UNION BANK OF INDIA vs MR YAKOOB ALI on 4 September 2024

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

Union Bank of India

TA/526 of 2020 (arising out of O.A./925 of 2018)

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

Vs Mr. Yakoob Ali & Anr.

<table border="1"> <thead> <tr> <th data-bbox="141 218 211 281">Date of Order</th> <th data-bbox="211 218 771 281">Order with Signature</th> <th data-bbox="771 218 894 281">Office action with date and dated Signature of parties when necessary</th> </tr> </thead> <tbody> <tr> <td data-bbox="141 281 211 916"> <p>18<br/>04.09.2024</p> </td> <td data-bbox="211 281 771 916"> <p>Counsel for the parties:<br/> Mr. Subir Bera, Ld. Advocate representing Mr. Pankaj Kr. Mukherjee, Ld. Counsel for the applicant Bank.<br/> None for the defendants.<br/> T.A./526 of 2020 (arising out of O.A./925 of 2018) is allowed and disposed of.<br/> Final order / Judgment is in separate sheet of 5 pages.<br/> File be consigned to record room.<br/> Order be uploaded on the Tribunal's website.</p> <p style="text-align: right;"> <br/> (Arbind Madhav)<br/> Presiding Officer<br/> DRT-2, Kolkata </p> </td> <td data-bbox="771 281 894 916"></td> </tr> </tbody> </table>

1

TA/526 of 2020 – DRT-2/Kol

**DEBTS RECOVERY TRIBUNAL - 2, KOLKATA**

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

**Before Shri Arbind Madhav, Presiding Officer**

**T.A. No. 526 of 2020** (arising out of O.A./925 of 2018)

**In the matter of** -

**Union Bank of India**, a body corporate duly constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, having its Head Office at 239, Vidhan Bhawan Marg, Nariman Point, Mumbai – 400021, and carrying on business, *inter-alia*, through its different branches including one at Rajarhat Branch, at Rajarhat Main Road, Rajarhat Bazar, P.S.- Rajarhat, Dist.- North 24-Parganas. Pin – 700135, West Bengal.

..... Applicant Bank

-Versus-

- 1. **Mr. Yakoob Ali**, Son of Mr. Insan Ali, having his residence at Vill.- Jagardanga, P.O.- Rajarhat Gopalpur, Police Station – Airport, District – North 24-Parganas, Pin – 700136, West Bengal.

- 2. **Mrs. Taslima Bibi**, Wife of Mr. Yakoob Ali, having his residence at Vill.- Jagardanga, P.O.- Rajarhat Gopalpur, Police Station – Airport, District – North 24-Parganas, Pin – 700136, West Bengal.

..... Defendants

Counsel for parties:

For the Applicant Bank : Mr. Pankaj Kumar Mukherjee.

For the Defendants : *Ex-Parte*

**FINAL ORDER / JUDGMENT** Delivered on 04.09.2024

Applicant, Union Bank of India instituted the present Application being the Original Application No.925 of 2018 filed in DRT-3, Kolkata on 05.11.2018 against two Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.10,78,418.90 (Rupees ten lacs seventy eight thousand four hundred eighteen and paise ninety) as on 31.10.2018 together with further interest thereon @ 9.10% per annum, till realization of the entire due 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 13.11.2019 and the same has been renumbered as T.A./526 of 2020 vide Ld. Registrar's order dated 21.10.2020.

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


(i) That the Defendants approached and applied before the applicant Bank for housing loan vide an Application dated 18.08.2014. At the request of defendants, applicant Bank was pleased to grant / sanction a Housing Loan (Term Loan) for a sum of Rs.9,75,000/- (Rupees nine lacs seventy five thousand) in favour of the defendants, vide sanction letter dated 28.10.2014. The said sanction letter along with the terms and conditions mentioned therein were accepted and acknowledged by the defendants. Copy of loan Application dated 18.08.2014 and sanction letter dated 28.10.2014 are annexed and marked with Letter 'A-1' & 'A-2' respectively.

(ii) In acknowledgement of granting the said housing loan of Rs.9.75 lakhs, the defendants executed and delivered the following security documents all dated 28.10.2014:

(a) Housing Loan Agreement (SD-11);

(b) Letter of Undertaking from the borrower;

(c) Demand Promissory Note for Rs.9,75,000/-; (d) Letter of Continuity.

Copies of said documents are annexed and marked with Letter 'A-3', 'A-4', 'A-5' & 'A-6' respectively.

