STATE BANK OF INDIA vs Mahamaya Cold Storage And Ors on 14 June 2019

1. 1. M/s The Mohamaya Cold Storage, a firm duly registered under the Indian Partnership Act and carrying on business at Village and Post Office Ajhapur, P.S. Jamalpur in the District of Burdawn within the said jurisdiction.

2. 2. Sudhir Kumar Ghosh

3. 3. Nrisingha Kumar Mukherjee

4. 4. Sambhu Nath Ghosh

5. 5. Hiran Kumar Mondal

6. 6. Uday Chand Chakraborty

7. 7. Gopeswar Chakraborty

8. 8. Ananta Basudev Chakraborty

9. 9. Chittaranjan Nag

10. 10. Ram Naryan Mookherjee, Village Uplati, P.O. Simlon, Burdawn

11. 11. Shyam Sundar Dutta -All carrying on business at Village and P.O. Ajhapur, P.S. Jamalpur in the District of Burdawn within the said jurisdiction.

12. 12. Rabindra Nath Chakraborty, residing at Village & P.O. Memari, P.S. Memari, District Burdawn

13. 13. Sunil Kumar Ghosh (since deceased), residing at Village Sankarpur, P.O. Radhakantapur, P.S. Memari, District Burdawn

14. 14. Guru Charan Chakraborty, residing at Village & P.O. Memari, P.S. Memari, District Burdawn

15. 15. Pijush Kanti Chakraborty, residing at Village & P.O. Memari, P.S. Memari, District Burdawn

16. 16. Smt. Annapurna Devi (Chakraborty), residing at Village Hiranyagram, P.O. Jamalpur, P.S. Jamalpur, District Burdawn = 2 =

7A/727/2001

17. Ajit Kumar Ghosh, residing at Village Sankarpur, P.O. Radhakantpur, P.S. Memari, District Burdawn

18. Swadesh Ranjan Nag, residing at Village Medhupur, P.O. Simlon, P.S. Kalna, district Burdawn

19. Sushil Kumar Ghosh, residing at Village Sankarpur, P.O. Radhakantpur, P.S. Memari, district Burdawn

20. Tulshi Charan Dutta (since deceased)

Represented by :

20(a). Indumati Dutta(Wife)

20(b) Gour Mohan Dutta (son)

20(c) Malachand Dutta(son)

20(d) Purnima Das (daughter)

21(e) Suchitra Pramanik(daughter)

22(f) Supriya Dutta(daughter)

23(g) Sulekha Ghosh(daughter)

21. Purusottam Chakraborty, residing at Village & P.O. Memari, P.S. Memari, District Burdawn

22. Smt. Purnima Bala Ghosh

23. Ranjit Kumar Ghosh

24. Sujal Kanti Ghosh

25. Tarun Kanti Ghosh, minor under the age of 18 years, represented by his mother and natural guardian smt. Purnima Bala Ghosh, the Defendant No. 22 herein.

26. Smt. Madhushree Ghosh, all residing at Village Sankarpur, P.O. Radhakantpur, P.S. Memari, District Burdawn

.....Defendants

For the Applicant Bank : Ms M. Kanji, Learned Counsel For the defendant nos. 1, 6, 7 and 8 : Shri M.S. Chattopadhyay, Learned Counsel For Defendant Nos. 12 and 15 : Shri K.K. Baral, Learned Counsel For other Defendants : None **JUDGMENT/FINAL ORDER**

**(Delivered on 14^th June, 2019)**

1. The Applicant Bank filed the Title Suit being No. 64/1982 on 12.04.1982 before the Sub Judge, Burdawn against twenty six defendants for the recovery of total outstanding amount of Rs. 47,23,501=79 as on 11.04.1982 in the manner of Rs. 14,75,329=59 in two term loan accounts, Rs. 19,31,529=13 in two medium term loan account, Rs. 9,09,914=66 in the cash credit account. Rs. 4,06,728=41 payable by 40 potato growers to the Applicant Bank and further interest @ 15% p.a. with from 12.04.1982 for the period pendente lite and future interest.

During the pendency of the TA before the Learned DRT-1, Kolkata, Defendant No. 20 has expired and his legal heirs have been impleaded as the parties being Defendant Nos. 20(a) to 20(g). The Plaintiff has accordingly been amended vide order dated 27.08.1996 passed by Learned DRT-1, Kolkata.

2. The Title Suit being No. 64/1982 was transferred to Debts Recovery Tribunal No. 1 and numbered as TA/331/1995. Further, the TA/331/1995 was transferred from DRT-1, Kolkata to Debts Recovery Tribunal No. 2, Kolkata and renumbered as TA/727/2001.

3. In brief, the facts as appeared from the Plaintiff and the documents filed on record are as under :

(i) The Defendant No.1 is a partnership firm and Defendant Nos. 2 to 11 are the partners of the Defendant No. 1. The Defendant No. 1 carried out cold storage business at Ajhapur in the District Burdawn. One Chandi Charan Ghosh (since deceased) was the partner of the Defendant No. 1. The Defendant Nos. 17, 22 to 26 are the legal heirs of said deceased partner, Chandi Charan Ghosh.

