UNION BANK OF INDIA vs SRI SUJIT BISWAS AND ANR on 25 February 2022

1. 1. Sri Sujit Biswas, Son of Late Krishna Chandra Biswas, having its residence at Adarsha Pally, Manikdanga Road, P.O.- Ghola Bazar, Sodepur, Kolkata – 700111, West Bengal.

2. 2. Smt. Supriya Biswas, wife of Sri Sujit Biswas, having its residence at Adarsha pally, Manikdanga Road, P.O.- Ghola Bazar, Sodepur, Kolkata – 700111, West Bengal.

..... Defendants

Counsel for parties:

For the Applicant Bank

: Ms. Smruti Rekha Mishra

For the Defendants

: *Ex parte.*

FINAL ORDER / JUDGMENT

Delivered on 25.02.2022

Applicant (Union Bank of India) erstwhile Corporation Bank tendered this Application being O.A. No.66 of 2018 on 25.01.2018 filed on the file of DRT-3, Kolkata against two defendants under Section 19 of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of a sum of Rs.17,18,595.00 (Rupees seventeen lakhs eighteen thousand five hundred ninety five) together with further interest @ 9.65% per annum with monthly rests, 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 in Ld. Registrar, Kolkata DRT-3's Order dated 17.10.2019 and the same has been renumbered as T.A./74 of 2019 vide Ld. Registrar's order dated 26.10.2019.

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

3. In accordance with the Notice dated 30.07.2020 of this Tribunal, Ld. Counsel for Applicant Bank has filed a petition being I.A./430 of 2021 dated 24.03.2021 praying for amendment of Cause Title in view of amalgamation of Corporation Bank with Union Bank of India 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. Counsel for Applicant Bank on 12.04.2021, such has been recorded in Ld. Registrar-in-Charge's order dated 12.04.2021.

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 the borrower and the defendant No.2 is the co-borrower. The defendants No.1 & 2 approached and applied to the applicant Bank vide application dated 03.09.2013. At the request of the Defendant Nos.1 & 2, Applicant Bank was pleased to grant / sanction Home / Term Loan to the extent of Rs.17,50,000.00 (Rupees seventeen lakhs fifty thousand) in favour of Defendant Nos.1 & 2, vide sanction letter dated 05.10.2013 against the equitable mortgage of immovable property and the terms & conditions are mentioned in Sanction Communication dated 05.10.2013 was duly accepted and acknowledged by the defendants herein. Copy of the aforesaid application dated 03.09.2013 and Sanction letter dated 05.10.2013 are annexed and marked as Annexure "A-1" and "A-2" respectively.

(ii) That in acknowledgement of granting the said Home loan with the limit of Rs.17.50 lakhs, the defendants duly executed and/or delivered, *inter-alia*, the following security documents in favour of the Applicant Bank, as under :

1. 1) Agreement for Terms Loans (Housing) dated 18.11.2013;

2. 2) Irrevocable General Power of Attorney dated 18.11.2013;

3. 3) Affidavit dated 19.11.2013;

4. 4) General Power of Attorney dated 19.11.2013;

5. 5) Undertaking letter to be obtained from the borrower dated 18.11.2013; 3TA/24of 2019/DRT-2/KOL

6) Letter of Undertaking dated 18.11.20213.

Copies of the aforesaid documents are annexed and marked as Annexure-'A-3' to 'A-8'.

(iii) To secure the said housing loan facility, the defendants No.1 & 2 created equitable mortgage in respect of their immovable property(s); described in Schedule X-1 at page 25 of the O.A., by depositing title deed(s) being No.10813 for the year 2013 with the applicant Bank, stand in the name of Sri Sujit Biswas and Smt. Supriya Chakraborty. Copy of original Deed along with an undertaking are annexed as Annexure 'A-9'. Further, the defendants No.1 & 2 duly confirmed equitable mortgage of immovable property being no.10813 for the year 2013 and executed and confirmed vide Memorandum of Deposit of Title Deed dated 18.11.2013 and letter from the borrower dated 18.11.2013 in favour of the Applicant Bank and further the said property has been valued by the Empanelled Valuer vide valuation report dated 30.03.2017. Copies of the aforesaid documents are annexed and marked as Annexure 'A-10', 'A-11' & 'A-12' respectively.