(iii) In consideration of granting loan to the defendants, the defendants in their individual and personal capacity duly guaranteed due repayment of all sums that would become due and payable by the borrower(s) together with interest, costs, charges and expenses till realization in full by executing and delivering a Letter of Guarantee (SD-01) dated 28.10.2014 in favour of applicant Bank. Copy of Letter of Guarantee dated 28.10.2014 is annexed and marked with Letter 'A-7'.

(iv) To secure the aforesaid credit facility of Rs.9.75 lacs granted to the defendants by the applicant Bank, the defendant No.1, Mr. Yakoob Ali created equitable mortgage in respect of his immovable property, morefully described in Schedule 'X-1' at page 25 and para 3A at page 8 to 11 of the O.A., by depositing Title Deed being No.02669 for the year 2014, standing in favour of applicant Bank on 13.06.2015 and the same has been recorded by the applicant Bank in its Memorandum of Deposit of Title Deed (AD-13) on 15.06.2015. Copy of said Title Deed being No.02669 for the year of 2014 and Memorandum of deposit of the deed (AD-13) on 15.06.2015 are annexed and marked with Letter 'A-8' & 'A-9' respectively. Further, the defendant also confirmed the deposit of said Deed of Conveyance being No.02669 for the year of 2014 for the creation of equitable mortgage by way of deposit of Title Deed vide letter dated 13.06.2015 in favour of applicant Bank. Copy of said letter dated 13.06.2015 is annexed and marked with letter 'A-10'.

(v) Applicant Bank has got valued the mortgaged secured property through its empanelled valuer and the valuer submitted its report dated 30.05.2018 to the applicant bank and accordingly the fair value of mortgaged property is Rs.9,60,000/-. Copy of said Valuation Report dated 30.05.2018 is annexed and marked with Letter 'A-11'.

(vi) For the purpose of securing repayment of the debit balance lying outstanding from time to time in the loan Account, the defendants / borrower(s) executed and delivered the

... ...

3TA/526 of 2020 - DRT-2/Kol

Debit Balance Confirmation Letters dated 04.09.2017, 10.10.2017 and lastly on 18.01.2018 in favour of applicant bank. Copy of said Debit Balance Confirmation Letters are annexed and marked with Letters 'A-12', 'A-13' & 'A-14' respectively.

5. The Defendants enjoyed and utilized the said credit facility by opening Account in Bank's Rajarhat Branch, at Rajarhat Main Road, Dist. - North 24-Parganas. However, the defendants failed and neglected to abide by the terms and conditions of the facility. The Defendants did not repay the outstanding Bank's dues and overdue interests in loan Account. Since the defendants did not pay any attention to regularize the Account inspite of repeated requests made by the Applicant Bank, the Account became out of order and was classified as N.P.A. on 31.01.2018. Considering aforesaid default and violation of the terms and conditions of the credit facility, the applicant Bank was compelled to issue recall demand Notice dated 02.11.2018 upon the defendants through its Ld. Advocate demanding to repay the outstanding Bank's dues, but the defendants has failed and neglected to comply with the said notice; copy of said demand notice dated 02.11.2018 along with postal receipts are annexed and marked as Annexure 'A-15'. 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-16'), and future interest @ 9.10% per annum from 01.11.2018 with monthly rests, till realization of the entire due in full, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

6. The notices / summons were sent to the Defendants No.1 & 2 by the Tribunal; service of Notices / summons upon the Defendants by postal service has been successfully delivered on 05.09.2022, such has been recorded vide Ld. Registrar-in-Charge's order dated 19.09.2022. Despite service, the defendants did not appear nor filed the written statement; thus, both the defendants were ordered to be proceeded *ex-parte* vide order dated 07.05.2024. Ld. Advocate of the applicant Bank has filed the English translation copy of Bengali Deed(s) by way of Affidavit dated 19.09.2022. Ld. Advocate of the applicant Bank has filed the written notes of arguments on 16.07.2024 wherein stated the brief facts of the case as has been narrated in the original application.

7. Applicant Bank has filed the evidence-on-affidavit affirmed by Sanjeev Kumar Gupta, Branch Manager of Bank's Rajarhat Branch, Rajarhat Main Road, Rajarhat Bazar, Dist.- North 24-Parganas along with the copy of original documents executed by the Defendants. I.A./829 of 2022 along with put-up I.A./828 of 2022 dated 30.05.2022 has been filed by the applicant bank with a prayer to allow verification of original documents; the said I.A.s were allowed and disposed of vide order dated 20.06.2022. 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 Suvendu Biswas, Deputy Branch Manager of Bank's Rajarhat Branch, at Rajarhat Main Road, Rajarhat Bazar, Dist.- North 24-Parganas on 20.06.2022, such has been recorded in

Ld. Registrar's order dated 20.06.2022. The documents produced by the Applicant Bank are exhibited and annexed as Annexure / Exhibit 'A-1' to 'A-16'.

