STATE BANK OF INDIA vs SRI BIDYUT GOON on 11 July 2024

1. **Sri Bidyut Goon**, Son of Late Sishil Goon, carrying on business as proprietor under the name and style of M/s B. Enterprise from 373/9, Kalyangarh, P.O.- Kalyangarh, 24-Parganas (North), P.S.- Ashokenagar, Pin – 743272, West Bengal.

.. ..... Defendant

Counsel for parties:

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

Delivered on 11.07.2024

Applicant, State Bank of India instituted the present Application being the Original Application No.332 of 2018 filed in DRT-3, Kolkata on 21.05.2018 against single Defendant under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of **Rs.25,01,698.00** (Rupees twenty five lacs one thousand six hundred ninety eight) as on 29.01.2018 together with further interest, till the date of realization of 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 21.10.2019 and the same has been renumbered as T.A./ 304 of 2019 vide Ld. Registrar's order dated 29.10.2019.

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(s). On 04.07.2013 the defendant had applied and approached to the applicant Bank for cash credit facility – EDFS (Peak) (Electronic Dealer's Finance System) to the tune of Rs.43,50,000/- and Non-Peak of Rs.21,75,000/- for the purpose of expansion of his business, and upon consideration of Loan Application, applicant Bank was pleased to grant / sanction a Cash Credit facility – EDFS (Peak) to the limit of Rs.43,50,000/- (Rupees forty three lacs fifty thousand) and Non-Peak facility of Rs.21,75,000/- (Rupees twenty one lacs seventy five thousand) in favour of the defendants vide letter of arrangement dated 17.03.2014. At the relevant point of time, the rate of interest was upto 60 days @ 10.25% per annum and above 60 days @ 10.50% per annum, and the primary security of the said facilities was the hypothecation of all stocks and book debts and equitable mortgage of land and building. Copy of said letter of arrangement dated 17.03.2014 is annexed and marked as Annexure 'A' and Exhibit – AW-1.

(ii) In consideration of the aforesaid credit facilities, the defendant executed the following security documents in favour of applicant Bank dated 17.03.2014:

- (a) Agreement of Loan-cum-Hypothecation;

- (b) Text of the consent clause;

- (c) Form of Agreement with power of attorney.

Copy of said documents dated 17.03.2014 are annexed and marked with Letter 'B', 'C' & 'D' and Exhibit – AW-2, AW-3 & AW-4 respectively.

(iii) The defendant had executed a revival letter dated 24.02.2017 for revival of the aforesaid loan Accounts; copy of said revival letter is annexed and marked with Letter 'E' and Exhibit – AW-5.

(iv) The defendant executed the Balance Confirmation letter dated 31.03.2017 confirming the outstanding balance in the Account; copy of said balance confirmation as on 31.03.2017 is annexed and marked with Letter 'F' and Exhibit – AW-6.

(v) To secure the said credit facilities granted to the defendant by the applicant bank, the defendant created equitable mortgage in respect of his immovable property, morefully described in Schedule at page 14 and para 3A at page 3 of the O.A., by depositing original title deed(s) being No.407 for the year 2007 with the applicant Bank. Copy of letter dated 25.04.2008 and 28.02.2017 confirming deposit of title deed and a copy of Deed of Gift recorded in Book No.I, Volume No.8, pages 259 to 268 being No.407 for the year 2007 along with English translation copy are annexed and marked with Letter 'G' & 'H' and Exhibit – AW-7 and AW-8 respectively.

(vi) Applicant Bank has submitted the valuation report of the mortgaged property by the approved valuer; copy of the valuation report dated 22.02.2017 is annexed and marked with Letter 'I' and Exhibit – AW-9.

(vii) The applicant Bank has traced one additional property of the defendant situated at in respect of un-divided $\frac{1}{4}$ part or share in 4.21 decimal of land as per local measurement 2 cottah 8 chittaks 36 sq.ft. together with share of 212 sq.feet of house allotted under Mouza – Banspul, J.L. No.32, Dag No. LOP No.373/9, Khatian No.LR 2378, 2379, 2380, 2381, 2382 and 2384, Dag No.925 and 928, L.R. Dag No. 1620/2356, situated at Ashoknagar, P.S.- Ashoknagar, Ward

No.08, under Ashokenagar Kalyangarh Municipality, Dist.- 24-Parganas (North), acquired by way of a deed of partition. Copy of said deed of partition recorded in Book No.I, Being No.344 for the year 2007 registered before the ADSR Guma, 24-Parganas (North) along with English translation copy is annexed and marked with Letter 'J' and Exhibit – AW-10.

