UCO BANK vs MRS SUMITA SAHA on 20 December 2024

1. 1. **Mrs. Sumita Saha**, proprietor of M/s Machpharma, situated at 101, Hemanta Basu Sarani, Basunagar, Pyarabagan, Madhyamgram, Dist.- North 24-Parganas, Pin – 700129, having another office at 4, B.N. Sarkar Sarani, Ground Floor, Hare Street, Kolkata – 700072; and residing at BL-B, 1^st Floor, FL No.1A, Holding No.35/1, Rishi Bankim Chandra Road, South Dumdum, Near Central Jail, Kolkata – 700028.

2. 2. **Mr. Shankar Saha**, son of Lt. N.N. Saha, BL-B, 1^st Floor, FL No.-1A, Holding No.35/1, Rishi Bankim Chandra Road, South Dumdum, Near Central Jail, Kolkata – 700028.

..... Defendants

Counsel for parties:

For the Applicant Bank : Mr. Rathin Dey

For the Defendants : Ex-Parte

**FINAL ORDER / JUDGMENT**

Delivered on 20.12.2024

Applicant, UCO Bank instituted the present Application being the Original Application No.330 of 2018 filed in DRT-3, Kolkata on 03.05.2018 against two Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.37,97,035.00 (Rupees thirty seven lacs ninety seven thousand thirty five) as on 31.03.2018 together with further interest, costs and other charges, 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 21.10.2019 and the same has been renumbered as T.A./306 of 2019 vide Ld. Registrar's order dated 29.10.2019.

2. 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 being the proprietor of the proprietorship firm, namely M/s Machpharma and the defendant No.2 became the guarantor. At the request of defendant No.1, applicant Bank was pleased to grant / sanction a Cash Credit facility to the limit of Rs.1,50,00,000/- (Rupees one crore fifty lacs) in favour of the defendant No.1, vide sanction letter dated 30.08.2017 on certain terms and conditions mentioned in the sanction letter. The primary security of the said credit facility was the hypothecation of stock-on-trade, book debts, bill etc. and all other current assets of the unit present and future and equitable mortgage of immovable properties. At the relevant point of time the rate of interest was @ 10.20% per annum with monthly rests. Copy of sanction letter dated 30.08.2017 is annexed and marked as Annexure 'A'.

(ii) In acknowledgement of granting the said credit facility of Rs.150.00 lakhs, the defendants executed and delivered the following security documents all dated 30.08.2017 in favour of applicant Bank:

- (a) Demand Promissory Note for Rs.1,50,00,00/-;

- (b) Confirmation of the terms and condition of the sanction dated 30.08.2017;

- (c) Declaration relates to the said cash credit loan as well as confirmation of all credit clause;

- (d) Composite Deed of hypothecation executed by defendant No.1;

- (e) Personal Guarantee against the said cash credit loan executed and delivered by defendant No.2; Copies of said documents are annexed and marked as Annexure 'B' to 'F' respectively.

(iii) To secure the aforesaid cash credit facility, the defendant No.1 created equitable mortgagee in respect of his immovable properties, described in Schedule Annexure 'L' at page 151 and para 3A at page 7 of the O.A., by deposit of Title Deeds (i) being No.04958 for the year 2006 on 30.08.2017 and (ii) being No.09456 for the year 2003 on 30.08.2017 in favour of applicant Bank. The defendant No.1 executed and delivered the mortgage confirmation dated 21.09.2017. Copies of title deeds and mortgage confirmations are annexed and marked as Annexure 'G'.

(iv) Applicant Bank inspected the unit on 18.08.2017 and made valuation of the land & building alongwith plant and machinery by its approved valuer and furnished the same to the applicant bank; copies of the same are annexed and marked as Annexure 'H-1' & 'H-2'.

3. The Defendants enjoyed and utilized the said credit facility by opening Account in Bank's Park Street Branch, 75C, Park Street, Kolkata – 700016. 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 31.12.2017. Considering the aforesaid default and violation of the terms and conditions of the credit facility, the applicant Bank was compelled to issue demand Notice dated 29.03.2018 upon the defendants No.1 & 2 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 29.03.2018 is annexed and marked as Annexure 'I'. Certified copies of Statement of Account along with Certificate under Bankers' Books Evidence Act, with interest calculation sheet and security details in 3(A) format, have been filed to show and prove the dues (Annexure 'J', 'K' & 'L'), and future interest *pendenti lite* on the said sum of Rs.37,97,035.00, till realization of the entire due in full, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