(ii) At the request of the Defendant No. 1 through its partners for the purpose of construction of cold storage, the Applicant Bank sanctioned on 19.12.1977 medium term loan for RS. 11.46 lakhs in the form of two medium term loan, one for Rs. 6.80 lakhs and another for a sum of Rs. 4.66 lakhs along with interest @ 15% p.a. The Defendant No. 1 through its partners accepted the sanction and executed security documents i.e. Agreement for medium term loan dated 19.12.1977 for Rs. 6.90 lakhs, Agreement for medium term loan for Rs. 4.66 lakhs, Letter of undertaking not to create further charge on COS 245, Letter of Pledge pledging all machinery belonging to the Defendant No. 1. The Defendant Nos. 2 to 16, 18, 19 and said deceased Chandi Charan Ghosh stood as the guarantors and executed Guarantee Agreement dated 19.12.1977.

(iii) The Defendant No. 1 through its partners, deposited title deeds on 17.11.2078 and 19.12.1977 and 17.11.1977 with the intent to create equitable mortgage in favour of the Applicant Bank in respect of the properties (1) land belonging to the Defendant Nos. 1, 2 to 11 measuring about 1.90 acres situated at Mouza Ajhapur, J.L. No. 20, P.S. & Sub-Registration Office Jamalpur, district Burdawn, Plot No. 4840, Khatian No. 266 and 357 with building, compound walls, fittings and fixtures and everything appertaining thereto and erected thereon, (2) land belonging to Defendant Nos. 1, 2 to 11 and Chandi Charan Ghosh (Deceased) measuring an area of about 1.12 acres situated at Mouza Ajhapur, J.L. No. 20, P.S. & Sub-Registration Office Jamalpur, District Burdawn, Plot Nos. 4834 and 4840, Khatian Nos. 92, 266 and 357 with building, compound walls, fittings and fixtures

M. R. K.

and everything appertaining thereto and erected thereon, as described in First Schedule of the Plaint.

Further, the Defendant Nos. 2, 6, 7, 8, 9, 10, 12, 13, 14, 15, 18, 19, 20 (since deceased), 21 and deceased Chandi Charan Ghosh deposited the title deeds with the intent to create equitable mortgage on 19.12.1977 in favour of the Applicant Bank in respect of the properties (1) land measuring 0.70 acre belonging to the Defendant Nos. 6, 7, 8, 12, 14, 15 and 21 situated at Mouza Memari, J.L. No. 152, P.S. & Sub-registration Office Memari, Dist. Burdawn, Plot Nos. 1352 and 2242/2288, Khatian No. 1397 and 62 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, (2) land measuring 0.13 $\frac{1}{4}$ acre belonging to Defendant Nos. 2, 13, 19 and Chandi Charan Ghosh (since deceased) situated at Mouza Memari, J.L. No. 152, P.S. & Sub-registration Office Memari, Dist. Burdawn, Plot Nos 728 and 395, Khatian No. 1536 and 923 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, (3) land measuring 0.17 acre belonging to Defendant Nos. 9 and 18 situated at Mouza Madhupur, J.L. No. 55, P.S. & Sub-registration Office Kalna, Dist. Burdawn, Plot Nos. 153, Khatian No. 144 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, (4) land measuring 0.20 acre belonging to Defendant No. 10, situated at Mouza Uplati, J.L. No. 64, P.S. & Sub-registration Office Kalna, Dist. Burdawn, Plot Nos 688 (present Plot No. 688/2180), Khatian No. 378 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, (5) Land measuring 0.18 acre belonging to Defendant No. 16, situated at Mouza Hiranyagram, J.L. No. 28, P.S. & Sub-registration Office Jamalpur, Dist. Burdawn, Plot Nos. 1102, Khatian No. 516 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, as described in Second Schedule of the property.

Hence, land belonging to Defendant Nos. 1, 2 to 11, 12, 13, 14, 15, 16, 18, 19 and 21 has been put to equitable mortgage for sanction of loan in favour of the Defendant No. 1. One Chandi Charan Ghosh also stood as the mortgagor to secure the repayment of the loan sanctioned in favour of the Applicant Bank in respect of his properties as aforesaid. The mortgagor Chandi Charan Ghosh expired and his legal heirs being the Defendant No. 17 and 22 to 26 have been made parties in the matter.

(iv) The dues in the two medium term loan accounts stood at Rs. 14,75,329=59 as on 11.04.1982. The Defendant Nos. 2 to 19, 22 to 26 are liable to pay the said dues and further interest @ 13.50% p.a. from 12.04.1982 till realization.

(v) Further, at the request of the Defendant No. 1 through Defendant Nos. 2 to 11 and deceased mortgagor Chandi Charan Ghosh, the Applicant Bank sanctioned on 06.02.1979 two separate medium term loan totaling Rs. 13.50 lakhs, (in one loan account for Rs. 8.64 lakhs and in another loan account Rs. 4.86 lakhs) with interest @

11% p.a. The Defendant No. 1 executed security documents i.e. agreement for medium term loan for Rs. 8.64 lakhs, agreement for medium term loan for Rs. 4.86 lakhs, letter of pledge pledging all machinery belonging to the Defendant No. 1, letter of undertaking not to create further charge on COS 245. The Defendant Nos. 2 to 16, 18, 20(since deceased), 21 and Chandi Charan Ghosh(since deceased) stood as the guarantors and executed Letter of Guarantee dated 06.02.1979.

The Defendant Nos. 1, 2, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19, 21 and Chandi Charan Ghosh(since deceased) extended the equitable mortgage already created in respect of their properties as aforesaid on 05.02.1979 for further loan of Rs. 13.50 lakhs and confirmed the extension of mortgage by executing confirmatory letters dated 07.02.1979.

