STATE BANK OF INDIA vs SRI RAJIB PAUL on 9 July 2024

1. **Sri Rajib Paul**, Son of Bishnu Prasad Paul, residing at C/222, Survey Park, Ajay Nagar, Santoshpur, Kolkata – 700075.

. .... Defendant

Counsel for parties:

For the Applicant Bank : Ms. Deblina Lahiri For the Defendant : *Ex-Parte*

**FINAL ORDER / JUDGMENT**

Delivered on 09.07.2024

Applicant, State Bank of India (erstwhile State Bank of Bikaner & Jaipur) instituted the present Application being the Original Application No.252 of 2018 filed in DRT-3, Kolkata on 05.04.2018 against single Defendant under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of **Rs.18,19,624.67** (Rupees eighteen lacs nineteen thousand six hundred twenty four and paise sixty seven) as on 20.03.2018 together with further interest, 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./ 171 of 2019 vide Ld. Registrar's order dated 02.11.2019.

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 State Bank of Bikaner & Jaipur (SBBJ), under the State Bank of India (Subsidiaries Banks) for house building loan to purchase a flat; and upon consideration of application, the then State Bank of Bikaner & Jaipur had sanctioned a Term / Housing Loan for a sum of Rs.17,50,000/- (Rupees seventeen lacs fifty thousand) to the Defendant vide Arrangement Letter dated 24.06.2016 on execution of Banking documents by the defendant. In the meantime, pursuant to the Notification dated 22.02.2017 of the Government of India, State Bank of Bikaner & Jaipur has been acquired by State Bank of India under Section 35 of the State Bank of India Act, 1955 with effect from 01.04.2017 and the loan Account of the defendant is now monitored by State Bank of India, RACPC South Kolkata Branch, 2 & 3^rd Floor, Boral Main Road, Kolkata – 700084. Copy of Arrangement Letter dated 24.06.2016 is annexed and marked as Annexure 'A-2'.

(ii) In consideration of the aforesaid Term Loan facility of Rs.17.50 lakhs, the defendant executed the following security documents in favour of applicant Bank both dated 24.06.2016:

- (a) One Arrangement Letter;

- (b) Memorandum of Term Loan Agreement containing the terms and conditions of the loan, thereby acknowledging and agreeing to bind themselves.

Copy of Memorandum of Term Loan Agreement for home loan is annexed and marked as Annexure 'A-3'.

(iii) As security for the said house building loan granted by the applicant Bank to the defendant, the defendant had created equitable mortgage in respect of his immovable property, morefully described in 'Schedule' at page 21 and para 3A at page 8 to 11 of the O.A., by depositing original Title Deed being Deed of Conveyance being No.2058 for the year 2016, registered in the office of the District Sub-Registrar-V, Alipur, Dist.- South 24-Parganas, with the applicant bank. The defendant has also served upon the applicant Bank one Letter confirming creation of such mortgage. Copy of Letter of Consent and Agreement to Mortgage is annexed and marked as Annexure 'A-4'. Copy of Deed of Conveyance being No.2058 for the year 2016 is annexed and marked as Annexure 'A-5', and copy of the letter confirming creation of mortgage is annexed and marked as Annexure 'A-6'.

3. The Defendant availed and enjoyed the said credit facility by opening Account in Bank's Survey Park Branch, C-211, Survey Park, Santoshpur, Kolkata. 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. Inspite 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. 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 (Annexure 'A-7'), and future interest to be calculated on and from 21.03.2018 along with penal interest @ 2% per annum with monthly rests, till the date of realization of the 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, such has been recorded vide Ld. Registrar's order dated 02.07.2019 and 07.12.2023. Despite service, the sole defendant did not appear nor filed the written statement; thus, the defendant is hereby ordered to be proceeded *ex-parte*. Written notes of arguments has been filed by the applicant Bank on 19.06.2024 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 Partha Bhar, Chief Manager of Bank's RACPC, South Kolkata Branch, 2 & 3^rd Floor, Boral Main Road, Kolkata – 700084 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 Kundan Kumar Karn, City Case Officer of Bank's SARB, South Bengal, Jeevan Deep Bldg., 1, Middleton Street, Kolkata – 700071 on 25.04.2023, such has been recorded in Ld. Registrar's order dated 25.04.2023. The documents produced by the Applicant Bank are exhibited and annexed at 'A-1' to 'A-6'.

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 Term / Housing Loan of Rs.17,50,000/- vide Arrangement Letter dated 24.06.2016. Applicant Bank has proved the mortgaged immovable property, morefully described in 'Schedule' at page 21 and para 3A at page 8 to 11 of the original application.

8. On the point of limitation, Loan has been sanctioned on 24.06.2016, security documents have been executed on 24.06.2016 and original Application has been filed on 05.04.2018. 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 Term Loan Account (inclusive of Interest and other charges calculated upto 20.03.2018) is **Rs.18,19,624.67** (Rupees eighteen lacs nineteen thousand six hundred twenty four and paise sixty seven) as on 20.03.2018, 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 to be calculated on and from 21.03.2018 along with penal interest @ 2% per annum with monthly rests, while in the Arrangement Letter dated 24.06.2016 the rate of interest @ 9.55% per annum, at monthly rests, has been mentioned. The borrower has taken the loan for purchase of a flat; therefore, in my view, the *pendente lite* & future rate of interest @ 9.55% per annum, simple, from 21.03.2018, 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./171 of 2019 (arising out of O.A./252 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./171 of 2019 (arising out of O.A./252 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.18,19,624.67** (Rupees eighteen lacs nineteen thousand six hundred twenty four and paise sixty seven) due and payable, inclusive of interest and other charges as calculated upto 20.03.2018; and interest for the period *pendente lite* and future rate @ 9.55% per annum, simple, from 21.03.2018, 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 mortgaged immovable property (flat); morefully described in 'Schedule' at page 21 and para 3A at page 8 to 11 of the original application, as under –

"All that self contained flat completed in all respect, being Flat No.2A, measuring about 900 sq.ft. (approx.) super built-up area on the 2^nd Floor, Marble finished flooring consisting of two bed rooms, one kitchen, one Toilet, one drawing cum dining room and one balcony of G+III storied residential building being KMC Premises No.2700, Nayabad, Police Station – Purba Jadavpur, Ward No.109, Kolkata – 700094, Mouza – Nayabad, J.L. No.25, A.D.S.R. Sealdah, in the district of 24-Parganas, at Kanishka Apartment, together with undivided proportionate share of the land and premises with the right of common areas, use, benefits, and enjoyments and privileges in all common parts in deserver, stairs, landings, sewers, sanitation, common electricity, water, water courses, roof right, fittings and fixtures, installations whatsoever and appurtenances quasi-easement rights, privileges and enjoyment and obligation whatsoever."

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./171 of 2019 (arising out of O.A./252 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 09^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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