STATE BANK OF INDIA vs MD NASIM on 17 May 2024

Page No.

KOLKATA DEBTS RECOVERY TRIBUNAL NO. 2

ORDER SHEET (Continuation)

State Bank of India

TA/293/2020

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

Vs

Md. Naşim

<table border="1"> <thead> <tr> <th data-bbox="141 211 214 274">Date of Order</th> <th data-bbox="214 211 798 274">Order with Signature</th> <th data-bbox="798 211 925 274">Office action with date and dated Signature of parties when necessary</th> </tr> </thead> <tbody> <tr> <td data-bbox="141 274 214 922"> <p style="text-align: center;">13<br/>17.05.2024</p> </td> <td data-bbox="214 274 798 922"> <p>Counsel for the parties:</p> <p>Ms. Aahana Rakshit, Id. Advocate representing Mr. Anirban Pramanick, Id. Advocate for the Applicant bank</p> <p>None appears for the defendant.</p> <p>T.A./293 of 2020( arising out of O.A/602 of 2018) is allowed and disposed of.</p> <p>Final order / Judgment is in separate sheet.</p> <p>File be consigned to record room.</p> <p>Order be uploaded on the Tribunal's website.</p> <div style="text-align: right; margin-top: 100px;"> <br/> (Arbind Madhav)<br/> Presiding Officer<br/> DRT-2, Kolkata </div> <p style="margin-top: 100px;">tb</p> </td> <td data-bbox="798 274 925 922"></td> </tr> </tbody> </table>

1

TA/293 of 2020 – 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. 293 of 2020**

(arising out of O.A./602 of 2018)

**In the matter of** -

**State Bank of India** (formerly State Bank of Travancore), a banking institution and a body corporate constituted, incorporated and formed by an under the provisions of the State Bank of India Act, 1955 and carrying on their banking business, *inter-alia*, amongst others at their Rajarhat Branch, Swagat Chinar Complex, Block-A, Rajarhat Expressway, P.S.-Baguihati, Kolkata – 700157, District – 24-Parganas (North), represented by Small & Medium Enterprises City Credit Centre, commonly known as "SMECCC", 1, Strand Road, Samriddhi Bhawan, Annex Building, 4^th Floor, P.S.- Hare Street, Kolkata – 700001.

..... Applicant Bank

-Versus-

- 1. **Md. Nasim**, Son of Md. Siddique, carrying on business as proprietor under the name and style of M/s Nasim Garments from T-288, Bara Bagan Lane, Meetha Talab, Kolkata – 700018.

.. ..... Defendant

Counsel for parties:

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

**FINAL ORDER / JUDGMENT**

Delivered on 17.05.2024

Applicant, State Bank of India, (formerly State Bank of Travancore) instituted the present Application being the Original Application No.602 of 2018 filed in DRT-3, Kolkata on 18.07.2018 against single Defendant under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.11,67,076.00 (Rupees eleven lacs sixty seven thousand seventy six) as on 11.06.2018 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 26.10.2019 and the same has been renumbered as T.A./ 293 of 2020 vide Ld. Registrar's order dated 10.06.2020.

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

(i) That the sole Defendant is the borrower of the loan account. On 09.06.2016 the defendant had applied and approached the State Bank of Travancore, Rajarhat Branch, Kolkata – 700157, which has been merged into State Bank of India as per Gazette of India Notification dated 22.02.2017, with effect from 01.04.2017 for cash credit facility (Mudra Loan), and upon consideration of Loan Application, 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 vide arrangement letter dated 23.06.2016.

(ii) At the time of sanctioning of said credit facility, the effective rate of MCLR was @ 9.85% per annum with monthly rests. The primary security for the advance was hypothecation of stocks and receivables be it present or future in the name of the firm (described in Schedule at page 12 of the O.A.). Copy of loan application dated 09.06.2016 is annexed and marked with letter 'A' and Exhibit AW-1; copy of arrangement / sanction letter dated 23.06.2016 is annexed and marked with letter 'B' and Exhibit AW-2.

(iii) In consideration of the aforesaid cash credit facility of Rs.10.00 lakhs, the defendant executed the hypothecation cum working capital agreement; copy of said document dated 23.06.2016 is annexed and marked with Letter 'C' and Exhibit – AW-3.

3. The Defendant availed and enjoyed the said credit facility by opening Account in Defendant's name in Rajarhat Branch, Chinar Complex, Rajarhat Expressway, Kolkata – 700157. However, the defendant failed and neglected to abide by the terms and conditions of the facility. 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 19.09.2017. Thereafter, the applicant Bank issued legal notice dated 09.07.2018 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 'E' and Exhibit AW-5. 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 'D' and Exhibit AW-4), 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 and hand delivery could not be effected vide order dated 14.03.2019. 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 Defendant along with relevant portion of paper cuttings in two newspapers, namely (i) 'Eastern Chronicle' in English and (ii) 'Aajkal' in Bengali, both dated 11.08.2022, such has been recorded vide Ld. Registrar's order dated 12.04.2023. 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 25.04.2024. Written notes of arguments has been filed by the applicant Bank on 14.05.2024.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Diptendu Kumar Rakshit, Deputy Manager of Bank's SMECCC, 1, Strand Road, Samriddhi Bhawan, Annexe Building, Kolkata – 700001 along with the copies 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 after verification the original documents have been returned to Shri Chinmoy Dutta, Deputy Manager of Bank's SMECCC, 1, Strand Road, Samriddhi Bhawan, Annexe Building, Kolkata on 19.01.2021, such has been recorded in Ld. Registrar's order dated 19.01.2021. The documents produced by the Applicant Bank are exhibited and annexed at 'AW-1' to 'AW-5'.

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

7. Evidence-on-affidavit, filed by Applicant Bank, has remained unchallenged, un-rebutted 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 Cash Credit facility to the limit of Rs.10.00 lakhs. Applicant Bank has proved the hypothecated movable assets.

8. On the point of limitation, Loan has been sanctioned on 23.06.2016, security documents have been executed on 23.06.2016 and original Application has been filed on 18.07.2018. As such, the original Application appears to have been filed well within the period of limitation.

9. Applicant Bank has stated that the outstanding balance in Cash Credit Account (inclusive of Interest calculated upto 11.06.2018) is **Rs.11,67,076.00** (Rupees eleven lacs sixty seven thousand seventy six) as on 11.06.2018, 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 23.06.2016 the rate of interest @ 9.85% per annum, at monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 9.85% per annum, with quarterly rests, from 12.06.2018, 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./293 of 2020 (arising out of O.A./602 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./293 of 2020 (arising out of O.A./602 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.11,67,076.00** (Rupees eleven lacs sixty seven thousand seventy six) due and payable, inclusive of interest and other charges as calculated upto 11.06.2018; and interest for the period

*pendente lite* and future rate @ 9.85% per annum, with quarterly rests, from 12.06.2018, 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 hypothecated movable assets; described in 'Schedule' at page 12 of the original Application, as under –

*"Hypothecation of stocks and receivables be it present or future in the name of the firm, M/s Nasim Garments, situated at T-288, Bara Bagan Lane, Meetha Talab, Kolkata – 700018."*

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 forty-five 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./293 of 2020 (arising out of O.A./602 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 17^th day of May, 2024.

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

17.5.24 (Arbind Madhav) Presiding Officer DRT-2, Kolkata