UNION BANK OF INDIA vs SRI TAPAN SINGHA on 25 June 2024

1. **Sri Tapan Singha**, Son of Sri Jogen Singha, residing at 9, Kamar Para, P.S.- Behala, Kolkata – 700008, and also at Second Floor, Premises No. 87/12/166A/D/1, Raja S.C. Mullick Road, P.S.- Jadavpur, Kolkata – 700047.

..... Defendant

Counsel for parties:

For the Applicant Bank : Ms. Mun Mun Dubey, Ld. Advocate For the Defendant : *Ex-Parte***FINAL ORDER / JUDGMENT**

Delivered on 25.06.2024

Applicant, Union Bank of India instituted the present Application being the Original Application No.279 of 2018 filed in DRT-3, Kolkata on 19.04.2018 against single Defendant under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.16,92,560.00 (Rupees sixteen lacs ninety two thousand five hundred sixty) as on 31.03.2018 together with further interest at the contractual rate, 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 19.10.2019 and the same has been renumbered as T.A./ 259 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) That the Defendant had applied and approached before the applicant Bank for purchase of House / Flat vide loan Application dated 20.01.2011; copy of loan Application Form dated 20.01.2011 is annexed and marked as Annexure 'A'. Upon consideration of loan Application, applicant Bank was pleased to grant / sanction a Term / Housing Loan of Rs.10,50,000/- (Rupees ten lacs fifty thousand) in favour of the defendant vide sanction letter dated 20.01.2011. The terms and conditions of the Loan facility letter dated 20.01.2011 was duly accepted by the defendant. Copy of said facility letter dated 20.01.2011 is annexed and marked as Annexure 'B'.

(ii) In consideration of the aforesaid Term Loan facility of Rs.10.50 lakhs, the defendant executed the following security documents all dated 20.01.2011:

- (a) Demand Promissory Note for Rs.10.50 lacs;

- (b) Housing Loan Agreement;

- (c) New Housing Loan Agreement with fixed and floating rate of interest;

- (d) Letter of Guarantee;

- (e) Letter of Undertaking from borrower.

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

(iv) In order to secure the aforesaid Term Loan facility, the defendant created equitable mortgage in respect of his immovable property (described in Schedul – I at page 21 and para 3A at page 4 of the O.A.) by depositing original title deed with the Bank on 17.02.2011 as a security for the repayment of dues standing in the name of the Defendant. Copy of Memorandum of deposit of Title Deed dated 17.02.2011 in evidence of creation of mortgage, Deed of Conveyance dated 21.01.2011 being No.00449 for the year 2011 are annexed and marked as Annexure 'H' & 'I'.

3. The Defendant availed and enjoyed the said Term Loan facility by opening Account in Bank's Tollygunge Karunamoyee Branch, 211, Ram Mohan Roy Road, Kolkata – 700008. The loan amount disbursed on 20.01.2011 amount of Rs.10,50,000/- to the borrower's account. However, the defendant failed and neglected to abide by the terms and conditions of the facility. The Defendant did not repay the agreed EMIs of loan amount and overdue interests in loan Account. Since the defendant did not pay any attention to regularize the Account inspite of repeated requests and personal contact made by the Applicant Bank, the Account became out of order and was classified as N.P.A. However, these requests were ignored by the defendant and the applicant Bank finding no other alternative issued notice U/s 13(2) of the Sarfaesi Act, 2002 dated 12.03.2013 demanding to repay the outstanding Bank's dues, but the defendant did not comply the said notice; copy of Notice is annexed and marked as Annexure 'J'. 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 'K'), and future interest at the contractual rate, till the date of 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 / hand delivery has not been 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 the defendant 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) '*The Statesman*' in English and (ii) '*Bartaman*' in Bengali, both dated 18.11.2023, such has been recorded vide Ld. Registrar's order dated 22.11.2023. 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 13.03.2024. Written notes of arguments has been filed by the applicant Bank on 03.05.2024 wherein stated the brief facts of the case as has been narrated in the original application.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Branch Manager of Bank's Tollygunge Karunamoyee Branch, Merlin Grove, 211, Ram Mohan Roy Road, Kolkata – 700008 along with the copy 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 the original documents have been returned to Sri Siba Shankar Dandapat, Manager Bank's Tollygunge Karunamoyee Branch, Merlin Grove, 211, Ram Mohan Roy Road, Kolkata – 700008 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 'K'.

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 Term Loan of Rs.10,50,000/-. Applicant Bank has proved the creation of equitable mortgaged of immovable property by Memorandum of deposit of Title Deed executed by the Defendant.

7. On the point of limitation, Loan has been sanctioned on 20.01.2011, security documents have been executed on 20.01.2011 and original Application has been filed on 19.04.2018. The defendant created equitable mortgage by depositing title deed by way of Deed of Conveyance being No.00449 for the year 2011 on 17.02.2011 with the applicant Bank. As per law 12 years period from the date of mortgage is available to the Applicant Bank to enforce it's claim (Article 62 Schedule I of Limitation Act); hence, on the basis of mortgage created on 17.02.2011, the claim / original Application is within the limitation as prescribed u/s 24 of RD&B Act, 1993 (as amended from time to time). 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 Interest and other charges calculated upto 31.03.2018) is **Rs.16,92,560.00** (Rupees sixteen lacs ninety two thousand five hundred sixty) as on 31.03.2018, 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 at the contractual rate from 01.04.2018, while in the Demand Promissory Note dated 20.01.2011 the rate of interest @ 9% per annum, at monthly rests, has been mentioned. The defendant availed the Term Loan for purchase of house / Flat; therefore, in my view, the *pendente lite* & future rate of interest @ 9% per annum, simple, from 01.04.2018, 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./259 of 2019 (arising out of O.A./279 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./259 of 2019 (arising out of O.A./279 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.16,92,560.00** (Rupees sixteen lacs ninety two thousand five hundred sixty) 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 @ 9% per annum, simple, from 01.04.2018, 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 mortgage immovable property; described in 'Schedule – I' at page 21 and para 3A at page 4 of the original Application, as under –

"ALL THAT piece and parcel of one self contained residential flat measuring about 760 sq.ft. including super built up area on Second Floor, South-Eastern side of the building erected upon ALL THAT piece and parcel of bastu land measuring about 2 (Two) cottahs 14 (Fourteen)chittaks and 23 (Twenty three) sq.ft. be the same a little more or less lying and situated within the District – 24-Parganas (South), A.D.S.R. at Alipore, Kolkata Municipal Corporation, premises No.87/12/166A/D/1, Raja S.C. Mullick Road, Police Station – Jadavpur, Kolkata – 700047, Ward No.100, under Mouza - Rajpur, E.P. No.479A, S.P. No.323/1, C.S. Plot No.1189(P) and 1190(P), J.L. No.33, and butted and bounded as under:

<table style="width: 100%; border-collapse: collapse;"> <tr> <td style="width: 30%;">On the North</td> <td style="width: 5%;">:</td> <td>K.M.C. Road (12 ft.)</td> </tr> <tr> <td>On the East</td> <td>:</td> <td>Plot No. E.P. 478</td> </tr> <tr> <td>On the West</td> <td>:</td> <td>Plot No. E.P. 479</td> </tr> <tr> <td>On the South</td> <td>:</td> <td>Plot No. E.P. 38."</td> </tr> </table>

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./259 of 2019 (arising out of O.A./279 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 25^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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