(vi) The Defendant No. 20(since deceased) created equitable mortgage by way of depositing the title deed on 19.02.1979 to secure the entire loan of Rs. 24.96 lakhs in respect of the property i.e. land measuring $0.18 \frac{1}{2}$ acre belonging to Defendant No. 20 situated at Mouza Memari, J.L. No. 1521, P.S. & Sub-registration Office Memari, Dist. Burdawn, Plot Nos 1542,, Khatian No. 547 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, as described in third Schedule of the property.

(vii) In the medium term loan account in which a sum of Rs. 4.86 lakhs was advanced and in the medium term loan account in which a sum of Rs. 8.64 lakhs was advanced by the Applicant Bank, the outstanding amount stood at Rs. 7,04,122=34 and Rs. 12,27,406=79 i.e. in total Rs. 19,31,529=13 as on 11.04.1982. The Defendant Nos. 2 to 17, 19 to 26 are liable to pay the said dues of the Applicant Bank.

(viii) Further, at the request of the Defendant No. 1 through Defendant Nos. 2 to 11 and the deceased Chandi Charan Ghosh, the Applicant Bank sanctioned on 14.04.1979 cash credit facility to the limit of Rs. 6.45 lakhs along with interest @ 14% p.a. against the security of pledge of cold storage receipts as documents of title to the goods stored in the cold storage. The Defendant No. 1 executed security documents on 14.04.1979 i.e. Demand Promissory Note for Rs. 6.45 lakhs executed by the partners of the Defendant No. 1, and the Defendant Nos. 12 to 16 and 18 to 20 endorsed the same in favour of the Applicant Bank, letter dispensing with the presentation of the Promissory Note for payment, agreement for cash credit in Form K i.e. hypothecation of goods, agreement for cash credit in Form L i.e. hypothecation of debts and assets, the tripartite agreement between the hirer, cold storage owner and the Bank, letter of pledge and deposit of cold storage receipts, guarantee in Form I.

The Defendant No. 1 through its partners extended the equitable mortgage vide letter dated 27.04.1979 for the cash credit limit of Rs. 6.45 lakhs. Similarly, Defendant

Nos. 2, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19 and 21 and Chandi Charan Ghosh(sine deceased) vide letter dated 27.04.1979 extended the equitable mortgage in respect of the present cash credit facility to the limit of Rs. 6.45 lakhs. The Defendant No. 20(since deceased) vide letter dated 28.04.1979 extended the equitable mortgage to the present cash credit facility to the limit of Rs. 6.45 lakhs. The Defendant Nos. 2 to 16, 18 to 20(since deceased) stood as the guarantors and executed Deed of Guarantee dated 14.04.1979.

(ix) In the cash credit account in which a sum of Rs. 6.45 lakhs was advanced the outstanding amount stood at Rs. 79,09,914=66 as on 11.04.1982. The Defendant Nos. 2 to 16, 18 to 20, 22 to 26 are liable to pay the said dues of the Applicant Bank and further interest @ 15.10% p.a.

(x) The Applicant Bank sanctioned cash credit to potato growers as recommended by the Defendant No. 1 through its partners against security of cold storage receipts issued to individual potato growers by the /defendant No. 1. In this connection, the terms and conditions were settled between the Defendant No.1 and its partners and Applicant Bank. The Defendant No. 1 and its partners and Defendant No. 17 stood as the guarantors. Forty potato growers/farmers failed to pay their dues in their respective cash credit account. Thus a total sum of Rs. 4,06,728=41 inclusive of interest @ 15% p.a. calculated upto 11.04.1982 is due and payable by the forty potato growers. The Defendant No. 1 and its partners and Defendant No. 17 are liable to pay jointly and severally to pay to the Applicant Bank the sum of Rs. 4,06,728=41 as on 11.04.1982 and further interest @ 15% p.a. from 12.04.1982.

(xi) Inspite of demand, the Defendant Nos. 1 to 11, 2 to 16 and 18, 19, 20(since deceased) and 21, and the Defendant Nos. 17, 22 to 26 being the legal heirs of deceased Chandi Charan Ghosh failed and neglected to repay the dues of the Applicant Bank in the loan accounts i.e. Rs. 14,75,329=59, Rs. 19,31,529=13, Rs. 9,09,914=66 and Rs. 4,06,728=41 with interest calculated upto 11.04.1982 i.e. the total dues of the Applicant Bank for a sum of Rs. 47,23,501=79 (Rupees forty seven lakhs twenty three thousand five hundred one and paise seventy nine) as on 11.04.1982. For recovery of the dues of Rs. 47,23,501=79 (Rupees forty seven lakhs twenty three thousand five hundred one and paise seventy nine) as on 11.04.1982 and further interest .

4. The defendants have failed and neglected to repay the loan amount to the applicant bank 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, the total outstanding amount stood at Rs. 47,23,501=79 (Rupees forty seven lakhs twenty three thousand five hundred one and paise seventy nine) with interest calculated upto 11.04.1982. For the recovery of the said outstanding amount along with further interest

M. na

272TA/727/2001

@ 15% p.a. till the realization of the Bank's dues recoverable from the defendants, the Applicant Bank filed the Title Suit being No. 64 of 1982 against the defendants.