4. The notices / summons were sent to the Defendants No.1 & 2 by the Ld. DRT-3; and service of Notices / summons upon the Defendants by postal service has been successfully effected, such has been recorded vide Ld. Registrar's order dated 27.08.2019. The instant case has been transferred to DRT-2, Kolkata vide the Hon'ble Chairperson DRAT, Kolkata's direction / order dated 16.09.2019 vide Ld. Registrar, Kolkata DRT-3's Order dated 21.10.2019 and the same has been renumbered as T.A./306 of 2019 vide Ld. Registrar's order dated 29.10.2019. Applicant Bank has filed an affidavit of service dated 05.03.2024 and from the postal track consignment it reveals that service of summons have been successfully delivered to the defendant No.1 being the proprietor of the proprietorship firm, namely M/s Machpharma and the defendant No.2 became the guarantor of the said loan duly executing personal guarantee. 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 30.04.2024. Ld. Advocate of the applicant Bank has filed the written notes of arguments on dated 22.05.2024 and 28.10.2024 wherein the brief facts of the case as has been narrated in the original application.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Sri Ravi Shankar Narayan, Asstt. General Manager of Bank's Park Street Branch, 75C, Park Street, Kolkata – 700016 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 Sri Pratul Chandra Tiwary, Asstt. General Manager of Bank's Park Street Branch, Kolkata – 700016 on 27.08.2019, such has been recorded in Ld. Registrar's order dated 27.08.2019. The documents produced by the applicant Bank are exhibited and annexed as Exhibit 'A' to 'G'. I.A./1388 of 2019 along with put-up I.A./1058 of 2019 has been filed by the applicant bank for completion of service formalities and evidence-on-affidavit; since the completion of service formalities and evidence on affidavit on behalf of applicant Bank, both the I.A.s are hereby allowed and disposed of accordingly.

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 cash credit facility to the limit of Rs.1,50,00,000/- vide sanction letter dated 30.08.2017. Applicant Bank has proved the mortgaged immovable properties; morefully described in Schedule Annexure 'L' at page 151 and para 3A at page 7 & 8 of the original application.

7. On the point of limitation, Loan has been sanctioned on 30.08.2017; documents have been executed on 30.08.2017; original Application has been filed on 03.05.2018. 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 cash credit Account (inclusive of accrued interest and other charges as calculated upto 31.03.2018) for a sum of **Rs.37,97,035.00** (Rupees thirty seven lacs ninety seven thousand thirty five) as on 31.03.2018, 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 *pendenti lite* on the said sum, while in the Demand Promissory Note dated 30.06.2017 the rate of interest @ 10.20% per annum with monthly rests, has been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 10.20% per annum, with quarterly rests, from 01.04.2018, 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./306 of 2019 (arising out of O.A./330 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./306 of 2019 (arising out of O.A./330 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.37,97,035.00** (Rupees thirty seven lacs ninety seven thousand thirty five) due and payable, inclusive of interest and other charges as calculated upto 31.03.2018; and interest for the period *pendente lite* and future rate @ 10.20% per annum, with quarterly rests, from 01.04.2018, 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 properties; morefully described in Schedule Annexure 'L' at page 151 and para 3A at page 7 & 8 of the original application, as under –

③

"(i) Equitable Mortgage of the land measuring area about 4 cottah and 14 chittacks along with a structure situated at holding No.16/A, Arabinda Sarani by Lane, P.S.- Madhyamgram, Dist.- North 24-Parganas, within the local limits of Madhyamgram Municipality, Ward No.9 (formerly ward No.8), C.S. Dag No.438, Khatian No.1140, being plot No.635, J.L. No.43, R.S. No.6, Touzi No.146, Mouza – Udayrajpur, registered in the name of defendant No.1; And Equitable Mortgage was created by depositing of Title Deed being Deed No.04958 for the year 2006, registered at A.D.S.R., Barasat, North 24-Parganas and recorded in Book No.I, Volume No.168, Page No.369 to 383."

"(ii) Equitable mortgage of the land measuring area about 5 cottah and 1 chittack 40 sq.ft. along with a structure situated at holding No.101, Hemanta Basu Sarani, P.S.- Madhyamgram, Dist.- North 24-Parganas, within the local limits of Madhyamgram Municipality, Ward No.9 (formerly ward No.8), C.S. Dag No.436/1822, R.S. Khatian No.463, J.L. No.43, R.S. No.6, Touzi No.146, Mouza – Udayrajpur, registered in the name of defendants No.1 & 2; And Equitable Mortgage was created by depositing of Title Deed being Deed No.09456 for the year 2003, registered at A.R.A.- II, Calcutta and recorded in No.1, Volume No.1, Page No.1 to 18."

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./306 of 2019 (arising out of O.A./330 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 20^th day of December, 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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