UNION BANK OF INDIA vs M/S RAJKAMAL ENTERPRISE on 26 June 2024

1. 1. **M/s Rajkamal Enterprise**, a proprietorship firm, having its principal place of business at 10/1/2F/1, Abinash Chowdhury Lane, P.S.- Topsia, Kolkata – 700046

2. 2. **Sri Pradip Saha**, son of Sri Gour Chandra Saha, carrying on business as proprietor of M/s Rajkamal Enterprise, residing at 10/1/2F/1, Abinash Chowdhury Lane, P.S.- Topsia, Kolkata – 700046.

3. 3. **Sri Gour Saha**, residing at 10/1/2F/1, Abinash Chowdhury Lane, P.S.- Topsia, Kolkata – 700046.

..... Defendants

Counsel for parties:

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

**FINAL ORDER / JUDGMENT**

Delivered on 26.06.2024

Applicant, Union Bank of India instituted the present Application being the Original Application No.477 of 2018 filed in DRT-3, Kolkata on 11.06.2018 against three Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.19,59,664.73 (Rupees nineteen lacs fifty nine thousand six hundred sixty four and paise seventy three) as on 30.04.2018 together with further interest thereon at the contractual rate, till the date of realization. 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 24.10.2019 and the same has been renumbered as T.A./ 08 of 2020 vide Ld. Registrar's order dated 30.10.2019.

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

(i) That the Defendant No.1 was enjoying working capital loan facility of Rs.2.50 lacs. The defendant No.1 approached and applied the applicant Bank for enhancing the limit from Rs.2.50 lacs to Rs.10.00 lacs vide application dated 20.09.2007. Upon consideration of loan Application, applicant Bank was pleased to enhance / sanction the limit from Rs.2.50 lacs to Rs.10,00,000/- (Rupees ten lacs) in favour of the defendant No.1 towards working capital facility vide sanction letter dated 15.11.2007. The terms and conditions of the Loan facility letter dated 15.11.2007 was duly accepted by the defendants. Copy of said facility letter dated 15.11.2007 is annexed and marked as Annexure 'A'.

(ii) In consideration of the aforesaid enhanced facility to the limit of Rs.10.00 lakhs, the defendants / borrowers executed the following security documents all dated 01.02.2008:

- (a) Demand Promissory Note for Rs.10.00 lacs;

- (b) Hypothecated Agreement of Goods and Debts;

- (c) Letter of Undertaking not to alienate hypothecated goods;

- (d) Letter of Continuity;

- (e) Letter of Guarantee;

- (f) Letter of Undertaking from borrower;

- (g) Letter of Undertaking from guarantor.

Copy of said documents are annexed and marked with Annexure 'B' to 'H' respectively.

(iv) In order to secure the aforesaid Loan facility, the defendant No.2 created equitable mortgage in respect of his immovable property, morefully described in Schedule – I at page 21 and para 3A at page 4 of the O.A.) by depositing title deed with the Bank on 13.02.2008 as a security for the repayment of dues standing in the name of the Defendant No.2. The defendant also executed declaration and Affidavit in favour of the applicant Bank. Copy of Memorandum of deposit of Title Deed dated 13.02.2008 in evidence of creation of mortgage, Deed of Gift dated 20.07.2007 being No.04043 for the year 2007, and Declaration and Affidavit are annexed and marked as Annexure 'I', 'J', 'K' & 'L'.

(v) The defendant No.3 had guaranteed repayment of the loan amount with interest by executing a Letter of Guarantee dated 01.02.2008; copy of said Letter of guarantee is annexed and marked as Annexure 'F'.

