STATE BANK OF INDIA vs SRI SAMIR KUMAR HALDER on 11 March 2022

1. **Sri Samir Kumar Halder**, residing at 4/45. Vidwasagar, P.O.- Naktala, Kolkata – 700047, and at Flat No.7, 4^th Floor, KMC premises No.255/70, N.S.C. Bose Road, (mailing address) 2/35, Naktala Scheme-II, P.O.- Naktala, P.S.- Jadavpur, Kolkata – 700047.

..... Defendants

Counsel for parties:

For the Applicant Bank

: Mr. Anirban Pramanick

For the Defendants

: *Ex parte*.

**FINAL ORDER / JUDGMENT**

Delivered on 11.03.2022

The Applicant, State Bank of India, tendered this Application being O.A. No.173 of 2018 on 14.03.2018 filed in DRT-3, Kolkata against sole defendant under Section 19 of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of a sum of Rs.35,21,955.00 (Rupees thirty five lakhs twenty one thousand nine hundred fifty five) is due and payable as on 05.12.2017 and further interest @ 18% per annum from 06.12.2017, till realization in full and costs etc. 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./ 111 of 2019 vide Ld. Registrar's order dated 02.11.2019.

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

(i) The sole defendant is the borrower had approached and applied to State Bank of Bikaner & Jaipur's (SBBJ) Jodhpur Park Branch, Kolkata on 18.08.2013 which has now merged into State Bank of India as per Gazette of India Notification dated 22.02.2017 for house building loan of Rs.25,00,000/-; upon consideration of the application, applicant Bank was pleased to grant / sanction a Housing Term Loan of Rs.25,00,000.- (Rupees twenty five lakhs) to the defendant company, vide Arrangement Letter dated 27.08.2013, copy of letter of Arrangement is annexed and marked as Annexure 'A'. At the relevant point of time, the rate of interest was @ 10.40% per annum and the primary and exclusive charge by way of equitable mortgage of one self-contained residential flat. The said Term Loan was to be repaid in 240 monthly installments (EMIs) of Rs.24,792/- each. Copy of loan application dated 18.08.2013 and Letter of Arrangement dated 27.08.2013 are annexed and marked as Annexure A' & 'B' respectively.

(ii) In respect of the aforesaid housing loan facility of Rs.25.00 lakhs, the defendant had executed the following security documents on 27.08.2013 in favour of applicant Bank:

- (a) Memorandum of Term Loan Agreement for housing loan;

- (b) Letter of consent and agreement to mortgage;

- (c) Affidavit.

Copy of said documents are annexed and marked as Annexure 'C', 'D' & 'E' respectively.

(iii) Again, the defendant had applied on 28.11.2015 before State Bank of Bikaner & Jaipur (SBBJ), Jodhpur Park Branch, Kolkata for another personal loan of Rs.8,00,000/-; upon replying on the application, the applicant Bank was pleased to grant / sanction another term Loan of Rs.8,00,000/- (Rupees eight lakhs) under SBBJ Home Cash Scheme to the defendant vide Arrangement Letter dated 30.11.2015. At the relevant point of time, the effective rate of interest was @ 10.95% per annum with monthly rests, and the said loan of Rs.8.00 lakhs was to be repaid in 120 monthly installments (EMIs) of Rs.10,998/- each. The primary security of the said term loan is the extension of mortgage of one self-contained residential flat. Copy of loan application dated 28.11.2015 and Letter of Arrangement dated 30.11.2015 are annexed and marked as Annexure F' & 'G' respectively.

(iv) In respect of the said term loan facility of Rs.8.00 lakhs, the defendant had executed the following security documents on 30.11.2015 in favour of applicant Bank:

- (a) Memorandum of Loan Agreement for personal loan.

Copy of said document is annexed and marked as Annexure 'H'.

(v) The defendant had executed a Revival Letter dated 25.07.2016 in favour of applicant Bank confirming the outstanding debit balance in the loan Account; copy of which is annexed and marked as Annexure 'I'.

(vi) For the purpose of securing the repayment of such loans / advances, the defendant created equitable mortgage in respect of his immovable property(s), described in 'Schedule of the Mortgaged Property' at page 16 of the O.A., by depositing original Title Deed(s) with the applicant Bank. To that effect, the defendant signed and delivered a letter dated 10.09.2015 confirming deposit of title deed(s) in favour of applicant Bank. Copy of letter confirming deposit of title deed is annexed and marked as Annexure 'J'; and copy of Deed of Conveyance being No.07049 for the year 2013 registered before the Addl. District Sub-Registrar, alipore, 24-Parganas (South) and copy of valuation report dated 26.11.2015 of the said property are annexed and marked as 'K' & 'L' respectively.

