UNITED BANK OF INDIA vs Joy Kali Oil Industries Pvt Ltd on 14 June 2019

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KOLKATA DEBTS RECOVERY TRIBUNAL NO. 2

ORDER SHEET

Vs

<table border="1" style="width: 100%; border-collapse: collapse;"> <thead> <tr> <th style="width: 10%; text-align: center;">Date of Order</th> <th style="width: 60%; text-align: center;">Order with Signature</th> <th style="width: 30%; text-align: center;">Office action with date and dated Signature of parties when necessary</th> </tr> </thead> <tbody> <tr> <td></td> <td> <p><b>TA/123/2001 ASREC(India) Ltd. (United Bank of India) Vs Joy Kali Oil Industries Pvt. Ltd. &amp; Others</b></p> <p><b>Date :</b></p> <p>Learned Counsel Shri D. Karmakar, Learned Counsel Shri A. Nandi appeared for Applicant F.I.</p> <p>Defendants have been set ex parte vide Tribunal's order dated 17.11.2017.</p> <p><b>Date of Order : 14.06.2019</b></p> <p style="text-align: center;"><b><u>ORDER</u></b></p> <p style="text-align: center;"><b>(Delivered on 14^th June, 2019)</b></p> <p>1. United Bank of India filed Title Suit being No. 166 of 1993 on 20.09.1993 before the Court of Asstt. District Judge, Burdawn against the Joy Kali Industries, Gopi Mohan Sinha Roy, Nilratan Sinha Roy, Badri Charan Sinha Roy, Bishnu charan Sinha Roy, Hari Charan Sinha Roy, Murari Mohan Sinha Roy, all are working for gain as Directors of the Defendant No. 1, Joy Kali Oil Industries Pvt. Ltd., M/s Bharavi (Publisher, a proprietorship firm, M/s Taraknath Rice &amp; Board Mill, a partnership firm, M/s Kenna Saw Mill, a partnership firm, for issuance of Decree for Rs. 31,36,291=92 and further interest from 01.08.1993 @ 19.75% p.a.</p> <p>2. During pendency of the Title Suit before the Learned Asstt. District Judge, Burdawn, the Defendant No. 7, Murari Mohan Sinha Roy expired and vide order dated 21.07.1994 of Asstt. District Judge, Burdawn, the name of Defendant No. 7 has been deleted.</p> <p>3. The Title Suit being No. 166 of 1993 was transferred to Debts Recovery Tribunal No. 1, and registered and numbered as TA/219/1996. The TA/219/1996 has been transferred to Debts Recovery Tribunal No. 2, Kolkata on jurisdiction ground and renumbered as TA/123/2001 vide Tribunal's order dated 19.06.2001.</p> <div style="text-align: right; margin-top: 20px;"> </div> </td> <td></td> </tr> </tbody> </table>

