BANK OF INDIA vs AJAY DAS on 21 August 2024

Page.No.**KOLKATA DEBTS RECOVERY TRIBUNAL NO. 2****ORDER SHEET (Continuation)**

Bank of India

TA/405 of 2020 (O.A./768 of 2018)

Case No. \_\_\_\_\_

\_\_\_\_\_ Vs Ajay Das

<table border="1"> <thead> <tr> <th data-bbox="115 215 185 275">Date of Order</th> <th data-bbox="185 215 745 275">Order with Signature</th> <th data-bbox="745 215 875 275">Office action with date and dated Signature of parties when necessary</th> </tr> </thead> <tbody> <tr> <td data-bbox="115 275 185 915">16<br/>21.08.2024</td> <td data-bbox="185 275 745 915"> <p>Counsel for the parties:</p> <p>Mr. Pradip Kumar Sil, Ld. Advocate for the applicant Bank</p> <p>None for the defendant.</p> <p>T.A./405 of 2020 (arising out of O.A./768 of 2018) is allowed and disposed of.</p> <p>Final order / Judgment is in separate sheet of 5 pages.</p> <p>File be consigned to record room.</p> <p>Order be uploaded on the Tribunal's website.</p> <div style="text-align: right; margin-top: 20px;"> <br/> (Arbind Madhav)<br/> Presiding Officer<br/> DRT-2, Kolkata </div> </td> <td data-bbox="745 275 875 915"></td> </tr> </tbody> </table>

1

TA/405 of 2020 – DRT-2/Kol

**DEBTS RECOVERY TRIBUNAL - 2, KOLKATA**

Jeewan Sudha Bldg. 07^th Floor, 42/C, J.L. Nehru Road, Kolkata – 700071

Before Shri Arbind Madhav, Presiding Officer **T.A. No. 405 of 2020**

(arising out of O.A./768 of 2018)

In the matter of

**Bank of India**, a body corporate constituted under the provisions of the Banking Companies (Acquisition and Transfer of Undertaking Act, 1970), having its Head Office at 'Star House', C-5, Block 'G', Bandra Kurla Complex, Bandra (East), Mumbai – 400051, and carrying on business; *inter-alia*, at Bangur Avenue Branch, 415/13-14, Bangur Avenue, Block – 'C', P.S.- Lake Town, Dist.- North 24-Parganas, Kolkata – 700055,

..... Applicant Bank

-Versus-

- 1. **Ajay Das**, Son of Sri Neermal Das, carrying on business as Road Transport Operator and residing at Premises No.BD-5, Uttar Falguni Apartment, Baguihati, Deshbandhu Nagar, P.S.- Baguihati, Kolkata – 700059.

..... Defendant

Counsel for parties:

For the Applicant Bank : Mr. Pradip Kumar Sil, Ld. Advocate.

For the Defendant : *Ex-Parte*

**FINAL ORDER / JUDGMENT**

Delivered on 21.08.2024

Applicant, Bank of India instituted the present Application being the Original Application No.768 of 2018 filed in DRT-3, Kolkata on 25.09.2018 against single Defendant under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.29,32,959.48 (Rupees twenty nine lacs thirty two thousand nine hundred fifty nine and paise forty eight) as on 17.09.2018 together with further interest thereon @ 11.45% per annum, with monthly rests, till realization in full. 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 30.10.2019 and the same has been renumbered as T.A./ 405 of 2020 vide Ld. Registrar's order dated 25.06.2020.

- 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 applicant Bank for Term Loan. On consideration of loan application dated 11.06.2013, applicant Bank was pleased to grant / sanction a Term Loan of Rs.25,50,000/- (Rupees twenty five lakhs fifty thousand) in favour of the defendant vide sanction letter dated 11.06.2013 which were duly accepted by the defendant. The said term loan was guaranteed under the scheme of CGTMSE. Copies of Loan application and sanction letter dated 11.06.2013 are annexed and marked with Letter 'A' & 'A-1' respectively. The said loan was to be repaid in 81 monthly installments of Rs.45,357/- each commencing from 30.09.2013. The disbursement of the said term loan amount of Rs.25,50,000/- was made on 12.06.2013, 13.06.2013 and 03.08.2013 respectively in defendant's respective Loan account.

(ii) In consideration of the applicant bank granting the said Term Loan of Rs.25.50 lakhs to the defendant, the defendant executed and delivered the following Loan documents all dated 11.06.2013:

- (a) Demand Promissory Note for Rs.25.50 lakhs in Form L-434;

- (b) Loan Bearer Letter in Form No. L-435;

- (c) Instalment Letter regarding payment of term loan for Rs.25.50 lakhs by 81 EMIs of Rs.45,357/- each in form No. L-440;

- (d) Agreement of Hypothecation-cm-Loan Agreement in Form No. CHA-II;

- (e) Letter of Declaration regarding non-relationship with any Directors and/or Senior Officers of the Bank in form No. L-515;

- (f) Letter of Multipurpose Comprehensive Declaration and Undertaking in Form No. L-516;

- (g) Letter of Authority authorising the applicant Bank to debit the account of borrower / defendant towards costs of stamp document, processing charges etc.

Copies of said documents are annexed and marked with Letters 'A-2 to 'A-8' respectively.