3. The Defendant enjoyed the aforesaid credit facilities by opening Accounts in Applicant Bank's Jodhpur Park Branch, Kolkata represented by SARB, South Bengal, Jeevan Deep Bldg., Kolkata – 700071. However, the defendant failed and neglected to abide by the agreed terms and conditions of the facilities. The Defendant did not repay the agreed EMIs and overdue interests in loan Accounts. In spite of several reminders and requests made by the Bank, the defendant failed to regularize the loan Accounts. Since the defendant did not pay any attention to regularize the Account(s), the Accounts became irregular and was classified as N.P.A. on 06.02.2017. Applicant Bank was compelled to issue a legal Notice dated 17.02.2018 upon the Defendant through it's Advocate that has been duly received by the defendant demanding payment of outstanding loan amount of Rs.35,21,955.00, but the defendant did not comply the Notice, copy of said Notice along with postal receipts and undelivered packet are annexed and marked as Annexure 'N'. Certified copies of Statements of Accounts along with Certificate under Bankers' Books Evidence Act, with Interest calculation sheet, have been filed to show and prove the dues (Annexure 'M'), and further interest @ 18% per annum, till realization, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

4. The Notices / summons were sent to the sole Defendant by the Tribunal; service of Notice / summons upon the Defendant has been successfully effected. An I.A. being I.A./217 of 2020 dated 26.10.2020 praying for attachment of the mortgaged property and for appointment of receiver for the purpose of making inventory and for taking physical possession of the mortgaged property after service of the copy of the same upon the defendant, such has been recorded vide Ld. Registrar's order dated 16.11.2020. The said I.A. was allowed and disposed of vide order dated 17.11.2021 with the direction to appoint an Advocate Commissioner to inspect and inventory of the subject property, in question, and file a Report and defendant was directed to file objection to the said I.A. In compliance of the order dated 17.11.2021, Ld. Receiver / Advocate Commissioner has filed a detailed report on 15.12.2020, such has been recorded vide Ld. Registrar's order dated 16.12.2020. However, despite service and granted opportunity, the defendant did not appear nor filed the written statement; hence, the sole defendant was ordered to be proceeded *ex-parte* vide order dated 14.12.2021. Both the parties were at liberty to file written notes of arguments within 15 days vide order dated 14.12.2021, but the defendant did not appear nor filed written notes of arguments. Ld. Counsel for applicant Bank has submitted arguments on 14.12.2021. In accordance with the liberty 4TA/111 of 2019/DRT-2/KO

granted by the Tribunal vide order dated 14.12.2021, Applicant Bank has filed the written notes of arguments on 31.12.2021.

5. Applicant Bank has filed the evidence-on-affidavit & NPA Affidavit affirmed by Mr. Munir Mahammad, City Case Officer of Applicant Bank's Stressed Assets Recovery Branch (SARB), South Bengal, Jeevan Deep Bldg., 1, Middleton Street, Kolkata – 700071 along with the original documents executed by the Defendants. Original documents have been produced by the Applicant Bank; the same have been verified with the true certified copies of documents annexed with O.A. and the original documents have been returned to Shri Abhijit Naskar, Chief Manager, Stressed Assets Recovery Branch (SARB), South Bengal, Jeevan Deep Bldg., 1, Middleton Street, Kolkata – 700071 on 21.01.2020, such has been recorded in Ld. Registrar's order dated 21.01.2020. The documents produced by the Applicant Bank are exhibited and annexed at Exhibit 'AW-1' to 'AW-14'.

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

6. Evidence-on-affidavit filed by the Applicant Bank is supported by the copies of documents (original documents verified by the Registry and returned to Shri Abhijit Naskar, Chief Manager, Stressed Assets Recovery Branch (SARB), South Bengal, Jeevan Deep Bldg., 1, Middleton Street, Kolkata – 700071 on 21.01.2020). Applicant Bank has corroborated the averments made in the T.A./111 of 2019 (arising out of O.A./173 of 2018 – DRT-3/Kol). Applicant Bank has proved the sanction of Housing / Term Loan facility of Rs.25,00,000/- and another Term Loan of Rs.8,00,000/-.