5. The summons/notices were served upon the defendant through regd. Post AD and hand delivery. The defendant no. 2 received the summons by hand delivery service. The defendant no. 1, 6, 7 and 8 have been represented by Learned Counsel Shri M.S. Chattopadhyay, filed Vakalatnama with no objection from earlier Advocate.. The Applicant Bank has filed affidavit of service confirming service of summons upon the defendants. Thus, the Defendants have been properly served.

6. The defendant no. 2 has neither filed written statement, nor adduced/produced any evidence to the OA in spite of opportunity given by this Tribunal. For his non-appearance on the consecutive dates of hearing, the matter has been set ex parte against the defendant no. 2 vide order dated 18.6.2015.

7. The defendant no. 1 has filed written statement. The Defendant No. 5 and 10 have also filed written statement. The Defendant No. 21 has filed written statement. The Defendant No. 8 has filed written statement. The Defendant No. 1, 5 and 10 and Defendant No. 8 have not adduced/produced evidence in support of the contentions made in the written statement.

The Defendant Nos. 6 and 7 have filed affidavit on evidence, praying for decree of Rs. 292,020,480=00. The Defendant No. 20 has filed affidavit of evidence, praying for decree of Rs. 223,95,880/-

8. The Applicant Bank has filed evidence on affidavit affirmed by Shri Samir Baran Dutta, Chief Manager of the applicant bank, along with the copy of documents, statement of account, documents marked Exhibit 1 to 9, evidence affirmed by Shri Samir Baran Dutta, Chief Manager along confirmatory letters and the original title deeds, documents collectively marked Exhibit 15. The Applicant Bank has filed supplementary affidavit with regard to the statement of account of the loan account from 01.01.1999 till 30.11.2015, confirming dues of the Applicant Bank at Rs. 95,88,872=-00. The Applicant Bank has filed supplementary affidavit annexing statement of account and certificate to the statement of account under Banker's Books Evidence Act, documents marked Exhibit 1 to 3. Vide order dated 09.03.1990, Learned Civil Court, Burdawn in TS/64/1982 recorded production of documents by the Plaintiff, the Applicant Bank, the documents have been marked and exhibited.

9. The Applicant Bank has filed written notes of argument. The Defendant Nos. 1, 6 and 7 filed written notes of argument. The Defendant Nos. 12 and 15 filed written notes of argument.

10. I have heard the Learned Counsel for the parties and gone through the records.

11. Before going into the merits of the contention of the Defendant Nos. 2, 5, 8, 10 and 21 in the written statement, the original documents filed by the Applicant along with evidence on affidavit filed on 25.02.2005 in respect of intention letters executed by these Defendants to create equitable mortgage and deposit of title deeds with the Applicant Bank are taken into account. The Defendant Nos. 1, 2 to 11, 12, 13, 14, 15, 16, 18, 19, 20(since deceased) and 21 executed letters of intention on various dates confirming deposit of title deeds with the intention to create equitable mortgage to secure the loan sanctioned in favour of the Defendant No. 1 by the Applicant Bank. The Applicant Bank has submitted the letters of intention in original executed by the above said Defendants on various dates and the original title deeds along with the evidence on affidavit filed on 25.02.2005. The Applicant Bank has submitted letters of intention executed by the above said Defendants to create equitable mortgage in respect of the properties specified therein and the letters of extension of mortgage on 23.12.1977, 05.02.1979, 07.12.1979, 23.12.1977, 23.12.1977, 23.12.1977, 23.12.1977, 05.02.1979, 23.12.1977, 23.12.1977, 07.02.1979, 23.12.1977, 21.11.1978, 05.02.1979, 07.02.1979, 07.02.1979, 05.02.1979, 23.12.1977, 23.12.1977, 07.02.1979, 07.02.1979, 21.11.1978, 05.02.1979, 23.12.1977. The Applicant Bank has submitted the original title deeds along with the evidence on affidavit filed on 25.02.2005 being No. I-8581/1967, I-8924/1966, I-3953/1969, I-6535/1968, I-4909/1953, I-4908/1953, I-8941/1962, I-2075/1977, I-2076/1977, I-2763/1977, I-939/1969, I-3775/1954, I-4261/1972, I-6469/1962 to prove creation of mortgage by the above said Defendants. There cannot be creation of mortgage by the above said Defendants by depositing the original title deeds unless the Defendant No. 1 availed the credit facilities from the Applicant Bank. The original letters of intention to create mortgage and the extension of mortgage letters as well as the original title deeds deposited by the above said Defendants with the Applicant Bank are the irrefutable and undeniable documents relied upon by the Applicant Bank in support of their claim amount recoverable from the Defendants in the present matter. Further, the Applicant Bank has submitted the copy of the guarantee agreement executed by the Defendant Nos. 2-16, 18, 19 and Shri Chandi Charan Ghosh(since deceased) dated 19.12.1977, the guarantee agreement executed by the Defendant Nos. 2-16, 19, 20(since deceased), 21 and Shri Chandi Charan Ghosh(since deceased) dated 06.02.1979 and guarantee agreement executed by Defendant Nos. 2-16, 18 to 20 on 14.04.1979 along with evidence on affidavit filed by the Applicant Bank on 25.02.2005. All the guarantee agreement bears the signatures of the above said Defendants confirming sanction of credit facilities by the Applicant Bank in favour of the Defendant No. 1. Execution of the guarantee agreements 19.12.1977, 06.02.1979, 14.04.1979 by the above said Defendants is sufficient evidence for the Applicant Bank to prove their claim case. Bare denial of the debt liability is not sufficient ground to invite judicial consideration. The Applicant Bank has submitted sufficient evidence that the Defendant No. 1 availed the credit facilities from the Applicant Bank and the above said Defendants created equitable mortgage in respect of their properties and executed guarantee agreements to secure the repayment of the dues of the Applicant Bank.

