Punjab National Bank vs M S BABA PANCHANAN BHANDAR on 5 November 2024

Page No.

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

Punjab National Bank

T.A./95 of 2019 (O.A./186 of 2018) **Case No.** \_\_\_\_\_

Vs.

M/s Baba Panchanan Bhandar & anr.

<table border="1"> <thead> <tr> <th data-bbox="111 196 188 261">Date of Order</th> <th data-bbox="188 196 758 261">Order with Signature</th> <th data-bbox="758 196 882 261">Office action with date and dated Signature of parties when necessary</th> </tr> </thead> <tbody> <tr> <td data-bbox="111 261 188 905"> <p>16<br/>05.11.2024</p> </td> <td data-bbox="188 261 758 905"> <p>Counsel for the parties:<br/> Mr. Arpan Bose, Ld. Advocate representing Mr. Swastik Saha, Ld. Advocate for the applicant Bank.<br/> None for the defendants.<br/> T.A./95 of 2019 (arising out of O.A./186 of 2018) is allowed and disposed of.<br/> Final order / Judgment is in separate sheet of 6 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="758 261 882 905"></td> </tr> </tbody> </table>

1

T.A./95 of 2019 – 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. 95 of 2019

(arising out of O.A./186 of 2018)

In the matter of -

**Punjab National Bank** (erstwhile United Bank of India), a body corporate constituted under Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970, having its Head Office at Plot No.4, Sector-10, Dwarka, New Delhi – 110075,, and carrying on Banking business, *inter-alia*, through its Birati Branch, at Mahajatinagar, 88, Sarat Bose Road, P.O.- Rajbari, District – North 24-Parganas, Kolkata – 700081.

..... Applicant Bank

-Versus-

- 1. **M/s Baba Panchanan Bhandar**, proprietor: Pradip Das, Son of Late Prafulla Kumar Das, Vill.- Koyra, P.O.- Kadambagachi, P.S.- Duttapukur, District – North 24-Parganas, Pin – 700124, West Bengal.

- 2. **Sangita Das**, Wife of Pradip Das, Vill.- Koyra, P.O.- Kadambagachi, P.S.- Duttapukur, District – North 24-Parganas, Pin – 700124, West Bengal.

..... Defendants

Counsel for parties:

<table border="0"> <tr> <td>For the Applicant Bank</td> <td>: Mr. Swastik Saha</td> </tr> <tr> <td>For the Defendants No.1 &amp; 2</td> <td>: Ms. Tumpa Roy</td> </tr> </table>

**FINAL ORDER / JUDGMENT**

Delivered on 05.11.2024

Applicant (Punjab National Bank) erstwhile United Bank of India instituted the present Application being the Original Application No.186 of 2018 filed in DRT-3, Kolkata on 19.03.2018 against two Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.10,98,204.00 (Rupees ten lacs ninety eight thousand two hundred four) as on 31.01.2018 together with further interest at the rate prescribed from time to time compounded with monthly rests, till the date of payment or recovery from the defendants. 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 17.10.2019 and the same has been renumbered as T.A./95 of 2019 vide Ld. Registrar's order dated 28.10.2019.


2. United Bank of India has been merged / amalgamated into Punjab National 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 United Bank of India into Punjab National Bank, the Applicant Name in this case should be read / inserted as Punjab National Bank instead of United Bank of India.

3. In accordance with the Notice dated 30.07.2020 of this Tribunal, Ld. Advocate for Punjab National Bank has filed a petition being I.A./1195 of 2021 along with put-up I.A./1194 of 2021 praying for amendment of Cause Title in view of amalgamation of United Bank of India with Punjab National 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 08.11.2021, such has been recorded in Ld. Registrar-in-charge's order dated 08.11.2021.

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

(i) That the Defendant No.1 is the proprietorship concern namely M/s Baba Panchanan Bhandar, represented by its Proprietor Pradip Das. The defendant No.1 applied and approached before the applicant Bank for financial assistance vide loan Application dated 29.08.2015 under United Mortgage Loan Scheme; copy of said loan application dated 29.08.2015 is annexed and marked with Letter 'A'. At the request of defendant No.1, applicant Bank was pleased to grant / sanction a Credit facility to the limit of Rs.9,50,000/- (Rupees nine lacs fifty thousand) in favour of the defendant No.1, vide sanction letter dated 04.09.2015 duly accepted by the defendant No.1. Copy of sanction letter dated 04.09.2015 is annexed and marked with Letter 'B'.

