CANARA BANK vs RAJU SEN on 5 November 2024

1. **Raju Sen**, proprietor of M/s NEXT, Office address: 14/A, Ghosh Lane, Kolkata – 700006, and residential address: BC 39/5, School Para, Deshbandu Nagar, Baguiati, Kolkata – 700059.

..... Defendant

Counsel for parties:

<table border="0"> <tr> <td>For the Applicant Bank</td> <td>: Mr. Archan Dutt, Ld. Advocate</td> </tr> <tr> <td>For the Defendant</td> <td>: Ex-Parte</td> </tr> </table>

**FINAL ORDER / JUDGMENT**

Delivered on 05.11.2024

Applicant, Canara Bank instituted the present Application being the Original Application No.102 of 2018 filed in DRT-3, Kolkata on 08.02.2018 against single Defendant under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.10,94,935.77 (Rupees ten lacs ninety four thousand nine hundred thirty five and paise seventy seven) as on 31.01.2018 towards OCC & current account and 25.01.2018 towards Term Loan Account together with further interest @ 15.30% per annum, till realization of the entire dues. Subsequently, the instant case has been transferred to DRT-2, Kolkata vide 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 17.10.2019 and the same has been renumbered as T.A./47 of 2019 vide Ld. Registrar's order dated 24.10.2019.

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

(i) The defendant is carrying on business under the name and style of M/s NEXT as sole proprietor. That the Defendant had approached and applied before the applicant Bank to avail cash credit facility vide loan Application dated 19.03.2014. Upon consideration of loan application, applicant Bank was pleased to grant / sanction an open cash credit facility to the limit of Rs.3,00,000/- (Rupees three lacs) vide sanction Memorandum dated 19.03.2014. Copy of loan application and sanction Memorandum both dated 19.03.2014 are annexed and marked with Letter 'A'.

(ii) To avail the said open cash credit facility, the defendant executed the following security documents all dated 19.03.2014 in favour of applicant Bank:

- (a) Request for overdraft facilities;

- (b) Pro-note for Rs.3.00 lacs;

- (c) Cash credit agreement for Rs.3.00 lacs.

Copy of said documents are annexed and marked with Letter 'B'.

(iii) The defendant / borrower hypothecated stocks of computer etc. both present and future book debts, outstanding monies, receivables etc. by an cash credit agreement dated 19.03.2014 in favour of applicant Bank by way of first charge as security to the loan. Copy of which is annexed and marked with Letter 'B-1'.

(iv) Again the defendant had approached and applied for sanction of Term Loan of Rs.2,34,000/- vide loan application dated 15.05.2014. On consideration of loan application, the defendant was pleased to grant / sanction the term loan of Rs.2,34,000/- (Rupees two lacs thirty four thousand) vide sanction Memorandum dated 15.05.2014. Copy of loan application and sanction Memorandum both dated 15.05.2014 are annexed and marked with Letter 'C'.

(v) To avail the said term loan facility, the defendant executed the following security documents all dated 15.05.2014 in favour of applicant Bank:

- (a) Deed of Hypothecation Re.: Machinery;

- (b) Pro-note for Rs.2,34,000/-;

- (c) Take Delivery Letter to DPN;

- (d) Letter of Undertaking re: Loans & Advances.

Copy of said documents are annexed and marked with Letter 'D'.

(vi) The defendant / borrower hypothecated the Computer Sets by executing the Deed of Hypothecation Re: Machinery dated 15.05.2014 by way of first charge as security for the aforesaid loan granted by the applicant bank; copy of which is annexed and marked with Letter 'D-1'.