However, on perusal of the written statement filed by the Defendant No. 1, it appears that the written statement is denial statement. The Defendant No. 1 has denied the sanction and enjoyment of the credit facilities and creation of equitable mortgage or execution of loan documents. The denial made by the Defendant No. 1 is only evasive denial and is not supported by adducing/producing evidence in rebuttal to the evidence submitted by the Applicant Bank. The contention raised in the written statement filed by the Defendant No. 1 does not invite judicial consideration.

The Defendant No. 21 has submitted written statement, adopting the contentions taken by the Defendant Nos. 6 and 8 in their written statement. The Defendant No. 21 has contended that Applicant Bank sanctioned agricultural loan to the farmers and the said loan shall be liquidated by the Govt. of India and hence there is no debt liability of the Defendant No. 21.

On perusal of the written statement filed by the Defendant Nos. 5 and 10, these Defendants have described in the written statement about the constitution of the Mahamaya Cold Storage its share holding pattern, inter se disputes of the partners of the Defendant No. 1 in respect of their share holding, closure of the cold storage in the year 1983, appointment of Receiver, High Court proceedings. However, in para 16 of the written statement, these Defendants have admitted that the cold storage was built up by the loan amount taken from the Applicant Bank and there is duty to repay the loan. The Applicant Bank claimed their dues of Rs. 47.00 lakhs in the year 1982. There was payment made by the Receiver of Rs. 27.50 lakhs from 1984-1990, Rs. 4 lakhs have been exempted by provision of law, the special officer has deposited Rs. 1.00 lakh and there are fixed deposits lying with the Applicant Bank. The Defendants have prayed for fixing the amount payable by the Defendant Nos. 5 and 10. The written statement filed by the Defendant Nos. 5 and 10 are admissible and the debt liability of the Defendant Nos. 5 and 10 is liable to be decided.

On perusal of the written statement filed by the Defendant No. 8, this Defendant has denied the pleadings made by the Applicant Bank in the Plaint. This Defendant has denied in the written statement enjoyment of credit facilities by the Defendant No. 1, execution of loan document, creation of mortgage, the dues claimed by the Applicant Bank that he has no debt liability to be discharged. However, in Para 47 of the written statement, this Defendant has admitted sanction of term loan amount to Rs. 11.46 lakhs and cash credit facilities but the dues have been fully liquidated. Further, in Para 48 of the written statement, this Defendant has admitted further sanction of term loan of Rs. 13.50 lakhs by the Applicant Bank. For non-release of further cash credit facilities to the tune of Rs. 6.45 lakhs, this Defendant suffered an amount of Rs. 3,31,000/- and this Defendant is entitled to recover Rs. 6,37,000/- from the Applicant Bank as on the date of filing of the written statement. The Defendant No. 8 has stated that the Defendant Nos. 2,3,4,9,17 have retired from the firm from 31.12.1980, 21.07.1982 and 12.12.1984 and now the existing partners of the firm are Defendant Nos. 6, 7, 8 and the Defendant No. 6 represents the Defendant No. 1. As discussed hereinabove, for deciding the debt liability of the Defendant No. 8, the Applicant Bank has relied upon the original letters of intention executed by the Defendant No. 8 along with other Defendants (Defendant Nos. 1, 2 to 11, 12, 13, 14, 15, 16, 18, 19, 20 and 21) to create equitable mortgage and deposit of the original title deeds submitted with the Applicant Bank and guarantee agreement executed by the Defendant No. 8 along with other Defendants (Defendant Nos. 2-16, 18, 19 and Shri Chandi Charan Ghosh (since deceased dated 19.12.1977, Defendant Nos. 2-16, 19, 20, 21 and Shri Chandi Charan Ghosh (since deceased dated 06.02.1979, and guarantee agreement executed by Defendant Nos. 2-16, 18 to 20 on 14.04.1979. All these original documents have filed before the Tribunal along with evidence on affidavit. All these documents are the sufficient evidence for the Applicant Bank to decide the debt of the Defendant No. 8. Bare denial of the debt liability is not sufficient ground to invite judicial consideration.

12. The Defendant No. 1 filed an IA being No. 16/2019 on 10.01.2019, praying for acceptance of the counter claim. The IA was dismissed vide order Tribunal's order dated 05.02.2019 and according the Tribunal vide order dated 05.02.2019 declined the counter claim of the Defendant No. 1 being not maintainable.

13. The Defendant No. 1 represented by Defendant No. 6, 7 and 8 has filed an affidavit stating the particulars of Fixed Deposits and contending that the Defendants have deposited Rs. 41,23,580/- and the Applicant Bank is holding three Fixed Deposits to the tune of Rs. 1,50,463/- The Applicant Bank has filed certified statement of account annexed to the supplementary affidavit filed on 22.01.2019. The Applicant Bank has clarified the adjustment of the recovery by Receiver and the Fixed Deposits to the loan account and arriving at the dues of the Applicant Bank at Rs. 16,20,671 as on 11.04.1982 and further interest from 12.04.1982.

