CANARA BANK vs RATNESHWAR MISHRA on 4 October 2024

1. **Ratneswar Mishra**, proprietor of M/s Balaji Trading Company, son of Sri Hari Narayan Mishra, 892/2, Dakshindari Road, 1^st Floor, Kolkata – 700048, and residing at 261, Gorakshya Basi Road, Dum Dum, Kolkata – 700028.

..... Defendant

Counsel for parties:

For the Applicant Bank : Mr. Ashoke Paul, Ld. Advocate For the Defendant : *Ex-Parte*

**FINAL ORDER / JUDGMENT**

Delivered on 04.10.2024

Applicant (Syndicate Bank) erstwhile Canara Bank instituted the present Application being the Original Application No.236 of 2018 filed in DRT-3, Kolkata on 31.03.2018 against single Defendant under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.33,05,421.54 (Rupees thirty three lacs five thousand four hundred twenty one and paise fifty four) as on 28.02.2018 together with further interest @ 17.2% per annum, with monthly rests, on and from 01.03.2018, 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 19.10.2019 and the same has been renumbered as T.A./250 of 2019 vide Ld. Registrar's order dated 28.10.2019.

2. Syndicate Bank has been merged / amalgamated into Canara Bank vide Gazette Notification dated March 04, 2020, issued by the Government of India published under Extraordinary Part-II, Section 3, sub-section (i) in the Gazette of India in terms of Section 9 of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970. In view of the merger / amalgamation of Syndicate Bank into Canara Bank, the Applicant Name in this case should be read / inserted as Canara Bank instead of Syndicate Bank.

3. In accordance with the Notice dated 30.07.2020 of this Tribunal, Ld. Advocate for Canara Bank has filed a petition being I.A./237 of 2021 praying for amendment of Cause Title in view of amalgamation of Syndicate Bank with Canara Bank vide G.O.I. Notification dated 04.03.2020; and in accordance with the direction of the Tribunal necessary amendment in cause title has been carried out by Ld. Advocate of the applicant Bank on 20.03.2021, such has been recorded in Ld. Registrar's order dated 20.03.2021.

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

(i) That the Defendant approached and allied with the Applicant Bank for sanction of overdraft facility upto a limit of Rs.25.00 lakhs vide loan application dated 28.03.2014; copy of said loan application alongwith particulars of assets and liabilities both dated 28.03.2014 are annexed and collectively marked with Letter 'A-1'. Upon consideration of Loan Application, Applicant Bank was pleased to grant / sanction an overdraft facility upto the limit of Rs.25,00,000/- (Rupees twenty five lacs) in favour of the defendant. The said overdraft facility was to be repaid by the defendant with interest @ 11.75% per anum compounded with monthly rests.

(ii) In consideration of the said sanction of Rs.25.00 lakhs, the defendant executed the following security documents in favour of applicant Bank, as under:-

- (a) A composite hypothecation Agreement dated 31.03.2014;

- (b) A Guarantee Agreement dated 31.03.2014;

- (c) A statement of Stocks of raw materials and finished goods as on 25.03.2014.

Copy of said documents are annexed and collectively marked as Annexures 'A-2', 'A-3' & 'A-4' respectively.

(iii) The defendant acknowledged his liabilities by a Letter dated 17.05.2016 admitted and acknowledged the debt & liability towards the applicant Bank; copy of which is annexed and marked with Letter 'A-5'.

5. The Defendant enjoyed the said credit facility by opening Account in Bank's Manicktola Branch, 171D & 173A, Vivekananda Road, Kolkata – 700006. 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 the loan Account. Inspite of repeated requests 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. on 31.03.2016.

Since the defendant failed and neglected to repay the outstanding Bank's due, the applicant Bank compelled to issue legal notice dated 22.03.2018 upon the defendant demanding to repay the outstanding loan amount, but the defendant did not pay any interest to repay the Bank's dues, copy of said notice dated 22.03.2018 is annexed and marked with Letter 'A-6'. 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-7' & 'A-8'), and future interest @ 17.2% per annum with monthly rests, on and from 01.03.2018, till final realization, has been prayed. Applicant Bank submitted that their claim in the Application is within limi

6. The Notice / summons was sent to the sole Defendant by the Tribunal; service of Notice / summons upon the Defendant by postal service / hand delivery has been successfully completed and the defendant had appeared through Advocate on 02.07.2019 by filing vakalatnama, such has been recorded vide Ld. Registrar's order dated 02.07.2019. Ld. Advocate for Canara Bank has filed a petition being I.A./237 of 2021 praying for amendment of Cause Title in view of amalgamation of Syndicate Bank with Canara Bank vide G.O.I. Notification dated 04.03.2020; and in accordance with the direction of the Tribunal necessary amendment in cause title has been carried out by Ld. Advocate of the applicant Bank on 20.03.2021. After 02.07.2019, the defendant did not appear nor filed the written statement; thus, the sole defendant was ordered to be proceeded *ex-parte* vide order dated 16.04.2024. Ld. Advocate of the applicant Bank has submitted argument on 10.09.2024.

