post Office – Beleghata, P.S.- Narkeldanga, Kolkata – 700010, West Bengal, and also at Flat No.3A, 2^nd Floor, Holding No.249, Green Park, under Ward No.19, P.S.- Airport, Dist.- North 24-Parganas, Kolkata – 700133, 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 15.05.2024

Applicant (Union Bank of India), erstwhile Corporation Bank instituted the present Application being the Original Application No.345 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.22,64,883.00 (Rupees twenty two lacs sixty four thousand eight hundred eighty three) as on 25.04.2018 together with further interest 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./ 323 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. Advocate 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 had applied and approached the applicant Bank vide an Application dated 08.01.2017 for sanction a Home Loan. Upon consideration of the said application, Applicant Bank was pleased to grant / sanction a Corp. Home Loan of Rs.20,65,000/- (Rupees twenty lacs sixty five thousand) in favour of the defendants No.1 & 2 against the equitable mortgage of immovable property, vide sanction communication dated 02.03.2017, copies of loan application and sanction letter are annexed and marked as Annexure 'A-1' & 'A-2' respectively.

(ii) In consideration of the aforesaid Housing / Term Loan facility of Rs.20.65 lakhs availed by Defendants, the defendants executed the following security documents, as under:

- (a) Agreement for Term Loan dated 14.03.2017;

- (b) Undertaking letter to be obtained from the borrower dated 18.04.2017;

- (c) Letter of Undertaking dated 16.03.2017.

Copies of said documents are annexed and marked as Annexure 'A-3', 'A-4 & 'A-5' respectively.

(iii) To secure the Term Loan facility of Rs.20.65 lakhs, the defendant No.1 created equitable mortgage in respect of her immovable property (described in Schedule 'X-1' at page 24 and para 3A at page 9 & 10 of the O.A.) all that the self contained residential Flat by depositing original deed(s) being Deed No.190402351 for the year 2017 with the applicant Bank; copy of aforesaid Deed being No.190402351 for the year 2017 is annexed and marked as Annexure 'A-6'. Further, the defendant No.1 executed and delivered a Memorandum of deposit of Title Deed(s) confirming thereby creation of equitable mortgage ep 10/11/2020

Date 14.11.2020

of Flat (immovable property) vide Memorandum, of Deposit of Title Deed(s) dated 18.04.2017 and one Memorandum Agreement dated 18.04.2017 of the Deed being No. 190402351 for the year 2017 in favour of applicant Bank; copy of said Memorandum of deposit of Title Deeds and Memorandum Agreement are annexed and marked as Annexure 'A-7' & 'A-8' respectively.

(iv) Applicant Bank got valued the said immovable property through its empanelled valuer and the valuer submitted its report on 14.02.2017; copy of said valuation report is annexed and marked as Annexure 'A-9'.

5. The Defendants enjoyed the aforementioned Term Loan facility by opening Account in Defendant No.1's name in Applicant Bank's South Dum Dum Branch, 18/1, Manujendra Dutta Road, Dum Dum Cant., Kolkata – 700028. However, the defendants did not adhere to the terms and conditions of the facility. The Defendants did not repay the agreed EMIs and overdue interests in the loan Account. Inspite of repeated requests and personal contact made by the Applicant Bank, the defendants failed and neglected 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 30.08.2017. Considering aforesaid default and violation of the terms and conditions thereof, applicant Bank finding no other alternative issued notices U/s. 13(2) of Sarfaesi Act, 2002 dated 26.04.2018 upon the defendants calling upon them 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-10'. 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 (Annexure 'A-11'), and future interest @ 8.85% per annum with monthly rests from 26.04.2018, till realization of the entire due in full, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

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 / hand delivery has not been effected, 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 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) 'Bartaman' in Bengali, both dated 05.08.2023, such has been recorded vide Ld. Registrar's order dated 14.09.2023. 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. Advocate of the applicant Bank submitted arguments on 24.04.2024.