14. The Applicant Bank has filed evidence on affidavit to prove the averments made in the Plaint. The evidence on affidavit filed by the Applicant Bank on 25.02.2005 is supported by the copy of the original documents (Ex 1 to 9) and the evidence on affidavit filed by the Applicant Bank on 25.02.2005 is supported by the original documents including original title deeds (Ex. 15 ). The Applicant Bank has corroborated the various averments made in the Plaint.

The Applicant Bank has proved the sanction of the credit facilities in favour of the Defendant no. 1 on 19.12.1977 a medium term loan for RS. 11.46 lakhs in the form of two medium term loan, one for Rs. 6.80 lakhs and another for a sum of Rs. 4.66 lakhs along with interest @ 15% p.a. The Applicant Bank has proved that the Defendant No. 1 through its partners executed security documents. The Applicant Bank has proved that the Defendant Nos. 2 to 16, 18, 19 and said deceased Chandi Charan Ghosh stood as the guarantors and executed Guarantee Agreement dated 19.12.1977.

The Applicant Bank has proved that the Defendant No. 1 stood as the mortgagor and executed letter of intention to create mortgage on 19.12.2010 and deposited title deed in respect of the properties i.e. (1) land belonging to the Defendant Nos. 1, 2 to 11 measuring about 1.90 acres situated at Mouza Ajhapur, J.L. No. 20, P.S. & Sub-Registration Office Jamalpur, district Burdawn, Plot No. 4840, Khatian No. 266 and 357 with building, compound walls, fittings and fixtures and everything appertaining thereto and erected thereon, (2) land belonging to Defendant Nos. 1, 2 to 11 and Chandi Charan Ghosh(Deceased) measuring an area of about 1.12 acres situated at Mouza Ajhapur, J.L. No. 20, P.S. & Sub-Registration Office Jamalpur, District Burdawn, Plot Nos. 4834 and 4840, Khatian Nos. 92, 266 and 357 with building, compound walls, fittings and fixtures and everything appertaining thereto and erected thereon, as described in First Schedule of the Plaint.

The Applicant Bank has proved that the Defendant Nos. 2, 6, 7, 8, 9, 10, 12, 13, 14, 15, 18, 19, 20(since deceased), 21 and deceased Chandi Charan Ghosh deposited the title deeds with the intent to create equitable mortgage on 19.12.1977 in favour of the Applicant Bank in respect of the properties (1) land measuring 0.70 acre belonging to the Defendant Nos. 6, 7, 8, 12, 14, 15 and 21 situated at Mouza Memari, J.L. No. 152, P.S. & Sub-registration Office Memari, Dist. Burdawn, Plot Nos. 1352 and 2242/2288, Khatian No. 1397 and 62 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, (2) land measuring 0.13 $\frac{1}{4}$ acre belonging to Defendant Nos. 2, 13, 19 and Chandi Charan Ghosh(since deceased) situated at Mouza Memari, J.L. No. 152, P.S. & Sub-registration Office Memari, Dist. Burdawn, Plot Nos 728 and 395, Khatian No. 1536 and 923 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, (3) land measuring 0.17 acre belonging to Defendant Nos. 9 and 18 situated at Mouza Madhupur, J.L. No. 55, P.S. & Sub-registration Office Kalna, Dist. Burdawn, Plot Nos. 153, Khatian No. 144 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, (4) land measuring 0.20 acre belonging to Defendant No. 10, situated at Mouza Uplati, J.L. No. 64, P.S. & Sub-registration Office

M. sh

Kalna, Dist. Burdawn, Plot Nos 688 (present Plot No. 688/2180), Khatian No. 378 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, (5) Land measuring 0.18 acre belonging to Defendant No. 16, situated at Mouza Hiranyagram, J.L. No. 28, P.S. & Sub-registration Office Jamalpur, Dist. Burdawn, Plot Nos. 1102, Khatian No. 516 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, as described in Second Schedule of the property.

The Applicant Bank has proved that the Applicant Bank sanctioned on 06.02.1979 two separate medium term loan totaling Rs. 13.50 lakhs, (in one loan account for Rs. 8.64 lakhs and in another loan account Rs. 4.86 lakhs) with interest @ 11% p.a. The Defendant No. 1 executed security documents. The Applicant Bank has proved that the Defendant Nos. 2 to 16, 18, 20 (since deceased), 21 and Chandi Charan Ghosh (since deceased) stood as the guarantors and executed Letter of Guarantee dated 06.02.1979. The Applicant Bank has proved that the Defendant Nos. 1, 2, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19, 21 and Chandi Charan Ghosh (since deceased) extended the equitable mortgage already created in respect of their properties as aforesaid on 05.02.1979 for further loan of Rs. 13.50 lakhs and confirmed the extension of mortgage by executing confirmatory letters dated 07.02.1979.

The Applicant Bank has proved that the Defendant No. 20 (since deceased) created equitable mortgage by way of depositing the title deed on 19.02.1979 to secure the entire loan of Rs. 24.96 lakhs in respect of the property i.e. land measuring $0.18 \frac{1}{2}$ acre belonging to Defendant No. 20 situated at Mouza Memari, J.L. No. 1521, P.S. & Sub-registration Office Memari, Dist. Burdawn, Plot Nos 1542, Khatian No. 547 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, as described in third Schedule of the property.