(iv) Further in consideration of the Applicant's granting and/or continuing to grant the aforesaid housing loan facility to the Defendants Nos.1 & 2, the defendants No.1 & 2 duly executed and delivered one Revival letter (SME-11) dated 07.10.2016 in favour off Applicant Bank confirming the outstanding debit balance in the Account, copy of the same is annexed and marked as Annexure 'A-13'.

(v) Applicant states that the aforesaid housing loan were granted against mortgage of immovable property in favour of defendant no. 1 which was repayable on demand at the rate of housing loan is 9.65% per annum from the date of disbursement of money to the date of payment in full with monthly rests or at such rate or rates as may be revised by the bank from time to time.

5. The Defendants availed and enjoyed the credit facility by opening an Account in erstwhile Applicant Bank's Jugberia Branch, Vill & P.O.- Jugberia, Dist.- 24 Parganas. Applicant Bank had been disbursed the sanctioned Term Loan to the Defendants No.1 & 2's concerned loan Account. However, the Defendants failed and neglected to comply with the agreed terms and conditions of loan / facilities. They did not pay the agreed EMIs and overdue interests in the loan Account. Inspite of repeated requests made by the applicant Bank, the defendants did not adhere to the terms and conditions of the said facilities and did not pay any attention to regularize the Account. Since the defendants failed and neglected to repay the outstanding Bank's dues despite repeated requests and demand, Account became irregular and was classified as NPA on 28.02.2017. Considering aforesaid default and violation of the terms & conditions thereof, Applicant Bank issued a Notice dated 18.01.2018 upon the defendants through their Advocate requesting them to repay the outstanding Bank's dues and regularize the Account, but despite receipt of the Notice the defendants failed to repay the Bank's dues, copy of the Notice dated 18.01.2018 is annexed and marked as Annexure 'A-14'. Certified copies of Statements of Account along with Certificate under Bankers' Books Evidence Act, with Interest calculation sheet (Annexure - A-15'), have been filed to show and prove the dues, and future interest @ 9.65% per annum with monthly rests, till realization, 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 Ld. DRT-3; and service of summons / notices upon the defendants No.1 & 2 could not be effected by postal service, such has been recorded vide Ld. Registrar's order dated 27.02.2019. 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 in Ld. Registrar, Kolkata DRT-3's Order dated 17.10.2019 and the same has been renumbered as T.A./ 74 of 2019 vide Ld. Registrar's order dated 26.10.2019. Ld. Counsel for Applicant Bank has filed a petition being I.A./430 of 2021 dated 24.03.2021 praying for amendment of Cause Title in view of amalgamation of Corporation Bank with Union Bank of India 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. Counsel for Applicant Bank on 12.04.2021. The notices / summons were sent to the defendants by Ld. DRT-2 and service of summons were made successful by postal service, such has been recorded vide order dated 01.02.2022. Despite service, the defendants did not appear nor filed the written statement; hence, both the defendants were ordered to be proceeded *ex-parte* vide order dated 01.02.2022. Ld. Counsel for applicant Bank has submitted arguments on 01.02.2022. Applicant Bank has filed the notes of arguments on 03.02.2022. Despite liberty granted by the Tribunal vide order dated 01.02.2022, no written notes of argument has been filed by the Defendants.

7. Evidence-on-affidavit, filed by the Applicant Bank has been affirmed by Md. Shadab Halim, Chief Manager of Bank's Jugberia Branch, Village & P.O.- Jugberia, Boargarh, New Loknath Ashram, Dist.- North 24-Parganas, Pin - 700110 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 documents annexed with the O.A. and the originals have been returned to Mr. Utal Prasad, Manager of Applicant Bank's Jugberia Branch, Village & P.O.- Jugberia, Boargarh, New Loknath Ashram, Dist.- North 24-Parganas on 23.03.2021, such has been recorded in Ld. Registrar's Order dated

23.03.2021. The documents produced by the Applicant Bank are exhibited and marked as Exhibits 'A-1' to 'A-15'.

I have heard the Ld. Counsel for the Applicant Bank and perused the records.