ORDER SHEET

Vs

<table border="1"> <thead> <tr> <th style="text-align: center;">Date of Order</th> <th style="text-align: center;">Order with Signature</th> <th style="text-align: center;">Office action with date and dated Signature of parties when necessary</th> </tr> </thead> <tbody> <tr> <td></td> <td> <p>4. During the pendency of the present TA, United Bank of India, the Applicant Bank assigned the loan account together with all right, title and interest in the matter in favour of ASREC(India) Ltd. vide Assignment Agreement dated 02.04.2009. M/s ASREC(India) Ltd. filed an IA being No. 182/2011 on 31.10.2011 before the Tribunal praying for their substitution in the matter as the Applicant F.I. in place Applicant Bank, United Bank of India and allowing the proposed amendments as indicated in the Schedule of the IA. The Tribunal vide order dated 06.01.2012 allowed the substitution of the Applicant F.I. The Applicant F.I. and has been substituted in place of United Bank of India vide Tribunal's order dated 06.01.2012 and the Plaint has been accordingly amended.</p> <p>5. As per the pleading in the Plaint, the Applicant Bank, United Bank of India sanctioned credit facilities on 06.08.1990 in favour of the Defendant No. 1, in the form of term loan to the extent of Rs. 5.20 lakhs along with interest @ 11.5% p.a. with quarterly rest and cash credit to the limit of Rs. 35 lakhs with interest @ 16.5% p.a. with quarterly rest. The Defendant No. 1 executed security documents on 21.09.1990 i.e. demand promissory note for Rs. 85.16 lakhs, letter of continuity, letter of lien, agreement of hypothecation of goods, agreement of hypothecation of debts and movable assets, agreement of hypothecation of movable plant and machinery. The Defendant Nos. 2 to 10 stood as the guarantors and executed letter of guarantee dated 21.09.1990.</p> <p style="padding-left: 40px;">The credit facilities granted to the Defendant No. 1, Joy Kali Oil Industries Pvt. Ltd. was secured by the creation of mortgage in respect of the properties as described in the Schedule II, Page 10 of the Plaint (1) by execution of intention letter dated 17.08.1984 as extended on 21.09.1990 executed by Defendant No. 1 in respect of the property situated in District Burdawn, P.S. Memari, Mouja Kenna, J.L.</p> <div style="text-align: right; margin-top: 20px;"> </div> </td> <td></td> </tr> </tbody> </table>

ORDER SHEET

(Continuation)

Case No. 7A/123/2001

Vs

<table border="1"> <thead> <tr> <th style="text-align: center;">Date<br/>of<br/>Order</th> <th style="text-align: center;">Order with Signature</th> <th style="text-align: center;">Office action with<br/>date and dated<br/>Signature of<br/>parties when<br/>necessary</th> </tr> </thead> <tbody> <tr> <td style="vertical-align: top; text-align: center;">14/06/2019</td> <td> <p>No. 139 for an area of 2.74 acre (2) by creation of mortgage by Tarak Nath Rice &amp; Board Mill, Defendant No. 9 vide intention letter dated 17.08.1984 and extended on 21.09.1990 in respect of the property situated in District Burdawn, P.S. Memari Mouja Kenna, J.L. No. 139 for the area of 2.78 acre, (3) by creation of mortgage by Murari Mohan Singh Roy, Defendant No. 7 (since deceased and name expunged) in respect of the property situated in District Burdawn, P.S. Memari, Mouja Kenna, J.L. No. 139 for an area of .17 acre (4) by creation of mortgage by Shri Nil Ratan Singh Roy, Defendant No. 3, in respect of the property situated at District Burdawn, P.S. Memari, Mouja Kenna for the area .15 acre, (5) by creation of mortgage by Shri Bishnu Charan Singh Roy, Defendant No. 5, in respect of the property situated at District Burdawn, P.S. Memari, Mouja Kenna for the area of .85 acre, and (6) by creation of mortgage by Shri Badri Charan Singh Roy, Defendant No. 4, in respect of the property situated at District Burdawn, P.S. Memari, Mouja Kenna, for the area 2.37 acre.</p> <p>The defendants have failed and neglected to repay the loan amount to the Applicant Bank, United Bank of India in accordance with the terms and conditions of the agreement, even in spite of demand made by the Applicant Bank. As per the statement of account, on the date of the Title Suit, the total outstanding amount stood at Rs. 31,36,291=92 with interest calculated till 31.07.1993 in the term loan account as well as in the cash credit account. For the recovery of the said outstanding amount along with further interest from 01.08.1993 till the realization of the Applicant Bank's dues recoverable from the Defendants, the Applicant Bank filed the Title Suit being No. 166/1993 against the defendants.</p> <p>6. The matter is under adjudication of this Tribunal since June, 2001. On perusal of the order sheets, it appears from Tribunal's order dated 24.04.2008 that the matter was settled between the parties at Rs. 25.54</p> <p style="text-align: right; margin-right: 50px;"><i>M. J. ...</i></p> </td> <td></td> </tr> </tbody> </table>