The Applicant Bank has proved that the Applicant Bank sanctioned on 14.04.1979 cash credit facility to the limit of Rs. 6.45 lakhs along with interest @ 14% p.a. against the security of pledge of cold storage receipts as documents of title to the goods stored in the cold storage. The Defendant No. 1 executed security documents on 14.04.1979. The Applicant Bank has proved that the Defendant Nos. 2 to 16, 18 to 20 stood as the guarantors and executed Deed of Guarantee dated 14.04.1979. The Applicant Bank has proved that the Defendant No. 1 through its partners extended the equitable mortgage vide letter dated 27.04.1979 for the cash credit limit of Rs. 6.45 lakhs. The Applicant Bank has proved that the Defendant Nos. 2, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19 and 21 and Chandi Charan Ghosh (since deceased) vide letter dated 27.04.1979 extended the equitable mortgage in respect of the present cash credit facility to the limit of Rs. 6.45 lakhs and the Defendant No. 20 vide letter dated 28.04.1979 extended the equitable mortgage to the present cash credit facility to the limit of Rs. 6.45 lakhs.

The Applicant Bank has proved that the Applicant Bank sanctioned cash credit to potato growers as recommended by the Defendant No. 1 through its partners against security of cold storage receipts issued to individual potato growers by the /defendant No. 1. The Defendant No. 1 and its partners and Defendant No. 17 stood as the guarantors.

The evidence on affidavit is supported by the documents which have remained unrebuted and its veracity cannot be put to dispute. Hence, the evidence on affidavit filed by the Applicant Bank deserves to be accepted.

15. The applicant bank has filed statement of account along with evidence on affidavit filed on 25.02.2005. The Applicant Bank in compliance of Tribunal's order dated 16.11.2018 has filed supplementary affidavit on 22.01.2019 along with statement of account, certified under Section 2A of the Banker's Books Evidence Act. The Applicant Bank has disclosed in the calculation sheet enclosed with the supplementary affidavit, Annexure A, that the as against the claim amount of Rs. 47,23,501=00 giving adjustment of Rs. 26,23,580=00 towards recovery by Receiver, recovery by FDR for Rs. 2,39,124=00, recovery of FDR for Rs. 2,40,126=00 and hence the dues of the Applicant Bank are Rs. 16,20,671=00 and adding the interest from 12.04.1982 till 31.08.2016, the present dues of the Applicant Bank are Rs. 96,66,304=00. From the supplementary evidence on affidavit filed on 22.01.2019, it shows that the dues of the Applicant Bank of Rs. 47,23,501=00 as on 11.04.1982 have been reduced due to recoveries made in the meantime and the claim amount has stood at Rs. 16,20,671=00 as on 11.04.1982 outstanding recoverable from the defendants. The defendants have failed to produce any documentary evidence to dispute the statement of account filed by the Applicant Bank as well as certified statement of account filed by the Applicant Bank along with supplementary evidence on affidavit. The certified statement of account filed by the Applicant Bank must be admitted as the evidence of the fact that the amount is due to the tune of Rs. 16,20,671=00 as on 11.04.1982 and no further evidence is required to decide the debt liability of the Defendants. Thus, the certified statement of account filed by the Applicant Bank deserves to be accepted. Hence, the defendants are liable to pay the total outstanding amount of Rs. 16,20,671=00 as on 11.04.1982 to the Applicant Bank and further interest @ 11% p.a. (simple) from 12.04.1982 for the period pendeite lite and future.

The Defendant Nos. 17, 22 to 26 are the legal heirs of deceased guarantor Chandi Charan Ghosh. The Defendant Nos. 20(a) to 20(g) are the legal heirs of Defendant No. 20(since deceased). Hence, the debt liability of the legal heirs of deceased guarantor Chandi Charan Ghosh are only to the extent of property they have inherited from the deceased guarantors, Chandi Charan Ghosh. Further, the debt liability of Defendant Nos. 20(a) to 20(g) is only to the extent of property inherited by them from the deceased 2/42TA/727/2001

Defendant No. 20, Tulshi Charan Dutta. The appropriate order is passed as against the said legal heirs hereinunder.

16. The Defendant No. 1 represented by Defendant No. 6, 7 and 8 in the affidavit filed on 15.03.2019 have disclosed that the Defendant No. 21 is dead. No documentary proof has been submitted by these Defendants as regard the death of the Defendant No. 20, Purusottam Chakraborty, residing at Village & P.O. Memari, P.S. Memari, Dist. Burdawn. The family members or the legal heirs of the Defendant No. 20 have not reported to the Tribunal as regard the death of Defendant No. 20. Hence, the Tribunal is not in a position to pass any order as regard the death of Defendant No. 20 as reported by these Defendants. The matter is pending since 1982 arising out Title Suit No. 64/1982. There are thirty two Defendants appearing in the Cause Title of the Plaint. As on the date of final order, in case there is death of any Defendant which has not been reported to the Tribunal, the status and debt liability of the legal heirs of any deceased Defendant shall be dealt in the Recovery Proceedings and the Learned Recovery Officer shall take appropriate steps as per law accordingly. There is no requirement of sending back the Recovery Certificate to the Tribunal for passing amendment order in the Recovery Certificate on the ground that a particular Defendant expired before passing the judgment/final order in the present matter.

17. On the point of interest, the Applicant Bank has claimed further interest in the loan account from 12.04.1982 @ 15.10% p.a. The Applicant Bank has claimed interest @ 11%p.a. in the statement of account annexed to the supplementary evidence on affidavit. The Applicant Bank is allowed further interest @ 11% p.a.(simple) from 12.04.1982 in the loan accounts for the period pendentite lite and future.