8. Evidence-on-affidavit filed by the Applicant Bank is supported by the copies of documents (original documents verified by the Registry and returned to Mr. Utal Prasad, Manager of Applicant Bank's Jugberia Branch, Village & P.O.- Jugberia, Boargarh, New Loknath Ashram, Dist.- North 24-Parganas on 23.03.2021). Applicant Bank has corroborated the averments made in the O.A. / T.A. Applicant Bank has proved the sanction of Home Loan of Rs.17.50 lakhs.

Applicant Bank has proved the mortgaged immovable property(s) remain as mortgaged; described in 'Schedule X-1' annexed at Page 25 of the O.A./T.A.

9. Evidence-on-affidavit, filed by the Applicant Bank, has remained unchallenged, unrebutted and its veracity cannot be put to dispute. Applicant Bank has proved the averments made in the original Application.

10. Applicant Bank has filed Statement of Account certified under Banker's Books Evidence Act. Applicant Bank stated that the outstanding balance in Housing / Term Account (inclusive of accrued and unapplied interests calculated upto 16.01.2018) is Rs.17,18,595.00 (Rupees seventeen lakhs eighteen thousand five hundred ninety five) as on 16.01.2018, 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 @ 9.65% per annum with monthly rests, while in the sanction letter dated 05.10.2013 the rate of interest @ 10.25% per annum, has been mentioned. Therefore, the *pendente lite* & future rate of interest which has been claimed by the applicant Bank, i.e. @ 9.65% per annum, simple from 17.01.2018, is allowed.

11. On the point of limitation, Loan has been sanctioned on 05.10.2013, documents have been executed on 18.11.2013, Account became NPA on 28.02.2017, and original Application has been filed on 18.01.2018. It is observed that the defendants No.1 & 2 duly admitted their debt & liabilities by executing letter of 'Acknowledgement of Debt / Liability' dated 07.10.2016 in favour off Applicant Bank confirming the outstanding debit balance in the Account. As such, the original Application appears to have been filed well within the period of limitation.

12. The matter falls within the territorial as well as pecuniary jurisdiction of this Tribunal. The Applicant Bank has proved its claim made in the O.A./T.A. The T.A. being T.A.74 of 2019 arising out of O.A. No.66 of 2018 deserves to be allowed; hence allowed.

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

ORDER

(i) T.A. No.74 of 2019 (arising out of O.A. No.66 of 2018 – DRT-3/Kol) 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.17,18,595.00 (Rupees seventeen lakhs eighteen thousand five hundred ninety five), inclusive of interest and other charges as calculated upto 16.01.2018; and future interest for the period *pendente lite* @ 9.65% per annum with effect from 17.01.2018, simple, 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 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) Defendants No.1 & 2 are debarred from transferring, alienating, encumbering and/or disposing of the mortgaged immovable property(s), described in 'Schedule – X-1' at page 25 of the original Application.

The Defendants No.1 & 2 are also debarred from transferring, alienating, encumbering or disposing of any other property(s) and assets belonging to them, either movable and/or immovable, till the aforesaid adjudicated debt amount are recovered from the Defendants.

(iv) The Defendants No.1 & 2 are given a time of thirty 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 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 / Registrar-in-Charge forthwith in terms of Final Order / Judgment for issuance of the same against the Defendants No.1 & 2 in favour of the 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. No.74 of 2019 (arising out of O.A./66 of 2018 – DRT-3) is allowed and stands disposed of.

This order is dictated and corrected by the undersigned and pronounced on this day the 25^th day of February, 2022.

File be consigned to Record room.

This order is passed by virtual hearing through video conference and none appeared for the parties.

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

Sd/-

(Makena Srinivasa Rao) Presiding Officer DRT-2, Kolkata

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