ORDER SHEET

Vs

<table border="1"> <thead> <tr> <th style="text-align: center;">Date of Order</th> <th style="text-align: center;">Order with Signature</th> <th style="text-align: center;">Office action with date and dated Signature of parties when necessary</th> </tr> </thead> <tbody> <tr> <td style="vertical-align: top; text-align: center;">14/06/2019</td> <td> <p>lakhs vide Applicant Bank's sanction letter dated 12.02.2008. Learned Counsel for Defendants submitted that substantial amount has been paid. Accordingly, vide order dated 12.02.2008, the Applicant Bank was directed to file detailed statement indicating therein the payments made by the Defendants and also the adjustments made by the Applicant Bank, clearly mentioning the date and amount of each transaction/payment/adjustment within thirty days. Further, vide Tribunal's order dated 02.07.2008 the Applicant Bank submitted that the matter was compromised at Rs. 25.54 lakhs in full and final satisfaction of the dues but the Defendants failed to comply with the terms and conditions of compromise. Learned Counsel for Applicant Bank submitted that the Defendants paid Rs. 11.04 lakhs towards settlement vide order dated 02.07.2008. Vide order dated 16.06.2009, Learned Counsel for Defendants filed an affidavit in compliance of the Tribunal's order dated 19.09.2008, disclosing that the Defendants have paid the settled amount and there is no amount due and payable to the Applicant Bank.</p> <p>7. In view of above said recording of the submission of the Learned Counsel for the parties as regard settlement of the loan account and payments made towards settlement, the present status of the loan account should be brought on record for further hearing in the matter.</p> <p>8. Vide Tribunal's order dated 19.04.2005 allowed sale of the properties subject to charge and appointed Special Officer. Accordingly the valuation of the properties was made by the Applicant Bank and the reserve price was fixed at Rs. 60,91,408/- for sale of the same. Vide order dated 14.11.2005, the Special Officer informed that sale could not be concluded in respect of the property subject to charge, the reserve price fixed being at higher side.</p> <p>9. A Misc. Application being No. 535/2010 was filed on 13.07.2010 by Shri Saurav Agarwal, the intending purchaser of the Oil Mill</p> <p style="text-align: right; margin-right: 50px;"><i>N. S. S.</i></p> </td> <td></td> </tr> </tbody> </table>

ORDER SHEET

Vs

<table border="1"> <thead> <tr> <th style="text-align: center;">Date<br/>of<br/>Order</th> <th style="text-align: center;">Order with Signature</th> <th style="text-align: center;">Office action with<br/>date and dated<br/>Signature of<br/>parties when<br/>necessary</th> </tr> </thead> <tbody> <tr> <td style="text-align: center; vertical-align: top;">14/06/2019</td> <td> <p>belonging to M/s Joykali Oil Industries Pvt. Ltd. offering a bid for Rs. 40.00 lakhs against the sale advertisement published by the Applicant Bank. The intending purchaser has disclosed in the misc. application that assets of the Defendant Company have already been sold through negotiations made by the Applicant Bank which was not within the knowledge of the intending purchaser. The sale became ineffective and the Misc. Applicant was ultimately allowed to get back the earnest money of Rs. 5.00 lakhs deposited by him vide Tribunal's order dated 04.03.2010.</p> <p>10. The Defendants created equitable mortgage in the year 1984, extended in the year 1990. Hence, thirty four years have lapsed since creation of equitable mortgage by the Defendants. The Tribunal is of the view that the present status of the mortgage properties shall be obtained from the Applicant F.I. for further adjudication on the issue of mortgage claimed in the Plaint.</p> <p>11. The Applicant Bank, United bank of India, filed on 06.04.1998 along with copy of the documents. The evidence on affidavit has been affirmed by Shri Prodyot Kumar Mookherjee, Manager of the Applicant Bank. There is no existence of the Applicant Bank, United Bank of India in the present matter for assignment of the loan account in favour of Applicant F.I. The Manager of the Applicant, United Bank of India, who has affirmed the evidence on affidavit cannot prove the case of the Applicant F.I. since the loan account has been assigned in favour of Applicant F.I. After substitution of the Applicant F.I. in place of earlier Applicant, United Bank of India, the Applicant F.I. has not filed proper petition on affidavit to lead the evidence on affidavit already filed by the earlier Applicant, United Bank of India and has been taken on record. Consequent upon assignment of the loan account in favour of the Applicant F.I. and substitution of the Applicant F.I. in place of earlier Applicant, United Bank of India, the present Applicant</p> <p style="text-align: right; margin-right: 50px;"><i>Wan</i></p> </td> <td style="text-align: center; vertical-align: top;">14/06/2019</td> </tr> </tbody> </table>