3. The Defendant availed and enjoyed the said credit facilities by opening Accounts in Bank's Hatibagan Bazar Branch, 1, Abhoy Guha Road, P.S.- Shyampukur, Kolkata – 700005. The loan amount disbursed to the borrower's accounts. However, the defendant failed and neglected to abide by the terms and conditions of the facilities. The Defendant did not repay the outstanding Bank's dues, agreed EMIs and overdue interests in loan Accounts. Since the defendant did not pay any attention to regularize the Accounts inspite of repeated requests, the Accounts became out of order and was classified as N.P.A. on 27.08.2014. In view of the failure on the part of the defendant, the applicant Bank issued Lawyer's Notice dated 30.01.2018 upon the defendant demanding to repay the outstanding loan amounts, but the defendant did not comply the said notice; copy of Lawyer's notice dated 30.01.2018 along with postal receipts are annexed and marked with Letter 'E'. Certified copies of Statement of Accounts along with Certificate under Bankers' Books Evidence Act, with interest calculation sheet, have been filed to show and prove the dues (Letter 'F'), and future interest @ 15.30% per annum, till the date of 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 Defendant by the Tribunal; service of Notice / summons upon the Defendant by postal service has been successfully completed, such has been recorded vide Ld. Registrar's order dated 20.04.2023. 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 29.01.2024. Ld. Advocate of the applicant Bank has filed the written notes of arguments on 17.05.2024 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 07.10.2024.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Kumar Sankar Roychowdhury, Manager of Bank's Hatibagan Bazar Branch, 1, Abhoy Guha Road, Kolkata – 700005 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 the original documents have been returned to Ms. Anindita Mahato, Officer of Bank's Hatibagan Bazar Branch, 1, Abhoy Guha Road, Kolkata – 700005 on 28.11.2019, such has been recorded in Ld. Registrar's order dated 28.11.2019. The documents produced by the Applicant Bank are exhibited and annexed at 'A-1' to 'A-8'.

I have heard the Ld. Advocate 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 corroborated the averments made in the O.A. Applicant Bank has proved the sanction of O.C.C. and Term Loan facility of Rs.3.00 lacs and Rs.2,34,000/- respectively. Applicant Bank has proved the creation of hypothecated stocks of computer, receivables, machinery etc., described in Particulars at page 104 & 105 of the original application.

7. On the point of limitation, Loan has been sanctioned on 19.03.2014 & 15.05.2014; security documents have been executed on 19.03.2014 & 15.05.2014 and original Application has been filed on 08.02.2018. The defendant / borrower has paid / deposited for an amount of Rs.10,000/- in loan account on 09.02.2015 (by Cash); 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 Loan Accounts (inclusive of accrued Interest and other charges calculated upto 31.01.2018 towards OCC & current account and 25.01.2018 towards Term Loan Account) for an aggregate sum of **Rs.10,94,935.77** (Rupees ten lacs ninety four thousand nine hundred thirty five and paise seventy seven) as on 31.01.2018 towards OCC & current account and 25.01.2018 towards Term Loan Account, 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 @ 15.30% per annum, while in the Pro-note dated 19.03.2014 & 15.05.2014 the rate of interest @ 10.20% and @ 10.75% per annum respectively, have been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 10.50% per annum, with quarterly rests, from 01.02.2018, 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./47 of 2019 (arising out of O.A./102 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./47 of 2019 (arising out of O.A./102 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.10,94,935.77** (Rupees ten lacs ninety four thousand nine hundred thirty five and paise seventy seven) due and payable, inclusive of interest and other charges as calculated upto 31.01.2018 towards OCC & current account and 25.01.2018 towards Term Loan Account; and interest for the period *pendente lite* and future rate @ 10.50% per annum, with quarterly rests, from 01.02.2018, 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 'Particulars' at page 104 & 105 and para 3A at page 4 & 5 of the original Application, as under –

"Hypothecated stock of Computer, Compute parts etc. and the whole of present future book debts, outstanding monies, claims, receivables etc. and Computer Sets in favour of Bank by way of first charge as security for the aforesaid loan granted by the applicant bank."

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 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./47 of 2019 (arising out of O.A./102 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 05^th day of November, 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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