Punjab National Bank vs M/s Ghosh Enterprise on 7 November 2024

Page No.**KOLKATA DEBTS RECOVERY TRIBUNAL NO. 2****ORDER SHEET (Continuation)**T.A./243 of 2019 (O.A./229 of 2018)

Case No.

Punjab National Bank (erstwhile United Bank of India) Vs

M/s Ghosh Enterprise & Anr.

<table border="1"> <thead> <tr> <th data-bbox="110 192 188 258">Date of Order</th> <th data-bbox="188 192 758 258">Order with Signature</th> <th data-bbox="758 192 881 258">Office action with date and dated Signature of parties when necessary</th> </tr> </thead> <tbody> <tr> <td data-bbox="110 258 188 904"> 17<br/> 07.11.2024 </td> <td data-bbox="188 258 758 904"> <p>Counsel for the parties:<br/> Mr. Swastik Saha, Ld. Advocate for the applicant Bank.<br/> None for the defendants.</p> <p>T.A./243 of 2019 (arising out of O.A./229 of 2018) is allowed and disposed of.</p> <p>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="758 258 881 904"></td> </tr> </tbody> </table>

1

T.A./243 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. 243 of 2019**

(arising out of O.A./229 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 Nimta Branch, at 126/1/1, M.B. Road, Nimta, District – North 24-Parganas, Kolkata – 700049.

..... Applicant Bank

-Versus-

- 1. **M/s Ghosh Enterprise**, Proprietor: Sri Debabrata Ghosh, Son of Sri Shantiram Ghosh, Village – Sonatikari, P.O.- Baidyapur, P.S.- Shasan, District – North 24-Parganas, Pin – 743423, West Bengal.

- 2. **Sri Soumen Ghosh**, Son of Sri Debabrata Ghosh, Village – Sonatikari, P.O.- Baidyapur, P.S.- Shasan, District – North 24-Parganas, Pin – 743423, 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</td> <td>: Ex-parte.</td> </tr> </table>

**FINAL ORDER / JUDGMENT**

Delivered on 07.11.2024

Applicant (Punjab National Bank) erstwhile United Bank of India instituted the present Application being the Original Application No.229 of 2018 filed in DRT-3, Kolkata on 31.03.2018 against two Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.19,39,783.28 (Rupees nineteen lacs thirty nine thousand seven hundred eighty three and paise twenty eight) 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 18.10.2019 and the same has been renumbered as T.A./243 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./1217 of 2021 along with put-up I.A./1216 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) The Defendant No.1 is a proprietorship concern namely M/s Ghosh Enterprise, represented by its proprietor Sri Debabrata Ghosh. That the Defendant No.1 approached and applied the Applicant Bank with the request to grant a credit facility by way of overdraft under United Mortgage Loan Scheme vide application dated 12.03.2016; copy of said loan Application dated 12.03.2016 is annexed and marked with Letter 'A'. Upon consideration of Loan Application, Applicant Bank was pleased to grant / sanction a credit facility by way of overdraft to the limit of Rs. 18,00,000/- (Rupees eighteen lacs) in favour of the defendant No.1 vide Sanction Letter dated 30.03.2016; copy of said Sanction Letter dated 30.03.2016 duly accepted by defendant No.1 is annexed and marked with Letter 'B'.

(ii) In consideration of the said sanction of Rs.18.00 lakhs, the defendant executed the following security documents in favour of applicant Bank all dated 30.03.2016, are as under:-

- (a) Declaration on execution on documents;

- (b) Proforma of letter to be taken when the executant signs in vernacular;

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

- (d) Demand Promissory Note of Rs.18,00,000/-

- (e) Letter of Continuity;

- (f) Letter of Lien;

- (g) Agreement under Mortgage Loan Scheme;

- (h) Hypothecation Agreement (Goods, Book Debts, Plant & Machineries)

Copy of said documents are annexed and marked with Letters 'C', 'C-1', 'C-2', 'C-3', 'C-4', 'C-5', 'C-6' & 'C-7' respectively.

(iii) In consideration of the agreement to grant credit facilities of Rs.18,00,000/- to the defendant No.1, the defendant No.2 executed guarantee documents dated 30.03.2016 together with accrued interest, cost, charges, expenses and other moneys as payable. The said guarantee is continuing guarantee and security. Copy of Guarantee documents are annexed and marked with Letter 'D'.

(iv) Pursuant to the applicant Bank having granted credit facilities, the defendant No.1 proprietor of M/s Ghosh Enterprise has created equitable mortgage in respect of his immovable properties, morefully described in para 3A at page 3 to 5 and page 8 & 9 of the O.A., by deposit of Title Deeds with the applicant Bank. The mortgaged immovable properties annexed and marked with Letter 'E'. The defendant No.1 has also confirmed the deposit of Title Deed by executing letter of confirmation for deposit of Title Deed dated 02.04.2016 together with the copy of title deed along with English translated version and letter of confirmation to deposit of title deeds, are annexed and marked with letter 'E', 'E-1' & 'E-2'.