(ii) In consideration of the aforesaid credit facility of Rs.9.50 lakhs, the defendant No.1 executed the following security documents all dated 04.09.2015 in favour of applicant Bank:

- (a) Text of the consent clause from the borrower along with documents;

- (b) Demand Promissory Note for Rs.9.50 lacs;

- (c) Letter of continuity;

- (d) Letter of Lien;

- (e) Agreement under Mortgage Loan Scheme;

- (f) Hypothecation Agreement (Goods, Book Debts, Plant & Mcchineries).

Copies of said documents are annexed and marked with Letter 'C', 'C-1', 'C-2', 'C-3', 'C-4' & 'C-5' respectively.

(iii) In consideration of the agreement to grant credit facility to the defendant No.1, the defendant No.2 executed necessary document on 04.09.2015; the defendant No.2 shall forthwith upon demand pay to the Bank the sum of Rs.9,50,000/- together with interest, cost, charges etc. The said guarantee is continuing guarantee and security. Copy of said Guarantee documents is annexed and marked with Letter 'D'.

(iv) To secure the aforesaid credit facility of Rs.9.50 lacs, Sri Pradip Das, the proprietor of the defendant No.1 created equitable mortgage in respect of his immovable property, morefully described in para 3A at page 3 & 4 of the O.A., by deposit of Title Deed being No.134 for the year 2004, registered in the Office of Addl. District Sub-Registrar at Kadambagachi, North 24-Parganas, with the applicant Bank. Further, the mortgagor, Sri Pradip Das has also confirmed the deposit of title deed by executing a letter of confirmation for deposit of Title Deed(s) on dated 04.09.2015. The property detail together with copy of Title Deed along with English translation copy of Deed and letter of confirmation to deposit of title deed(s) are annexed and marked with Letter 'E', 'E-1' & 'E-2'

5. The Defendants enjoyed and utilized the said credit facility by opening Account in erstwhile Bank's Birati Branch, Mahajatinagar, 88, Sarat Bose 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. Considering aforesaid default and violation of the terms and conditions of the credit facility, the applicant Bank was compelled to issue demand Notice U/s 13(2) of the Sarfaesi Act, 2002 dated 06.07.2017 along with Statement of Account upon the defendants 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 06.07.2017 is annexed and marked with Letter 'F'. Thereafter, applicant bank issued a demand notice dated 08.02.2018 upon the defendants by its Advocate calling upon them to repay the outstanding loan amount, but they did not do so; copy of said demand notice dated 08.02.2018 and postal track consignment are annexed and marked with Letter 'G'. 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 'H'), and future interest at prescribed rate from 01.02.2018, till the date of payment or recovery from the defendants, 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 completed, such has been recorded vide order dated 23.07.2018 and 28.08.2023; both the defendants appeared through Advocate on 23.07.2018. At the request of Ld. Advocate of the applicant Bank, the matter was proceeded to be *ex-parte* vide order dated 08.01.2024. Ld. Advocate of the applicant Bank has submitted arguments on 21.05.2024.

7. Applicant Bank has filed the evidence-on-affidavit affirmed by Musa Karim Sardar, Senior Manager of erstwhile Bank's Birati Branch, P.S.- Airport, Dist.- North 24-Parganas, Kolkata – 700081 along with the copy of original documents executed by the Defendants. 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 Mr. Musa Karim Sardar, Senior Manager of erstwhile Bank's Birati Branch, P.S.- Airport, Dist.- North 24-Parganas on 23.07.2018, such has been recorded in Ld. Registrar-in-Charge's order dated 23.07.2018. The documents produced by the Applicant Bank are exhibited and annexed at 'A' to 'H'.

8. An affidavit-in-opposition dated 04.12.2023 has been filed on behalf of defendants No.1 & 2. In the affidavit-in-opposition, the Defendants took objections to the averments contained in several paras of the Application. In para-wise replies the contents have been denied & disputed by the Defendants except what are the matters of record and what have been specifically admitted by the Defendants.

In the opposition the defendants No.1 & 2 stated that – Bank has sanctioned the loan relying on false documents; the claim amount is wrongfully and with a mal-intention calculated; the defendants never visited the branch office of the concerned bank branch; he defendants categorically deny the receipt of demand notice dated 08.02.2018; the defendant No.1 never agreed to mortgage his property at any relevant point of time; the documents is not countersigned as the signed and is hand written by some unknown person. Defendants No.1 & 2 stated that the loan has been sanctioned under false and forgery in collusion with the Bank Manager; the defendants submit that the O.A. should be dismissed with cost.

Findings and observations:

(i) It is evident from the statement of Account filed by Applicant Bank that the defendants have defaulted in repayment of the loan; if there is default in repayment of the loan, Applicant Bank has every right to proceed against the Defendant(s) for realization of outstanding dues. Moreover, the applicant Bank vide its letters / Notices informed the Defendants about the over-dues in their loan Account and also requested to regularize the Loan Account.