3. The Defendant availed and enjoyed the said credit facilities by opening Account(s) in Bank's Ashokenagar Branch, Ashokenagar, 24-Parganas (North). 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, agreed EMIs and overdue interests in loan Accounts. Inspite of repeated requests and personal contact made by the Applicant Bank, the defendant failed to regularize the loan Accounts. Since the defendant did not pay any attention to regularize the Accounts, the Accounts became out of order and was classified as N.P.A. on 25.07.2017. Thereafter, the applicant Bank issued legal notice dated 05.03.2018 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 'L' and Exhibit AW-12. 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 'K' and Exhibit AW-11), and future interest @ 18% per annum together with costs etc. till the date of realization of entire dues, 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 and the affidavit of service dated 03.02.2020 received by the Tribunal on 19.09.2022, such has been recorded vide Ld. Registrar-in-charge's order dated 19.09.2022. 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 06.05.2024. Written notes of arguments has been filed by the applicant Bank on 11.07.2024 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 Himadri Bhusan Roy, City Dy. Manager / Case Officer of Bank's SARB Titagarh, 13, B.T. Road, Kolkata – 700119 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 Himadri Bhusan Roy, City Dy. Manager / Case Officer of Bank's SARB Titagarh, 13, B.T. Road, Kolkata – 700119 on 02.0.2019, such has been recorded in Ld. Registrar-in-charge's order dated 02.01.2019. The documents produced by the Applicant Bank are exhibited and annexed at 1 to 12.

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 – EDFS (Peak) of

Rs.43,50,000/- and Non-Peak facility of Rs.21,75,000/- vide letter of Arrangement dated 17.03.2014. Applicant Bank has proved the mortgaged immovable property, morefully described in Schedule at page 14 and para 3A at page 3 of the original application, further the applicant Bank has traced one additional property of the defendants, morefully described at para 3A at page 3 of the original application.

8. On the point of limitation, Loan has been sanctioned on 17.03.2014, security documents have been executed on 17.03.2014 and original Application has been filed on 21.05.2018. Further, the defendant executed a revival letter dated 24.02.2017 confirming the outstanding balance in loan Account(s). 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 Loan Accounts (inclusive of accrued Interest and other charges as calculated from 26.07.2017 to 29.01.2018) is **Rs.25,01,698.00** (Rupees twenty five lacs one thousand six hundred ninety eight) as on 29.01.2018, 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 in full. 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 17.03.2014 the rate of interest was upto 60 days @ 10.25% per annum and above 60 days @ 10.50% per annum, with monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 10.25% per annum, with quarterly rests, from 30.01.2018, is allowed.

10. The matter also falls within the territorial as well as pecuniary jurisdiction of this Tribunal. The Applicant Bank has proved the claim made in the O.A./T.A. The T.A. being T.A./304 of 2019 (arising out of O.A./332 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./304 of 2019 (arising out of O.A./332 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.25,01,698.00** (Rupees twenty five lacs one thousand six hundred ninety eight) due and payable, inclusive of interest and other charges as calculated upto 29.01.2018; and interest for the period *pendente lite* and future rate @ 10.25% per annum, with quarterly rests, from 30.01.2018, 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 14 of the original Application, as under :-

*"All that stocks and machinery lying at M/s B. Enterprise at No.373/9, Kalyangarh, P.O.- Kalyangarh, 24-Parganas (North), P.S.- Ashoknagar, West Bengal – 743272." - and*

Mortgaged immovable property, described in 'Schedule' at page 14 and para 3A at page 3 of the original Application, as under –

*"ALL THAT bastu land measuring about measuring about 2.55 cottahs more or less together covered structure about of 397.77 sq.ft. and asbestos shed of 212.18 sq.ft. more or less standing in a portion thereon under Mouza – Banspul, J.L. No.32, Dag No.1620, 1620/2356, Khatian No.2382 at holding No. 08/22/21, Ashokenagar, P.S.- Ashokenagar, Ward Np.08, under Ashokenagar Kalyangarh Municipality, Dist.- 24-Parganas (North) registered in the name of the defendant recorded in Book No.1, Volume No.8, pages 259 to 268, Being No.407 for the year 2007."*

The defendant has traced one additional property of the defendant, morefully described in para 3A at page 3 and para 5.8 at page 7 of the original application.

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./304 of 2019 (arising out of O.A./332 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 11^th 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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