I have heard the Ld. Advocate of the applicant Bank and perused the records.

8. 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 Housing Loan (Term Loan) of Rs.9,75,000/- vide sanction letter dated 28.10.2014. Applicant Bank has proved the creation of equitable mortgage of immovable property(s); morefully described in Schedule 'X-1' at page 25 and para 3A at page 8 to 11 of the original application.

9. On the point of limitation, Loan has been sanctioned on 28.10.2014; documents have been executed on 28.10.2014; original Application has been filed on 05.11.2018. Further, the defendants / borrower(s) have executed and delivered the Debit Balance Confirmation Letters on 04.09.2017, 10.10.2017 and lastly on 18.01.2018 in favour of applicant Bank. As such, the original Application appears to have been filed well within the period of limitation.

10. Applicant Bank has stated that the outstanding balance in Term Loan Account (inclusive of accrued interest and other charges as calculated upto 31.10.2018) for a sum of **Rs.10,78,418.90** (Rupees ten lacs seventy eight thousand four hundred eighteen and paise ninety) as on 31.10.2018, which is the amount claimed by the applicant Bank in the original Application, and the defendants No.1 & 2 are, jointly and/or severally, 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 @ 9.10% per annum, while in the Demand Promissory Note dated 28.10.2014 the rate of interest @ 10.25% per annum, has been mentioned. The defendants / borrower(s) have taken the loan for house building purposes; therefore, in my view, the *pendente lite* & future rate of interest which has been claimed by applicant Bank in O.A., i.e. @ 9.10% per annum, simple, from 01.11.2018, is allowed.

11. 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./526 of 2020 (arising out of O.A./925 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./526 of 2020 (arising out of O.A./925 of 2018), filed by the Applicant Bank, is allowed and debt is determined with cost against the Defendants No.1 & 2. It is hereby ordered that the Defendants No.1 & 2 are hereby directed to pay, jointly and / or severally the total debt amount of **Rs.10,78,418.90** (Rupees ten lacs seventy eight thousand four hundred eighteen and paise ninety) due and payable, inclusive of interest and other charges as calculated upto 31.10.2018; and interest for the period *pendente lite* and future rate @ 9.10% per annum, simple, from 01.11.2018, till realization of the entire sum due and recoverable.

(ii) Amount, if any, paid by the Defendants 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 Defendants. Accordingly, the *pendente lite* and future interest shall be calculated on the reduced amount.

(iii) The defendants No.1 & 2 are debarred from transferring, alienating, encumbering or disposing of the mortgaged immovable property(s); morefully described in Schedule 'X-1' at page 25 and para 3A at page 8 to 11 of the original application, as under –

*"ALL THAT piece and parcel of land approximately 2.48 Satak or be little more or less 01 Cottah 08 Chittack along with building situated at C.S. Dag No.5265, R.S. & L.R. Dag No.3481, Khatian No.1559, L.R. Khatian No.5637, R.S. No.140, Touzi No.125B/1, Mouza – Gopalpur, J.L. No.2, Rajarhat Gopalpur Municipality, Ward No.05 (Now under Bidhannagar Municipal Corporation Ward No.04), Holding No. RGM 5/342, BL-A, Jagardanga, Post Office – Rajarhat Gopalpur, Police Station – Airport (previously Rajarhat), Kolkata – 700136, District – North 24-Parganas, West Bengal, registered before District Sub-Registrar – II, Barasat, North 24-Parganas, West Bengal and recorded in Book – I, CD Volume No.6, Pages from 2401 to 2424, being No.02669 for the year 2014, registered in favour of Sri Yakob Ali (Defendant No.1) herein, morefully and particularly described in the Schedule of the said Deed and / or Schedule 'X-1' hereunder."*

The Defendants is also debarred from transferring, alienating, encumbering or disposing any other property(s) either movable or immovable and assets belonging to them till the aforesaid adjudicated debt amount are recovered from the Defendants No.1 & 2.

(iv) The defendants No.1 & 2 are 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 them. In case the Defendants fail 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 Defendants No.1 & 2 both moveable and immovable and also proceed against the Defendants No.1 & 2 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 Defendants No.1 & 2 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 Defendants No.1 & 2, 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./526 of 2020 (arising out of O.A./925 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 04^th day of September, 2024.

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

24/9/24 (Arbind Madhav) Presiding Officer DRT-2, Kolkata

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