UNION BANK OF INDIA vs ARIJIT BOSE on 14 June 2024

1. **Arijit Bose**, Son of Asoke Kumar Bose, residing at 8, Subhas Pally, P.S.- Baranagar, North 24-Parganas, Kolkata – 700108.

..... Defendant

Counsel for parties:

For the Applicant Bank : Mr. Debaki Nandan Maiti, Ld. Advocate.

For the Defendant : *Ex-Parte***FINAL ORDER / JUDGMENT**

Delivered on 14.06.2024

Applicant, Union Bank of India instituted the present Application being the Original Application No.939 of 2018 filed in DRT-3, Kolkata on 22.11.2018 against single Defendant under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.25,99,633.67 (Rupees twenty five lacs ninety nine thousand six hundred thirty three and paise sixty seven) as on 31.10.2018 together with further interest @ 11.85% per annum, till the end of its actual payment and costs etc. 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 15.11.2019 and the same has been renumbered as T.A./ 456 of 2020 vide Ld. Registrar's order dated 02.07.2020.

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

(i) The defendant had applied and approached the applicant Bank for Transport Loan. On consideration of loan application, applicant Bank was pleased to grant / sanction a Transport / Term Loan of Rs.25,00,000/- (Rupees twenty five lakhs) in favour of the defendant vide sanction letter dated 03.09.2016. Copy of said sanction letter is annexed and marked with Letter 'A'.

(ii) In consideration of the applicant bank granting the said Transport Loan of Rs.25.00 lakhs to the defendant, the defendant executed and delivered the following security documents all dated 03.09.2016:

- (a) Demand Promissory Note for Rs.25.00 lakhs;

- (b) Hypothecation of vehicles Agreement (SD-10);

- (c) Letter of Continuity (AD-09)(M);

- (d) Letter of undertaking from the borrowers;

- (e) Interest Agreement (SD-24);

- (f) Term Loan Agreement (SD-19).

Copies of said documents are annexed and marked with Letters 'B', 'C', 'D', 'E', 'F' & 'G' respectively.

(iii) The defendant availed Transport Loan facility after execution of the security documents and hypothecated goods vehicle being No. WB – 23D 8056. Copy of Registration Certificate is annexed and marked with Letter 'H'.

3. The Defendant availed and enjoyed the said credit facility by opening Account in Bank's Salt Lake City Branch, Sector – II, Salt Lake, Kolkata – 700091. However, the defendant failed and neglected to operate the said Transport Loan Account. The Defendant did not repay the outstanding Bank's dues, agreed EMIs in Term Loan account and overdue interests in 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 31.10.2018. The applicant Bank finding no other alternative issued recall Notice dated 01.11.2018 upon the defendant to repay a sum of Rs.25,99,633.67, but the defendant did not comply the said notice; copy of said recall notice is annexed and marked with Letter 'I'. Certified copies of Statement of Account along with Certificate under Bankers' Books Evidence Act, with interest calculation sheet, have been filed to show and prove the dues (Letter 'J'), and future interest @ 11.85% per annum together with costs etc. till the end of its actual payment, 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 has not been effected, such has been recorded vide Ld. Registrar's order dated 07.11.2022 and 08.12.2022. At the request of Ld. Advocate of the applicant Bank, Ld. Tribunal was directed to serve the summons / notice upon the defendant by way of substituted service vide order dated 08.12.2022. 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) 'The Telegraph' in English and (ii) 'Aajkal' in Bengali, both dated 22.01.2023, such has been recorded vide Ld. Registrar's order dated 25.01.2023. 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 02.05.2024. Ld. Advocate of the applicant Bank has submitted argument on 02.05.2024.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by I. Krishna Shankar Ojha, Chief Manager of Bank's Salt Lake City Branch, CG 234, Sector – II, P.S.- Bidhan Nagar, Kolkata – 700091 along with the copy of documents executed by the Defendant. Copy of 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 same have been returned to Ms. Priyanka Dutta Chowdhury, Sr. Manager of Bank's Salt Lake City Branch, CF 335, Sector – I, Salt Lake, Kolkata on 31.08.2022 such has been recorded in Ld. Registrar's order dated 31.08.2022. The documents produced by the Applicant Bank are exhibited and annexed at 'A-1' to 'A-10'.

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

6. 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 Transport / Term Loan of Rs.25,00,000/-. Applicant Bank has proved the hypothecation goods vehicle being No. WB – 23D 8056.

7. On the point of limitation, Loan has been sanctioned on 03.09.2016, security documents have been executed on 03.09.2016 and original Application has been filed on 22.11.2018. As such, the original Application appears to have been filed well within the period of limitation.

8. Applicant Bank has stated that the outstanding balance in Term Loan Account (inclusive of accrued interests calculated upto 31.10.2018) for a sum of **Rs.25,99,633.67** (Rupees twenty five lacs ninety nine thousand six hundred thirty three and paise sixty seven) as on 31.10.2018, 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 @ 11.85% per annum, while in the Demand Promissory Note dated 03.09.2016 the rate of interest at MCLR plus spread of 2.40 basis point, with monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest which have been claimed by applicant Bank in Original Application, i.e. @ 11.85% per annum, with quarterly rests, from 01.11.2018, is allowed.

9. 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./456 of 2020 (arising out of O.A./939 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./456 of 2020 (arising out of O.A./939 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.25,99,633.67** (Rupees twenty five lacs ninety nine thousand six hundred thirty three and paise sixty seven) due and payable, inclusive of interest and other charges as calculated upto 31.10.2018; and interest for the period *pendente lite* and future rate @ 11.85% per annum, with quarterly rests, from 01.11.2018, 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 hypothecated movable assets, as under –

*"Hypothecated goods vehicle being No. WB – 23D 8056."*

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 immovable 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./456 of 2020 (arising out of O.A./939 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 14^th day of June, 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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