**KOLKATA DEBTS RECOVERY TRIBUNAL NO. 2** **ORDER SHEET** **(Continuation)**

Case No. TA/123/2001

Vs

14/06/2019

<table border="1"> <thead> <tr> <th data-bbox="100 225 175 288">Date of Order</th> <th data-bbox="175 225 758 288">Order with Signature</th> <th data-bbox="758 225 885 288">Office action with date and dated Signature of parties when necessary</th> </tr> </thead> <tbody> <tr> <td data-bbox="100 288 175 925"></td> <td data-bbox="175 288 758 925"> <p>F.I. is under legal obligation to file proper petition on affidavit praying for leading the evidence on affidavit, affirmed by Manager of United Bank of India.</p> <p>12. In view of above said circumstances of the matter, the following order is passed:</p> <p>(1) The Applicant F.I. shall file an affidavit disclosing the fact of compromise arrived at between the parties, the amount paid by the Defendants towards compromise in compliance of Tribunal's order dated 12.02.20108 and the present dues of the Applicant F.I. in the light of the order dated 16.06.2009 vide which Learned Counsel for Defendants filed an affidavit in compliance of the Tribunal's order dated 19.09.2008, disclosing that the Defendants have paid the settled amount and there is no amount due and payable to the Applicant Bank.</p> <p>(2) The Applicant F.I. shall disclose whether any no due certificate or confirmation of payments have been issued by the Applicant F.I. In case of settlement of the loan account and payment of settled amount has been made, the Applicant F.I. shall file joint petition for withdrawal of the matter.</p> <p>(3) The Applicant F.I. shall file an affidavit disclosing the details of the sale, if any, of the mortgage properties during the pendency of the matter. If not, the Applicant F.I. shall disclose in the affidavit the present status of the mortgage properties, the occupancy in the mortgage properties.</p> <p>(4) The Applicant F.I. shall file proper application on affidavit seeking leave of the Tribunal to lead the evidence on affidavit filed by earlier Applicant, United Bank of India and affirmed by Manager of the Applicant, United Bank of India along with copy of the documents, properly marked.</p> <p style="text-align: right;"><i>M. R. N</i></p> </td> <td data-bbox="758 288 885 925"></td> </tr> </tbody> </table>

ORDER SHEET

Vs

<table border="1"><thead><tr><th data-bbox="103 223 178 288">Date of Order</th><th data-bbox="178 223 758 288">Order with Signature</th><th data-bbox="758 223 880 288">Office action with date and dated Signature of parties when necessary</th></tr></thead><tbody><tr><td data-bbox="103 288 178 915"><u>14/06/2019</u></td><td data-bbox="178 288 758 915"><p>(5) The Applicant F.I. shall take steps for completion of pleadings within and compliance of the direction as directed hereinabove within thirty days from the date of this order.</p><p>Matter be listed before Learned Registrar on 24.07.2019 for compliance by the Applicant F.I.</p><p>Copy of the order be given to the parties.</p><p>The Applicant F.I. shall send the copy of the order to the Defendants by speed post and file compliance report before the Learned Registrar.</p><p style="text-align: right;"><br/>(M.S. Rao) <u>14-06-2019</u><br/>Presiding Officer<br/>Kolkata DRT No. 2</p></td><td data-bbox="758 288 880 915"></td></tr></tbody></table>