Applicant Bank has proved the mortgaged immovable property(s) remain as mortgaged, described in 'Schedule of the Mortgage Property' at Page 16 of the T.A./O.A. The defendant has confirmed the creation of mortgage by deposit of title deed(s) by delivering letter dated 10.09.2015 in favour of applicant Bank.

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

8. Applicant Bank has filed Statements of Accounts certified under Banker's Books Evidence Act. Applicant Bank has stated that the outstanding balance in Loan Accounts as under:

Housing Loan Account No.61199227099:

<table> <tbody> <tr> <td>Outstanding balance as on 05.12.2017<br/>(Interest calculated upto 06.02.2017)<br/>Unapplied interest from 07.02.2017<br/>to 05.12.2017)</td> <td>: Rs.24,12,146.90</td> </tr> <tr> <td>Add : Penal Interest</td> <td>: Rs. 2,34,714.10<br/>: <u>Rs. 2,743.00</u></td> </tr> <tr> <td></td> <td>Rs.26,49,604.00</td> </tr> </tbody> </table>

Term Loan Account No.61298760239:

<table> <tbody> <tr> <td>Outstanding balance as on 05.12.2017<br/>(Interest calculated upto 06.02.2017)<br/>Unapplied interest from 07.02.2017<br/>to 05.12.2017)</td> <td>: Rs. 7,68,272.58</td> </tr> <tr> <td>Add : Penal Interest</td> <td>: Rs. 1,02,596.42<br/>: <u>Rs. 1,482.00</u></td> </tr> <tr> <td></td> <td><u>Rs. 8,72,351.00</u></td> </tr> <tr> <td>Total :</td> <td><b><u>Rs.35,21,955.00</u></b></td> </tr> </tbody> </table>

(Rupees thirty five lakhs twenty one thousand nine hundred fifty five) as on 05.12.2017, which is the amount claimed by the applicant Bank in the original Application, and the sole defendant is liable to repay the said amount to the applicant Bank with *pendente lite* and future interest, till realization. Applicant Bank has prayed future interest @ 18% per annum, while in the Letter of Arrangement dated 27.08.2013 the rate of interest @ 10.40% per annum and Letter of Arrangement dated 30.11.2015 the rate of interest @ 10.95% per annum, have been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest which has been agreed between the applicant Bank and the defendants i.e. @ 10.40% per annum, simple from 06.12.2017, is allowed.

9. On the point of limitation, Loan has been sanctioned on 27.08.2013 & 30.11.2015; the documents have been executed on 27.08.2013 & 30.11.2015; and the original Application has been filed on 14.03.2018. Moreover, it is observed that the defendant signed and delivered a Revival Letter dated 25.07.2016 in favour of applicant Bank confirming the outstanding debit balance in loan Accounts. As such, the original Application appears to have been filed well within the period of limitation.

10. The matter also falls within the territorial as well as pecuniary jurisdiction of this Tribunal. The Applicant Bank has proved the claim made in the original Application. The original application being T.A. No.111 of 2019 (arising out of O.A./173 of 2018 – DRT-3/Kol) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A. No.111 of 2019 (arising out of O.A./173 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 directed to pay the total debt amount of **Rs.35,21,955.00** (Rupees thirty five lakhs twenty one thousand nine hundred fifty five) due and payable, inclusive of interest and other charges as calculated upto 05.12.2017; and interest for the period *pendente lite* and future @ 10.40% per annum with monthly rests from 06.12.2017, till realization of the entire sum due and recoverable.

(ii) Amount, if any, paid by the defendant in the loan account or amount 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, *pendente lite* and future interest shall be calculated on the reduced amount.

(iii) The defendant is debarred from transferring, alienating, encumbering or disposing of the mortgaged immovable property(s), described in 'Schedule of the Mortgaged Property' at page 16 of the Original Application.

The defendant is also debarred from transferring, alienating, encumbering or disposing any other property(s) and assets belonging to him till the aforesaid adjudicated debt amount are recovered from the defendant.

TA/111 of 2019/DRT-2/KOL

(iv) The defendant is given a time of thirty 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 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 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. No.111 of 2019 (arising out of O.A./173 of 2018), is allowed and stands disposed of.**

File be consigned to Record room.

This order is dictated and corrected by the undersigned and pronounced on this day the 11^th day of March, 2022.

This order is passed by virtual hearing through video conference in the presence of Ld. Counsel for the Applicant Bank, Mr. Anirban Pramanick. None appeared for the defendants.

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

Sd/-

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