INDIAN OVERSEAS BANK vs SRI SAIKAT CHATTERJEE on 29 April 2022

1. **Sri Saikat Chatterjee**, son of Santosh Kumar Chatterjee, 28/10, Barisha Purbo Para Road, P.O.- Thakurpukur, Kolkata – 700063.

..... Defendant

Counsel for parties:

For the Applicant Bank : Ms. Aparajita Ghosh & Ms. Sangeeta Ghosh; Amicus Legal Associates.

For the Defendants : *Ex-parte*.

**FINAL ORDER / JUDGMENT**

Delivered on 29.04.2022

The Applicant, Indian Overseas Bank, tendered this Application, being O.A. No.777 of 2018 on 04.01.2018 in the file of 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.21,96,002.40 (Rupees twenty one lakhs ninety six thousand two and paisa forty) is due and payable as on 31.08.2018 and further interest @ 13.80% per annum from 01.09.2018, 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 30.10.2019 and the same has been renumbered as T.A./ 362 of 2020 vide Ld. Registrar's order dated 20.06.2020.

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

(i) The defendant approached and applied to the Applicant Bank for availing the Credit facility in the nature of "Term Loan" in the month of May, 2015 for an amount of Rs.20,00,000/- for purchasing a JCB Tracked Excavator machine vide loan Application dated 11.05.2015; copy of said Application is annexed and marked as **Annexure "A"**. Upon relying on the Application made by the Defendant, the applicant Bank was pleased to sanction / grant a Term Loan in the nature of "Small Loan NOCGC" for an amount of Rs.20,00,000/- (Rupees twenty lakhs) to the defendant vide credit sanction advice dated 12.05.2015 against the hypothecation of defendant/s vehicle (JCB Tracked Excavator machine) . The defendant signed and acknowledged the receipt of the credit sanction advice and thereby accepting the terms and conditions mentioned therein. Copy of said duly accepted credit sanction advice dated 12.05.2015 is hereto annexed and marked as **Annexure "B"**. The defendant availed the the said credit facility under CGTMSE Guarantee scheme.

(ii) In consideration of granting the said Term Loan to Defendant in May, 2015, the following security documents were executed by the defendant on 12.05.2015 in favour of Applicant Bank:

1. (a) Demand Promissory Note for Rs.20,00,000/-;

2. (b) Undertaking duly signed and executed by defendant for an amount of Rs.20,00,000/- and the said loan was to be repaid in 60 equal monthly installments of Rs.44,489/- each commencing from 31.07.2015.

3. (c) Letter of authorization duly signed by Defendant and duly authorizing the Applicant to recover the installments and interest due thereon from the savings bank account of Defendant with the Applicant Branch until the loan is completely liquidated. That the defendant further authorizes the Applicant Bank to credit the proceeds of the loan to the savings Bank account of Defendant with Applicant Bank;

4. (d) Deed of Hypothecation for Rs.20,00,000/-;

5. (e) Agreement of Term Loan and Hypothecation for Rs.20,00,000/-.

Copy of said documents are annexed herewith and marked as Annexure 'C-1' to 'C-5'.

(iii) That the defendant again approached the Applicant for availing the Credit facility in the nature of "Term Loan" in the month of May, 2015 for an amount of Rs.5,00,000/- for purchasing a Mahindra Bolero Pick up; copy of loan application dated 19.05.2015 is annexed hereto and marked as **Annexure 'D'**. Upon consideration of the loan Application made by the Defendant, the applicant Bank was pleased to grant / sanction the Term Loan in the nature of "Small Loan NOCGC" for an amount of Rs.5,00,000/- (Rupees five lakhs) to the defendant vide credit sanction advice dated 22.05.2015 against the hypothecation of defendant's vehicle to be purchased. Copy of said duly accepted credit sanction advice dated 22.05.2015 is annexed and marked as **Annexure 'E'**.

(iv) To secure the due repayment of second Term Loan of Rs.5.00 lakhs granted to the defendant, the defendant executed the following security documents on 22.05.2015 in favour of the Applicant Bank:

1. (a) Demand Promissory Note for Rs.5,00,000/-;

2. (b) Undertaking of Defendant/Borrower for Rs.5,00,000/- that the said loan to be repaid in 60 equal monthly installments of Rs.11,072/- commencing from 31.7.2015.

3. (c) Letter of Authorization duly signed by Defendant and duly authorizing the Applicant Bank;

4. (d) Deed of Hypothecation duly signed and executed by the defendant for the amount of Rs.5,00,000/-;

5. (e) Agreement of Term Loan and Hypothecation duly signed and executed by the defendant for the amount of Rs.5,00,000/-.

Copy of said documents are annexed and marked as Annexure 'F-1' to 'F-5'.

(v) That the defendant registered the financed vehicle with R.T.O. Alipore on 25.06.2015 with the endorsement that the said vehicle is hypothecated to applicant Bank. Copy of which is annexed and marked as Annexure 'G'.

(vi) The Defendant duly signed and executed Revival Letters dated 16.01.2018 and 20.01.2018 thereby acknowledging the indebtedness and liabilities with interest thereon towards the credit facilities sanctioned to defendant by the Applicant Bank. Copy of Revival Letters dated 16.01.2018 & 20.01.2018 is annexed and marked as **Annexure 'H'**.