(ii) It is observed that the defendants / borrower(s) did not repay the Bank's outstanding dues and overdue interests in the loan Account(s); the Account(s) became bad and was classified as NPA. Certified copies of Statement of Account(s) along with Certificate under Bankers' Books Evidence Act, with certified copies of unapplied interest (Annexure 'H', have been filed are clearly showing and prove the dues. Applicant Bank by the evidence-on-affidavit of Mr. Musa Karim Sardar, the Senior Manager of the Bank's Birati Branch, P.S.- Airport, Dist.- North 24-Parganas, Kolkata – 700081 has deposed the correctness of the affidavit and certified copies of the Account(s). Beyond that nothing more has to be deposed by an Officer / Manager of the Bank. It is, thus, obvious that apart from the entries of the Books of Account(s) there are ample evidence on the record to corroborate the said entries.

(iii) The documents executed by the borrower(s) / defendants from time to time are duly proved by applicant Bank and the witness of the Applicant. The applicant Bank has sufficient proof for filing the Application due to disbursement / availment of loan and on default in repayment of the loan by the Defendants inspite of demands made as per exhibited documents filed by Applicant Bank. Upon perusal on loan documents executed by the defendants it reveals that Sri Pradip Das, Proprietor of M/s Baba Panchanan Bhandar, defendant No.1 has signed and delivered the necessary loan documents in favour of applicant Bank and Sangita Das, the defendant No.2 has signed and delivered the hypothecated agreement and Letter of Guarantee in favour of applicant Bank.

(iv) After perusing the documents on record and taking into consideration of the facts and circumstances of the case, I find that the Applicant Bank has every cause of action to file this original Application as the Defendants failed to comply with the terms of the documents executed by them and also the repayment was not made even on demand. The Defendants have not filed any documents to strengthen their contention, whereas the Applicant Bank has filed sufficient proof and documents to prove it's claim.

9. A petition being I.A./1659 of 2023 dated 15.12.2023 has been filed by the defendants No.1 & 2 praying to allow the I.A. and grant leave for inspection by the defendant of the original documents annexed with the O.A./T.A. and also praying to grant leave to file supplementary Affidavit-in-opposition after verification of documents.

(iii) After filing the I.A./1659 of 2023 no one has appeared on behalf of any of the defendants to press the I.A. Hence, the I.A./1659 of 2023 dated 15.12.2023 is dismissed and disposed of for non-prosecution.

10. 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 credit facility to the limit of Rs.9.50 lakhs vide sanction letter dated 04.09.2015. Applicant Bank has proved the creation of equitable mortgage of immovable property(s); morefully described in para 3A at page 3 & 4 of the original application.

11. On the point of limitation, Loan has been sanctioned on 04.09.2015; documents have been executed on 04.09.2015; original Application has been filed on 19.03.2018. As such, the original Application appears to have been filed well within the period of limitation.

12. Applicant Bank has stated that the outstanding balance in Loan Account (inclusive of accrued interest and other charges as calculated upto 31.01.2018) for a sum of **Rs.10,98,204.00** (Rupees ten lacs ninety eight thousand two hundred four) as on 31.01.2018, 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 at the prescribed rate, while in the Demand Promissory Note dated 04.09.2015 the rate of interest @ 9.90% per annum, has been mentioned. Therefore, the *pendente lite* & future rate of interest @ 9.90% per annum, with quarterly rests, from 01.02.2018, is allowed.

13. 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./95 of 2019 (arising out of O.A./186 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./95 of 2019 (arising out of O.A./186 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.10,98,204.00** (Rupees ten lacs ninety eight thousand two hundred four) due and payable, inclusive of interest and other charges as calculated upto 31.01.2018; and interest for the period *pendente lite* and future rate @ 9.90% 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 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 para 3A at page 3 & 4 and page 7 of the original application, as under –

*"Bengali Sale Deed No.134 for the year 2004, registered in the office of the Additional District Sub-Registrar at Kadambagachi, North 24-Parganas, West Bengal, recorded in Book No.1, Volume No.3, Pages from 179 to 186, being No.134 for the year 2004 and the property located and situated at Mouza – Koyra, J.L. No.142, Touzi – No.146, Re.Sa No.131, L.R.Khatian No.743 and 731, Dag No.611, P.S.- Barasat (presently P.S.- Duttapukur) under Kadambagachi Gram Panchayet, North 24-Parganas and the land measuring about 8 decimals be the name or a little more or less along with a single storied residential building stands in the name of Pradip Das."*

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.

(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./95 of 2019 (arising out of O.A./186 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) 1.24 Presiding Officer DRT-2, Kolkata

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