(iii) The defendant defaulted in making payment of the stipulated monthly instalments as per schedule of repayment of term loan as was specified in the said Agreement of Hypothecation-cum-Loan Agreement dated 11.06.2013. On request of the defendant from time to time for change in Schedule of Repayment of outstanding dues in the Term Loan Account, applicant Bank had allowed such change in repayment schedule; and accordingly the defendant executed and delivered the Supplementary Term Loan Agreement dated 29.12.2014 in Form AG-51 for change in Schedule of repayment of the balance outstanding for a sum of Rs.24,94,390/- as on 29.12.2014 and further interest thereon till repayment. Copy of supplementary Term Loan Agreement dated 29.12.2014 is annexed and marked with Letter 'A-9'.

(iv) The borrower / defendant had confirmed, acknowledged and admitted the indebtedness and liabilities by executing and delivering a separate Acknowledgement of Debt / Securities in Form No. L-444C dated 10.06.2016 for a sum of Rs.27,25,331.82 in 3TA/405 of 2020 - DRT-2/Kol favour of applicant Bank. Copy of said Acknowledgement of Debt / Securities dated 10.06.2016 is annexed and marked with Letter 'A-10'.

3. The Defendant availed and enjoyed the said Term Loan facility by opening Account in Bank's Bangur Avenue Branch, Block - 'C', P.S.- Lake Town, Kolkata - 700055. However, the defendant failed and neglected to operate the said Term Loan Account. The Defendant did not repay the agreed EMIs and overdue interests in 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 30.09.2017. The applicant Bank finding no other alternative issued Legal Notice dated 18.09.2018 upon the defendant through its Advocate demanding repayment of Rs.29,32,959.48 as on 17.09.2018, but the defendant did not comply with the said notice; copy of said notice dated 18.09.2018 is annexed and marked with Letter 'A-11'. 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 (Letter 'A-12'), and future interest @ 11.45% per annum with monthly rests, till the date of payment by the defendant, 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 was not delivered successfully upon the sole defendant by postal service and hand delivery, such has been recorded vide Ld. Registrar's order dated 02.01.2023. At the request of Ld. Advocate of the applicant Bank, Ld. Tribunal was directed to serve the summons / notice upon the defendant by way of paper publication, and Ld. Advocate of the applicant Bank has brought on record the affidavit of service on publication dated 31.01.2023 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 17.01.2023, such has been recorded vide Ld. Registrar's order dated 15.02.2023. 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 09.01.2024. Applicant Bank has filed the written notes of argument on 10.05.2024 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 26.07.2024.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Partha Chattopadhyay, Chief Manager of Bank's Bangur Avenue Branch, at 415/13-14, Bangur Avenue, Kolkata - 700055 along with the copy of documents executed by the Defendant. Copy of 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 same have been returned to Sri Ravi Shankar Ray, Credit Manager of Bank's Bangur Avenue Branch, at 415/13-14, Bangur Avenue, P.S.- Lake Town, Kolkata - 700055 on 14.03.2022 such has been recorded in Ld. Registrar's order dated 14.03.2022. The documents produced by the Applicant Bank are exhibited and annexed at 'A' & 'A-1' to 'A-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 Term Loan of Rs.25,50,000/- vide Letter of Sanction dated 11.06.2013. Applicant Bank has proved the hypothecation vehicle (Tata Truck) being Registration No. WB-23C 7930 dated 08.08.2013.

8. On the point of limitation, Loan has been sanctioned on 11.06.2013, security documents have been executed on 11.06.2013 and original Application has been filed on 25.09.2018. Further, the borrower / defendant had confirmed, acknowledged and admitted the indebtedness and liabilities by executing and delivering a separate Acknowledgement of Debt / Securities dated 10.06.2016 in favour of applicant Bank; 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 accrued interests and uncharged interest from 30.09.2017 to 17.09.2018) for a sum of **Rs.29,32,959.48** (Rupees twenty nine lacs thirty two thousand nine hundred fifty nine and paise forty eight) as on 17.09.2018, 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 @ 11.45% per annum with monthly rests as well as penal interest @ 2% per annum from 18.09.2018, while in the Demand Promissory Note dated 11.06.2013 the rate of interest @ 12.25% per annum, with monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 12.25% per annum, with quarterly rests, from 18.09.2018, 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./405 of 2020 (arising out of O.A./768 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./405 of 2020 (arising out of O.A./768 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.29,32,959.48** (Rupees twenty nine lacs thirty two thousand nine hundred fifty nine and paise forty eight) due and payable, inclusive of interest and other charges as calculated upto 17.09.2018; and interest for the period *pendente lite* and future rate @ 12.25% per annum, with quarterly rests, from 18.09.2018, 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 – 'X' at page 23 of the original application, as under –

*"One Tata Truck being Heavy Goods Vehicle with Registration No. WB-23C-7930 dated 08.08.2013, Model: TATA LPT 3118/52 TC, Engine No. B-591803231E63328731, Chassis No. MAT466388D3E11772 with its accessories lying at the residence of the borrower / defendant and/or garage premises at BD-5, Uttar Falguni Apartment, Baguihati, Deshbandhu Nagar, P.S.- Baguihati, Kolkata – 700059 or elsewhere and/or in transit."*

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./405 of 2020 (arising out of O.A./768 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 21^st day of August, 2024.

Copy of the Final Order / Judgment be uploaded in the Tribunal's Website.

21.8.24 (Arbind Madhav) Presiding Officer DRT-2, Kolkata

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