3. The Defendant availed and enjoyed the aforesaid Credit facilities by opening Accounts in Applicant Bank's Lake Town Branch, 850, Lake Town, Kolkata – 700089.. The sanctioned loan amounts have been disbursed to the defendant / borrower's loan Accounts. However, the defendant failed and neglected to abide by the terms and conditions of the facilities. The Defendant did not repay the agreed EMIs and overdue interests in the loan Accounts. Inspite of repeated requests and personal contact made by the Applicant Bank, the defendant failed to regularize the loan Accounts. The Account became irregular and was classified as N.P.A. on 31.12.2017. Applicant Bank finding no other alternative issued recall, Demand Notice dated 11.07.2018 upon the Defendant calling upon him to repay the entire dues amounting to Rs.21,51,924.40 as on 30.06.2018, but the defendant did not comply the Notice, copy of said Notice dated 11.07.2018 is annexed and marked as Annexure 'I'. Certified copies of Statements of Accounts along with Certificate under Bankers' Books Evidence Act, with statement of claim (Annexure 'J' & 'K'), have been filed to show and prove the dues and future interest @ 13.80% per annum with monthly rests, till realization, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

4. The Notice / summons was sent to the sole Defendant by the Tribunal; service of Notice / summons upon the sole Defendant has been successfully completed by postal serice, such has been recorded in Ld. Registrar's order dated 26.06.2019. 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 30.10.2019 and the same has been renumbered as T.A./ 362 of 2020 vide Ld. Registrar's order dated 20.06.2020. Despite service, the defendant did not appear nor filed the written statement; hence, the defendant was ordered to be proceeded *ex-parte* vide order dated 21.03.2022. Ld. Counsel for applicant Bank has submitted argument on 21.03.2022. Applicant Bank has filed the written notes of arguments on 21.03.2022. Despite liberty granted to the defendant to file written notes of arguments vide order dated 21.03.2022, the defendant has not filed the written notes of arguments.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Mr. Rajesh Kumar, Manager of Applicant Bank's Lake Town Branch, 850 Lake Town, Block – 'A', Kolkata – 700089 along with the original documents executed by the Defendant. Original documents have been produced by the Applicant Bank, and the same have been verified with copies of the documents annexed with O.A. and the original documents have been returned to Mr. Rajesh Kumar, Mānager of Applicant Bank's Lake Town Branch, 850 Lake Town, Block – 'A', Kolkata – 700089 on 26.06.2019, such has been recorded in the Ld. Registrar-in-Charge's order dated 26.06.2019. The document produced by the Applicant Bank are exhibited and annexed at 'A-1' to 'A-17'.

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 Mr. Rajesh Kumar, Manager of Applicant Bank's Lake Town Branch, 850 Lake Town, Block – 'A', Kolkata – 700089 on 26.06.2019). Applicant Bank has corroborated the averments made in T.A./362 of 2020 (arising out of O.A/777 of 2018 DRT – 3). Applicant Bank has proved the sanction of Term Loan of Rs.20.00 lakhs and Rs.5.00 lakhs, aggregating to Rs.25.00 lakhs).

Applicant Bank has proved the hypothecated movable assets (vehicles), described in Schedule – 'A' & Schedule – 'B' at page 23 & 24 of the original application.

7. Applicant Bank submits that Bank has received claim under CGTMSE Guarantee Scheme for Rs.8,19,357/- towards term Loan Account being A/c No.223903311500002 and Rs.2,60,354/- towards another Term Loan being A/c No.223903311500003 and the same has been given credit in the loan Account. The said aggregate amount of Rs.10,79,711/- has to be refunded back to CGTMSE on making recovery of the claim amount from defendant as per the terms & conditions of CGTMSE Guarantee Scheme.

8. Evidence-on-affidavit, filed by Applicant Bank, has remained unchallenged, un-rebutted and its veracity cannot be put to dispute. Applicant Bank has proved the averments made in the T.A. / O.A.

9. Applicant Bank has filed the Statements of Accounts certified under Banker's Books Evidence Act. Applicant Bank stated that the aggregate sum of outstanding balances in Term Loan Accounts (inclusive of accrued and unapplied interests calculated upto 20.06.2013) is **Rs.21,96,002.40** (Rupees twenty one lakhs ninety six thousand two and paisa forty) as on 31.08.2018, 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. I allow the claim as made by the applicant Bank in the original Application. Applicant Bank has prayed future interest @ 13.80% per annum, while in the D.P. Note dated 12.05.2015 the rate of interest @ 12% per annum with monthly rests and in the D.P. Note dated 22.05.2015 the rate of interest @ 11.80% per annum with monthly rests, have been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest which has been agreed between the Applicant Bank and Defendant i.e. @ 12% per annum, simple from 01.09.2018, is allowed.

10. On the point of limitation, Loan has been sanctioned on 12.05.2015 & 22.05.2015, documents have been executed on 12.05.2015 & 22.05.2015; and original Application has been filed on 04.10.2018. Moreover, the Defendant executed two Revival Letters dated 16.01.2018 & 20.01.2018 thereby confirming and acknowledging his debt & liabilities in the Loan Accounts. As such, the original Application appears to have been filed well within the period of limitation.

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. The T.A. being T.A./362 of 2020 (arising out of O.A./777 of 2018 – DRT-3/Kol) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A./362 of 2020 (arising out of O.A./777 of 2018 – DRT-3) 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 hereby directed to pay the total debt amount of **Rs.21,96,002.40** (Rupees twenty one lakhs ninety six thousand two and paisa forty) due and payable, inclusive of interest and other charges as calculated upto 31.08.2018; and interest for the period *pendente lite* and future @ 12% per annum with effect from 01.09.2018, simple, 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 the Original Application, the same may be taken into account while arriving at the exact amount of dues/debt payable by the Defendant. Accordingly, the *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 hypothecated movable assets, described in Schedule – 'A' & Schedule – 'B' at page 23 & 24 of the original Application.

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

(iv) The Defendant is hereby 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 specified 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 sole Defendant 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 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./362 of 2020 (arising out of O.A./777 of 2018 – DRT-3) 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 the 29^th day of April, 2022 in the presence of Ld. Counsel, Ms. Sangeeta Ghosh.

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

Sd/-

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