STATE BANK OF INDIA vs FIRDAS ALAM on 6 June 2022

1. **Mr. Firdaus Alam**, son of Mahfooz Alam, Proprietor of : M/s Honey Buney Butta On Factory of T-249/A, Mithatalab Bartala, S.O.- South Garden, Kolkata – 700018.

.....Defendant

Counsel for the parties :

<table border="0"> <tr> <td>For the Applicant Bank</td> <td>:</td> <td>Ms. Gunja Pachisia &amp; Md. Minhazuddin.</td> </tr> <tr> <td>For the Defendant</td> <td>:</td> <td><i>Ex-parte.</i></td> </tr> </table>

**FINAL ORDER / JUDGMENT** Delivered on 06.06.2022

Applicant, State Bank of India has instituted the Original Application being O.A. No.727 of 2018 on 03.09.2018 on the file of Kolkata DRT-3 against sole Defendant under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.11,23,083.00 (Rupees eleven lakhs twenty three thousand eighty three) together with further interest @ 12.70% per annum, till realization and costs of the O.A. 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./ 379 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 are that –

(i) the loan was originally sanctioned and disbursed from the Rajarhat Branch of State Bank of Travancore and after the merger notification dated 22.02.2017 the State Bank of Travancore has merged with State Bank of India. The defendant approached and applied to the applicant Bank for financial assistance; upon considering the Loan Application, applicant Bank pleased to grant / sanction a Term Loan of Rs.10,00,000/- (Rupees ten lakhs) in favour of the defendant vide letter of arrangement dated 08.09.2016; copy of letter of arrangement is annexed and marked as Annexure 'A-1'. The defendant duly agreed and accepted the terms and conditions of the said sanction by putting his signature.

(ii) In order to obtain the aforesaid credit facility, the defendant duly signed and executed one Hypothecated cum Working Capital Agreement dated 08.09.2016; copy of said document is annexed and marked as Annexure 'A-2'.

3. The Defendant availed the aforementioned credit facilities by opening Account in Applicant Bank's Rajarhat Branch, Swagat Chinar Complex, Block-'A'. Rajarhat Expressway, Kolkata – 700157. The sanctioned loan amount has been disbursed to the borrower's Loan Account. However, the Defendant failed and neglected to comply with the terms and conditions of the agreed of loan / facilities. He did not pay the agreed EMIs and did not pay the overdue interests in loan Account. Account became out of order and were classified as NPA on 28.11.2017. Since the Account of the defendant had been running irregular for quite some time despite several requests and reminders, the applicant Bank finding no alternative issued a legal Notice dated 07.08.2018 to the defendant through its Advocate demanding to repay the outstanding dues, but the defendant did not comply the notice; copy of said notice is annexed and marked as Annexure 'A-3'. Certified copies of Statement of Account along with Certificate under Bankers' Books Evidence Act, with interest calculation sheets, (Annexure 'A-4'), have been filed to show and prove the dues, and future interest @ 12.70% per annum, till realization, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

4. The Notices / summons was sent to the sole Defendant by the Tribunal, and service of Notice / summons upon the Defendant was completed by postal service on 03.05.2021, such has been recorded vide Ld. Registrar-in-charge's order dated 23.12.2021. Despite service, the defendant did not appear nor filed written statement; hence, the sole defendant was ordered to be proceeded *ex-parte* vide order dated 08.03.2022. Ld. Counsel for Applicant Bank submitted arguments on 05.05.2022.

5. Applicant Bank has filed Evidence-on-affidavit, affirmed by Sri Diptendu Kumar Rakshit, Dy. Manager of Applicant Bank's S.M.E. Centre Kolkata, 1, Strand Road, 4^th Floor, Kolkata – 700001 along with the original documents executed by the parties. Original documents have been produced by the Applicant Bank; the same have been verified with copies of the documents annexed with the O.A. and the originals have been returned to Sri Suman Chatterjee, Dy. Manager of applicant Bank's S.M.E. Centre Kolkata, 1, Strand Road, Kolkata – 700001 on 01.04.2021, such has been recorded in the Ld. Registrar-in-Charge's Order dated 01.04.2021. The documents produced by the Applicant Bank are exhibited and marked as Exhibits 'A-1' to 'A-2'.

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 copies of the documents (original documents verified by the Registry and returned to Sri Suman Chatterjee, Dy. Manager of applicant Bank's S.M.E. Centre Kolkata, 1, Strand Road, Kolkata – 700001 on 01.04.2021). Applicant Bank has corroborated the averments made in the O.A. Applicant Bank has proved the sanction of Term Loan of Rs.10,00,000/-.

Applicant Bank has proved the hypothecated movable assets, described in para III(A) at page 3 & 4 of the original application.

7. 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 O.A.

8. The Applicant Bank has filed Statement of Account certified under Banker's Books Evidence Act. Applicant Bank has stated that the outstanding balance in Loan Account (inclusive of accrued and penal interests calculated upto 02.08.2018) is **Rs.11,23,083.00** (Rupees eleven lakhs twenty three thousand eighty three) as on 02.08.2018, 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 @ 12.70% per annum, while in the Bank's Letter of Arrangement dated 08.09.2016 the rate of interest @ 9.65% per annum with monthly rests, has been mentioned; Therefore, the *pendente lite* & future rate of interest which has been agreed between the Applicant Bank and Defendant i.e. @ 9.65% per annum, simple from 03.08.2018, is allowed.

9. On the point of limitation, Loan has been sanctioned on 08.09.2016; documents have been executed on 08.09.2016, the original Application has been filed on 03.09.2018. It is seen that the original Application has been filed within 3 (three) years. 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 its claim made in the T.A. / O.A. The original Application being T.A. No.379 of 2020 (arising out of OA/ 727 of 2018) deserves to be allowed; hence allowed.

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

ORDER

(i) T.A. No.379 of 2020 (arising out of OA/ 727 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 hereby directed to pay the total debt amount of **Rs.11,23,083.00** (Rupees eleven lakhs twenty three thousand eighty three) due and payable, inclusive of interest and other charges as calculated upto 02.08.2018 towards the Loan Account; and interest for the period *pendente lite* and future @ 9.65% per annum, simple, from 03.08.2018, till realization of the entire sum due and recoverable.

(ii) Amount, if any, paid by the Defendant in the loan account or amount, if any, recovered by the Applicant Bank after filing of the original Application, the same 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 hypothecated movable assets; described in para III(A) at page 3 & 4 of the original Application.

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

(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 abovementioned time, the Applicant Bank is entitled to recover its dues by sale of secured assets, 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.379 of 2020 (arising out of OA/ 727 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the ..... day of June, 2022. None appeared for either of the parties.

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

Sd/-

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