5. The Defendant enjoyed the said credit facility by opening Account in Bank's Nimta Branch, 126/1/1, M.B. Road, Nimta, Kolkata – 700049. 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 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. Since the defendant failed and neglected to repay the outstanding Bank's due, the applicant Bank compelled to issue demand notice U/s 13(2) of the Sarfaesi Act, 2002 dated 11.10.2017 along with the statement of Account upon the defendants calling upon them to pay a sum of Rs.18,66,176.21, but the defendants did not pay any interest to repay the Bank's dues, copy of said demand notice dated 11.10.2017 is annexed and marked with Letter 'F'. Thereafter, applicant Bank issued demand notice dated 12.01.2018 through its Advocate upon the defendants, but the defendants did not comply the said notice; copy of notice dated 12.01.2018 and postal track consignment are annexed and marked with Letter 'G'. Again, the applicant Bank issued another demand Notice dated 16.03.2018 through its Advocate and the same were received by the defendants No.1 & 2 on 19.03.2018, but all were in vain. Copy of demand notice dated 16.03.2018 and postal track consignment are annexed and marked with Letter 'H'. 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 'I'), and future interest at prescribed rate compounded monthly rests, from the date of institution of the O.A., 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 Ld. Registrar's order dated 15.09.2022, and Ld. Counsel for defendants submits a letter dated 15.09.2022 confirming receipt of amended T.A. copy. 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 22.03.2024. Ld. Advocate of the applicant Bank has submitted arguments on 22.03.2024.

7. Applicant Bank has filed the evidence-on-affidavit affirmed by Ajit Kumar, Senior Manager of erstwhile Bank's Nimta Branch, P.S.- Nimta, Kolkata – 700049, Dist.- North 24-Parganas along with the copies 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. Ajit Kumar, Senior Manager of Bank's Nimta Branch, 126/1/1, M.B. Road, Nimta, Kolkata – 700049 on 06.07.2018, such has been recorded in Ld. Registrar-in-charge's order dated 06.07.2018. The documents produced by the Applicant Bank are exhibited and annexed at 'A' to 'I'.

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 limit of Rs.18.00 lakhs. Applicant Bank has proved the mortgaged, immovable properties, morefully described in para 3A at page 3 to 5 and page 8 & 9 of the O.A.

9. On the point of limitation, Loan has been sanctioned on 30.03.2016; documents have been executed on 30.03.2016; original Application has been filed on 26.03.2018. 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 and other charges calculated upto 31.01.2018) is **Rs.19,39,783.28** (Rupées nineteen lacs thirty nine thousand seven hundred eighty three and paise twenty eight) 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 of entire dues. I allow the claim as made by the applicant Bank in the original Application. Applicant Bank has prayed future interest at prescribed rate with compounded monthly rests from 01.02.2018 till the date of payment or recovery from the defendants, while in Demand Promissory Note dated 30.03.2016 the rate of interest @ 9.65% per annum with monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 9.65% per annum, with quarterly rests, from 01.02.2018, 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./243 of 2019 (arising out of O.A./229 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./243 of 2019 (arising out of O.A./229 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.19,39,783.28** (Rupees nineteen lacs thirty nine thousand seven hundred eighty three and paise twenty eight) 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 @ 9.65% 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 mortgage immovable properties; morefully described in para 3A at page 3 to 5 and page 8 & 9 of the original application, are as under –

"Bengali Gift Deed No.3923 for the year 1977, registered in the office of the Additional District Sub-Registrar at Barasat, North 24-Parganas, West Bengal, recorded in Book No.I, Volume No.13, Pages from 247 to 253, being No.3923 for the year 1977 and the all that piece and parcel of land measuring about 11 decimals a little more or less located and situated in the following manner:

08 decimals of land out of the total 11 Decimals of land located and situated at Mouza – Kismat Sonatikari, J.L. No.154, L.R. Khatian No.427, Dag No.238, 239 and 240, P.S.- Barasat, (presently P.S.- Shasan)) under Falti Beliaghata Gram Panchayet, North 24-Parganas.

03 decimals of land out of the total 11 Decimals of land located and situated at Mouza – Baidyapur, J.L. No.150, L.R. Khatian No.406, Dag No.1100, P.S.- Barasat, (presently P.S.- Shasan)) under Falti Beliaghata Gram Panchayet, North 24-Parganas."

The Defendants No.1 & 2 are 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 immoveable and also proceed against the Defendants 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./243 of 2019 (arising out of O.A./229 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 07^th day of November, 2024.

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

(Arbind Madhav) 11.24 Presiding Officer DRT-2, Kolkata

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