7. Applicant Bank has filed the evidence-on-affidavit affirmed by Abadhan Rituparna Behera, Branch Manager of erstwhile Bank's Manicktola Branch, 171D & 173A, Vivekananda Road, P.S.- Burtolla, Kolkata – 700006 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 Sri A. R. Behera, Branch Manager of erstwhile Bank's Manicktola Branch, 171D & 173A, Vivekananda Road, Kolkata – 700006 on 07.09.2018, such has been recorded in Ld. Registrar-in-Charge's order dated 07.09.2018. The documents produced by the Applicant Bank are exhibited and annexed at 'E-1' to 'E-8'.

I have heard the Ld. Advocate for 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 overdraft facility upto the limit of Rs.25.00 lakhs. Applicant Bank has proved the hypothecated movable assets of the defendant; morefully described in 'Schedule of Securities' at page 24 and para 3A at page 7 & 8 of the original application.

9. On the point of limitation, Loan has been sanctioned and documents have been executed on 31.03.2014; original Application has been filed on 31.03.2018. It is observed that the defendant acknowledged his liabilities by a Letter dated 17.05.2016 admitted and acknowledged the debt & liability towards the applicant Bank (Exhibit 'E-5'). As such, the original Application appears to have been filed well within the period of limitation.

10. Applicant Bank stated that the outstanding balance in loan Account (inclusive of accrued interest calculated upto 31.03.2016) is Rs.25,13,011.24 (Rupees twenty five lacs thirteen thousand eleven and paise twenty four) and the unapplied interest from 01.04.2016 to 28.02.2018 is Rs.7,92,410.30 has been added / debited with the Account; hence the outstanding loan amount comes to **Rs.33,05,421.54** (Rupees thirty three lacs five thousand four hundred twenty one and paise fifty four) as on 28.02.2018, which is the amount claimed by the applicant Bank in the original Application, and the sole defendant is liable to repay the said amount to the applicant Bank with *pendente lite* and future interest, till realization of entire dues. I allow the claim as made by the applicant Bank in the original Application. Applicant Bank has prayed future interest @ 17.2% per annum, with monthly rests, from 01.03.2018, till realization; while in para 5 (v) at page 10 of the original application, applicant Bank has stated that the overdraft facility was to be repaid by the defendant with interest @ 11.75% per annum compounded with monthly rests. Therefore, in my view, the *pendente lite* & future rate of interest @ 11.75% per annum, with quarterly rests, from 01.03.2018, 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. Hence, the O.A./T.A. being T.A./250 of 2019 (arising out of O.A./236 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./250 of 2019 (arising out of O.A./236 of 2018), filed by the Applicant Bank, is allowed and debt is determined with cost against the Defendant. It is hereby ordered that the Defendant is hereby directed to pay the total debt amount of **Rs.33,05,421.54** (Rupees thirty three lacs five thousand four hundred twenty one and paise fifty four) due and payable, inclusive of interest and other charges as calculated upto 28.02.2018; and interest for the period *pendente lite* and future rate @ 11.75% per annum, with quarterly rests, from 01.03.2018, 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 is debarred from transferring, alienating, encumbering or disposing of the hypothecated movable assets, described in Annexure 'B' at page 4 of the original Application:

**"ALL THAT 9 numbers of 2009 manufactured Juki-make Sewing Machine (Complete Set) lying at 892/2, Dakshindari Road, 1^st Floor, Kolkata – 700048 and 19 numbers of 2009 manufactured Juki-make Sewing Machine (Complete Set) lying at Raigachi Sesh More Rajarhat, P.O.- Rajarhat, P.S.- Airport, District – 24-Parganas (North), Kolkata – 700135."**

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 them. 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 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./250 of 2019 (arising out of O.A./236 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 October, 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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