7. Applicant Bank has filed the evidence-on-affidavit affirmed by Amit Kumar, Branch Manager of Applicant Bank's South Dum Dum Branch, Dum Dum Cant., Kolkata along with the copies of original documents executed by the Defendants. Original documents have 4TA/323 of 2019 - DRT-2/Kol 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 Shri Mrinal Kanti Tah, Manager of Applicant Bank's South Dum Dum Branch on 10.02.2020, such has been recorded in Ld. Registrar-in-charge's order dated 10.02.2020. The documents produced by the Applicant Bank are exhibited and annexed at 'A-1' to 'A-11'.

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

9. Evidence-on-affidavit, filed by Applicant Bank, has remained unchallenged, unrebuted and its veracity cannot be put to dispute. Applicant Bank has corroborated the averments made in the O.A. Applicant Bank has proved the sanction of Home Loan of Rs.20,65,000/. Applicant Bank has proved the creation of equitable mortgaged of immovable property of defendant No.1.

10. On the point of limitation, Loan has been sanctioned on 02.03.2017; documents have been executed on 14.03.2017, 16.03.2017 & 18.04.2017; original Application has been filed on 05.05.2018. As such, the original Application appears to have been filed well within the period of limitation.

11. Applicant Bank has stated that the outstanding balance in Loan Account (inclusive of accrued interest and other charges as calculated upto 25.04.2018) is **Rs.22,64,883.00** (Rupees twenty two lacs sixty four thousand eight hundred eighty three) as on 25.04.2018, which is the amount claimed by the applicant Bank in the original Application, and the defendants No.1 & 2 are liable to repay, jointly and/or severally, 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 @ 8.85% per annum with monthly rests, while in the sanction letter dated 02.03.2017 the same rate of interest, i.e. @ 8.85% per annum; has been mentioned. Therefore, as the nature of loan is the Home / Term Loan, the *pendente lite* & future rate of interest @ 8.85% per annum, simple, from 26.04.2018, is allowed.

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./323 of 2019 (arising out of O.A./345 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./323 of 2019 (arising out of O.A./345 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.22,64,883.00** (Rupees twenty two lacs sixty four thousand eight hundred eighty three) due and payable, inclusive of interest and other charges as calculated upto 25.04.2018; and interest for the period *pendente lite* and future rate @ 8.85% per annum, simple, from 26.04.2018, 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 pendent 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 24 and para 3A at page 9 & 10 of the original Application, as under –

*"ALL THAT the self contained residential Flat being No.3A, on the Second floor, North West side with lift facility, measuring a super built up area of 850 sq.ft. more of less consisting of two Bed rooms, one dining cum Drawing Room, one kitchen, two toilets and one Balcony of the building lying and situated at Municipal Holding No.249, Green Park, Kolkata – 700133, within the jurisdiction of Airport Police Station within the local limits of Madhyamgram Municipality under Ward No.28, Additional District Sub-Registration Office at Bidhannaga (Salt Lake) in the District of North 24-Parganas, together with all door, windows fixtures and fittings in sanitary and electrical points undivided proportionate share of land Mouza – Sahara, J.L. No.46, R.S. No.3, Touzi No.146, Paraganas Anwarpur, comprised in R.S. Dag No.625 under sabek Khatian No.64, R.S. Khatian No.531, corresponding to L.R. Dag No.1216, under L.R. Khatian No.420, being Municipal Holding No.249, Green Park, Kolkata – 700133, within the Airport Police Station, Madhyamgram Municipality, under Ward No.28, Additional District Sub-Registration Office at Bidhanagar, Registered recorded in Book-1 and CD Volume No.1904-2017, Pages – 92496 to 92526, being No.190402351 for the year 2017, stand in favour of Smt. Keya Chakraborty."*

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 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./323 of 2019 (arising out of O.A./345 of 2018) is allowed and stands disposed of.

This order is dictated and corrected by the undersigned and pronounced on this the 15^th day of May, 2024.

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

(Arbind Madhav) Presiding Officer DRT-2, Kolkata

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