STATE BANK OF INDIA vs SRI BAPPA CHOWDHURY on 2 July 2024

1. **Sri Bappa Chowdhury**, Son of Late Hiren Chowdhury, carrying on business as proprietor under the name and style of M/s Bappa Enterprise from 137/1A, Bidhan Sarani, Kolkata – 700004, and residing at 36C, Nalin Sarkar Street, Kolkata – 700004.

.. .. Defendant

Counsel for parties:

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

Delivered on 02.07.2024

Applicant (State Bank of India), erstwhile State Bank of Bikaner & Jaipur instituted the present Application being the Original Application No.299 of 2018 filed in DRT-3, Kolkata on 24.04.2018 against single Defendant under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of **Rs.14,94,063.00** (Rupees fourteen lacs ninety four thousand sixty three) as on 09.03.2018 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 19.10.2019 and the same has been renumbered as T.A./ 248 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 sole Defendant is the borrower of the loan account. On 26.12.2013 the defendant had applied and approached the State Bank of Bikaner & Jaipur (SBBJ), Jodhpur Park Branch, P.S.- Lake, Kolkata – 700068, 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 aggregating a sum of Rs.10,00,000/-, 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 letter of arrangement dated 30.12.2013.

(ii) At the time of sanctioning of said credit facility, the effective rate of interest was @ 13% per annum with monthly rests. The primary security for the advance was hypothecation of stocks and book debts (described in Schedule at page 12 of the O.A.). Copy of loan application dated 26.12.2013 is annexed and marked with letter 'A' and Exhibit AW-1; copy of letter of arrangement dated 30.12.2013 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 following security documents in favour of applicant Bank dated 30.12.2013:

(a) Agreement of Loan-cum-Hypothecation; (b) Consent Clause.

Copy of said document dated 30.12.2013 is annexed and marked with Letter 'C' & 'D' and Exhibit – AW-3 & AW-4 respectively.

(iv) The defendant had executed a revival letter dated 26.12.2016 for revival of the said loan Account; copy of said revival letter is annexed and marked with Letter 'E' and Exhibit – AW-5.

3. The Defendant availed and enjoyed the said credit facility by opening Account in Jodhpur Park Branch, 394-A, Gariahat Road (S), Kolkata – 700068. 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. In spite 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 30.04.2015. Thereafter, the applicant Bank issued legal notice dated 06.04.2018 through 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 'G' and Exhibit AW-7. 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 'F' and Exhibit AW-6), 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 has been successfully effected, such has been recorded vide Ld. Registrar's order dated 07.07.2022. 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 16.01.2024. Written notes of arguments has been filed by the applicant Bank on 30.04.2024 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 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 Prawesh Kumar Sah, Assistant Manager of Bank's SMECCC, 1, Strand Road, Samriddhi Bhawan, Annexe Building, Kolkata on 02.03.2022, such has been recorded in Ld. Registrar's order dated 02.03.2022. The documents produced by the Applicant Bank are exhibited and annexed at 1 to 7.

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, i.e. stocks and book debts.

8. On the point of limitation, Loan has been sanctioned on 30.12.2013, security documents have been executed on 30.12.2013 and original Application has been filed on 24.04.2018. Further, the defendant executed a revival letter dated 26.12.2016 confirming the outstanding balance in loan Account. 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 and other charges calculated upto 09.03.2018) is **Rs.14,94,063.00** (Rupees fourteen lacs ninety four thousand sixty three) as on 09.03.2018, 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 @ 18% per annum, while in the letter of arrangement dated 30.12.2013 the rate of interest @ 13% per annum, at monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 13% per annum, with quarterly rests, from 10.03.2018, 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./248 of 2019 (arising out of O.A./299 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./248 of 2019 (arising out of O.A./299 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.14,94,063.00** (Rupees fourteen lacs ninety four thousand sixty three) due and payable, inclusive of interest and other charges as calculated upto 09.03.2018; and interest for the period *pendente lite* and future rate @ 13% per annum, with quarterly rests, from 10.03.2018, 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 –

*"Stocks and book debts lying at Bappa Enterprise situated at 137/1A, Bidhan Sarani, Kolkata – 700004."*

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./248 of 2019 (arising out of O.A./299 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 02^nd day of July, 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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