INDIAN OVERSEAS BANK vs DR KRISANU SENGUPTA on 3 September 2024

1. **Dr., Krisanu Sengupta**, Son of Prasanta Sengupta, Flat No.1A, 528, Hossainpur, Abhisikta More, Madurdaha, Kolkata – 700107.

..... Defendant

Counsel for parties:

For the Applicant Bank : Ms. Aparajita Ghosh & Ms. Sangeetha Ghosh. Amicus Legal Associates.

For the Defendant : *Ex-Parte*

**FINAL ORDER / JUDGMENT**

Delivered on 03.09.2024

Applicant, Indian Overseas Bank instituted the present Application being the Original Application No.737 of 2018 filed in DRT-3, Kolkata on 06.09.2018 against single Defendant under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.14,01,855.58 (Rupees fourteen lacs one thousand eight hundred fifty five and paise fifty eight) as on 31.07.2018 together with further interest @ 11.15% 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. Regs or Kolkata DRT-3's Order dated 30.10.2019 and the same has been renumbered as T.A./645 of 2020 vide Ld. Registrar's order dated 09.12.2020.

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

(i) That the Defendant had applied and approached before the applicant Bank in the month of March 2017 for availing the credit facility in the nature of 'IOB Pushpaka Loan' for an amount of Rs.12,50,000/- for purchasing a vehicle of the make Hyundai verna; copy of loan application is annexed and marked as Annexure 'A'. Relying upon representation made by the defendant, applicant Bank was pleased to grant / sanction a Term / Vehicle Loan of Rs.12,50,000/- (Rupees twelve lacs fifty thousand) in favour of the defendant vide credit sanction advice dated 06.03.2017. Copy of duly accepted credit sanction advice dated 06.03.2017 is annexed and marked as Annexure 'B'.

(ii) In consideration of the aforesaid Term Loan facility of Rs.12.50 lakhs, the defendant executed the following security documents all dated 06.03.2017:

- (a) Demand Promissory Note for Rs.12,50,000/-;

- (b) Letter of Authorization for Rs.12,50,000/- duly duly authorized the applicant bank to recover the instalments and interest due thereon;

- (c) Letter of Undertaking : Repayment in instalments duly signed and executed by the defendant for an amount of Rs.12.50 lacs;

- (d) Deed of Hypothecation duly signed and executed by the defendant;

- (e) Undertaking letter from the new borrowers after introduction of interest linked with MCLR instead of Base Rate.

Said documents are annexed and marked with Annexure 'C-1' to 'C-5'.

(iii) The defendant registered the financed vehicle(s) with R.T.O. – Kolkata on 27.04.2017; detailed description of the financed vehicle is described morefully in Schedule 'A' at page 20 of the O.A. Copy of Certificate of Registration is annexed and marked as Annexure 'D'.

3. The Defendant availed and enjoyed the said Term Loan facility by opening Account in Bank's Salt Lake City Branch, EA Block, Labony Estate, Sector – I, Salt Lake, Kolkata – 700064. 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 irregular and was classified as N.P.A. on 31.12.2017. Applicant Bank finding no other alternative and issued a re-call demand notice dated 05.07.2018 through their Advocate demanding to repay the outstanding Bank's dues of Rs.13,91,136.58, but the defendant did not comply the said notice; copy of said re-call demand notice dated 05.07.2018 is annexed and marked as Annexure 'E'. 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 'F' & 'G') together with future interest @ 11.15% per annum from 01.08.2018, till realization in full, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

4. The notice / summons was sent to the sole Defendant by the Tribunal; service of Notice / summons upon the Defendant by postal service and hand delivery have not been effected, such has been recorded vide orders dated 20.07.2022 & 19.09.2022. At the request of Ld. Advocate of the applicant Bank, Ld. Tribunal is directed to serve the summons upon the defendant by way of paper publication; and Ld. Advocate for applicant Bank has brought on record the affidavit of service on publication dated 12.12.2022 upon the Defendant along with relevant portion of paper cuttings in two newspapers, namely (i) 'Indian Express' in English and (ii) 'Dainik Statesman' in Bengali, both dated 13.11.2022, such has been recorded vide Ld. Registrar's order dated 12.12.2022. 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 14.05.2024. Applicant Bank has filed an Affidavit dated 04.01.2022 disclosing the notional value of the vehicle on Bank's letter head wherein the notional value of the vehicle as declared by the Bank is Rs.1,59,400/- as on 29.12.2021. Written notes of arguments has been filed by the applicant Bank on 14.05.2024 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 Sri Dilip Kumar Barik, Asstt. General Manager of Bank's Salt Lake Branch, EA Block, Labony Estate, Sector – I, Salt Lake, Kolkata – 700064 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 Shri Prafulla Kumar Paul, Asstt. Manager of Bank's Salt Lake City Branch, Salt Lake, Kolkata – 700064 on 08.03.2021, such has been recorded in Ld. Registrar's order dated 08.03.2021. The documents produced by the Applicant Bank are exhibited and annexed at 'A-1' to 'A-10'.

I have heard the Ld. Counsel 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 proved the averments made in the O.A. Applicant Bank has corroborated the averments made in the O.A. Applicant Bank has proved the sanction of Term Loan in the nature of 'IOB Pushpaka Loan' for an amount of Rs.12,50,000/- vide credit sanction advice dated 06.03.2017.

Applicant Bank has proved the equitable mortgaged of properties.

7. On the point of limitation, Loan has been sanctioned on 06.03.2017, security documents have been executed on 06.03.2017 and original Application has been filed on 06.09.2018. 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 Term Loan Account (inclusive of accrued Interest and other charges as calculated upto 31.07.2018) is **Rs.14,01,855.58** (Rupees fourteen lacs one thousand eight hundred fifty five and paise fifty eight) as on 31.07.2018, 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 @ 11.15% per annum, while in the Demand Promissory Note dated 06.03.2017 the rate of interest @ 9.15% per annum, with monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 9.15% per annum, with quarterly rests, from 01.08.2018, 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./645 of 2020 (arising out of O.A./737 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./645 of 2020 (arising out of O.A./737 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.14,01,855.58** (Rupees fourteen lacs one thousand eight hundred fifty five and paise fifty eight) due and payable, inclusive of interest and other charges as calculated upto 31.07.2018; and interest for the period *pendente lite* and future rate @ 9.15% per annum, with quarterly rests, from 01.08.2018, 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 (vehicle); described in Schedule 'A' at page 20 and para 3A at page 4 & 5 of the original Application, are as under –

*"Hypothecated vehicle being Registration No. WB 06N 7444, Maker's Name: Hyundai Motors India Ltd., Model: VERNA, Chassis No. MLACU41UMFM198418, Engine No. D4FBFM321437, Year of Manufacture: 2017."*

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 sole 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 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./645 of 2020 (arising out of O.A./737 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 03^rd day of September, 2024.

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

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

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