3. The Defendant availed and enjoyed the said credit facility by opening Account in Bank's S.M. Avenue Branch, 33/1, Sundari Mohan Avenue, P.S.- Beniapur, Kolkata – 700014. The loan amount disbursed to the defendants from time to time. However, the defendants failed and neglected to abide by the terms and conditions of the facility. The Defendants did not repay the outstanding 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 12.02.2011 demanding to repay the outstanding Bank's dues; the said letter was served through speed post with A/D and the defendant No.2 received the same on 25.02.2011, but the defendant did not comply the said notice. Copy of Notice dated 12.02.2011 and A/D card are annexed and marked as Annexure 'M' & 'N'. The defendants duly executed the Debit Balance Confirmation dated 16.08.2007, 21.11.2008, 25.06.2009 & 14.12.2010 acknowledging and confirming their debts / liability in the Account, and lastly on 30.01.2018 through settlement letter with acknowledging liability and debts; copies of said debit balance confirmation letters through settlement letter are annexed and marked as Annexure 'O', 'P', 'Q', 'R' & 'S'. The defendant has deposited an amount of Rs.10,000/- on 30.01.2018, by way of cash in the Loan Account; copy of said deposit voucher dated 30.01.2018 is annexed and marked as Annexure 'T'. 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 'U'), and future interest at the contractual rate from 01.05.2018, 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 Defendants No.1, 2 & 3 by the Tribunal; service of Notices / summons upon all the Defendants by postal service has been successfully effected, such has been recorded vide Ld. Registrar's order dated 20.04.2023. Despite service, the defendants did not appear nor filed the written statement; thus, all the defendants were ordered to be proceeded *ex-parte* vide order dated 29.01.2024. Written notes of argument have been filed by the applicant Bank on 06.03.2024 and 26.06.2024 wherein stated the brief facts of the case as has been narrated in the original application. Ld. Advocate of the applicant Bank has submitted arguments on 15.03.2024.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Shri Partha Sarathi Basu, Branch Manager of Bank's S.M. Avenue Branch, 33/1, Dr. Sundari Mohan Avenue, P.S. - Beniapur, Kolkata – 700014 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 after verification the original documents have been returned to Sri Shubhojyoti Pal, Manager of Bank's S.M. Avenue Branch, 33/1, Dr. Sundari Mohan Avenue, Kolkata – 700014 on 25.07.2022, such has been recorded in Ld. Registrar's order dated 25.07.2022. The documents produced by the Applicant Bank are exhibited and annexed at 'A' to 'U'.

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 enhanced working capital facility of Rs.10,00,000/-. Applicant Bank has proved the creation of equitable mortgaged of immovable property by Memorandum of deposit of Title Deed executed by the Defendant No.2.

7. On the point of limitation, Loan has been sanctioned on 15.11.2007, security documents have been executed on 01.02.2008 and original Application has been filed on 11.06.2018. The defendants duly executed the Debit Balance Confirmation on several dates, and lastly executed the Balance Confirmation dated 30.01.2018 through settlement letter with acknowledging liability and debts. 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 Loan Account (inclusive of accrued Interest and other charges calculated upto 30.04.2018) is **Rs.19,59,664.73** (Rupees nineteen lacs fifty nine thousand six hundred sixty four and paise seventy three) as on 30.04.2018, which is the amount claimed by the applicant Bank in the original Application, and the defendants No.1, 2 & 3 are liable to pay, 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 at the contractual rate from 01.05.2018, while in the Demand Promissory Note dated 01.02.2008 the rate of interest @ 13.25% per annum, with monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 13.25% per annum, with quarterly rests, from 01.05.2018, 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./08 of 2020 (arising out of O.A./477 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./08 of 2020 (arising out of O.A./477 of 2018), filed by the Applicant Bank, is allowed and debt is determined with cost against the Defendants No.1, 2 & 3. It is hereby ordered that the Defendants No.1, 2 & 3 are hereby directed to pay, jointly and / or severally the total debt amount of **Rs.19,59,664.73** (Rupees nineteen lacs fifty nine thousand six hundred sixty four and paise seventy three) due and payable, inclusive of interest and other charges as calculated upto 30.04.2018; and interest for the period *pendente lite* and future rate @ 13.25% per annum, with quarterly rests, from 01.05.2018, 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 *pendente lite* and future interest shall be calculated on the reduced amount.

(iii) The defendants No.1, 2 & 3 are debarred from transferring, alienating, encumbering or disposing of the mortgaged 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 super built up area with floors alongwith all common easement right, and facilities and privileges and supplies measuring a little more or less 735 sq.ft. super built up area lying and situated in the premises No. 10/1/2F/2, Abinash Chowdhury Lane, 2^nd Floor, North-East portion of the same building, P.S.- Topsisia, Kolkata – 700046, District – South 24-Parganas."*

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 & 3 are 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 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 & 3 both moveable and immoveable and also proceed against the Defendants No.2 & 3 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 & 3 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 & 3, 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./08 of 2020 (arising out of O.A./477 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 26^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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