18. On the point of limitation there is not much scope for argument. The Title Suit being No. 64/1982 has been filed by the Applicant Bank on 20.05.1982 The loan amount is secured by creation of equitable mortgage on 19.12.1977. The limitation is twelve years in case the loan is secured by creation of equitable mortgage. The Title Suit being No. 64/1982 has been filed within limitation period before the Learned Civil Judge, Burdawn..

19. The matter also falls within the territorial as well as pecuniary jurisdiction of this Tribunal. The Applicant bank has proved its claim case and hence, the TA being No. 727/2001 deserves to be allowed.

ORDER

1) The TA being No. 727/2001 arising out of TA/331/1995 and Title Suit being No. 64/1982 of the Applicant Bank is allowed and debt is determined with cost against the defendants, and it is hereby ordered that the Applicant Bank is entitled to recover from the Defendants the total debt amount of Rs. 16,20,671=00 ( Rupees sixteen lakhs *M. Sd*

2152TA/727/2001

twenty thousand six hundred seventy one) only in the loan accounts along with further interest for the period pendente lite and future @ 11 % p.a. (simple) from 12.04.1982 till realization of the entire sum due and recoverable.

2) The debt liability of the Defendant Nos. 17 and 22, 23, 24, 25 and 26 is only to the extent of property they have inherited from the deceased mortgagor, Chandi Charan Ghosh. Further, the debt liability of Defendant Nos. 20(a) to 20(g) is only to the extent of property inherited by them from the deceased Defendant No. 20, Tulshi Charan Dutta. The debt liability of the legal heirs of any deceased Defendant on the date of final order shall be to the extent of property inherited by them from the deceased Defendant. Learned Recovery Officer shall take steps as regard the debt liability of the legal heirs of the deceased Defendants as per law in the Recovery Proceedings.

3) Amount, if any, paid by the Defendant towards the loan account or amount recovered by the Applicant Bank, if any, made towards the loan account be taken into account while arriving at the exact amount of outstanding payable by the Defendants,

4) The mortgage properties as detailed and described in First Schedule, Second Schedule and Third Schedule of the Plaint i.e. (1) land belonging to the Defendant Nos. 1, 2 to 11 measuring about 1.90 acres situated at Mouza Ajhapur, J.L. No. 20, P.S. & Sub-Registration Office Jamalpur, district Burdawn, Plot No. 4840, Khatian No. 266 and 357 with building, compound walls, fittings and fixtures and everything appertaining thereto and erected thereon, (2) land belonging to Defendant Nos. 1, 2 to 11 and Chandi Charan Ghosh(Deceased) measuring an area of about 1.12 acres situated at Mouza Ajhapur, J.L. No. 20, P.S. & Sub-Registration Office Jamalpur, District Burdawn, Plot Nos. 4834 and 4840, Khatian Nos. 92, 266 and 357 with building, compound walls, fittings and fixtures and everything appertaining thereto and erected thereon, as described in First Schedule of the Plaint, AND the mortgage properties i.e. (1) land measuring 0.70 acre belonging to the Defendant Nos. 6, 7, 8, 12, 14, 15 and 21 situated at Mouza Memari, J.L. No. 152, P.S. & Sub-registration Office Memari, Dist. Burdawn, Plot Nos. 1352 and 2242/2288, Khatian No. 1397 and 62 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, (2) land measuring 0.13 $\frac{1}{4}$ acre belonging to Defendant Nos. 2, 13, 19 and Chandi Charan Ghosh(since deceased) situated at Mouza Memari, J.L. No. 152, P.S. & Sub-registration Office Memari, Dist. Burdawn, Plot Nos 728 and 395, Khatian No. 1536 and 923 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, (3) land measuring 0.17 acre belonging to Defendant Nos. 9 and 18 situated at Mouza Madhupur, J.L. No. 55, P.S. & Sub-registration Office Kalna, Dist. Burdawn, Plot Nos. 153, Khatian No. 144 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, (4) land measuring 0.20 acre

M. S. L.

2162TA/727/2001

belonging to Defendant No. 10, situated at Mouza Uplati, J.L. No. 64, P.S. & Sub-registration Office Kalna, Dist. Burdawn, Plot Nos 688 (present Plot No. 688/2180), Khatian No. 378 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, (5) Land measuring 0.18 acre belonging to Defendant No. 16, situated at Mouza Hiranyagram, J.L. No. 28, P.S. & Sub-registration Office Jamalpur, Dist. Burdawn, Plot Nos. 1102, Khatian No. 516 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, as described in Second Schedule of the property, AND the mortgage properties i.e. land measuring $0.18 \frac{1}{2}$ acre belonging to Defendant No. 20 situated at Mouza Memari, J.L. No. 1521, P.S. & Sub-registration Office Memari, Dist. Burdawn, Plot Nos. 1542, Khatian No. 547 with buildings, compound walls, fittings and fixtures and everything appertaining thereto, as described in third Schedule of the property shall remain charged to the Applicant Bank and the Applicant Bank shall have paramount charge thereon.

1. 5) The Defendants are debarred from transferring, alienating, encumbering or disposing of the mortgaged properties or any other property and assets belonging to the Defendants till the aforesaid adjudicated debt amount is recovered from the defendants,

2. 6) The Receiver appointed in the matter stands released. Learned Recovery Officer shall appoint new Receiver in the RC proceedings.

3. 7) Let the certificate of recovery be drawn up forthwith in Form no. 31 and put up for signature in terms of provisions contained in Section 19(22) of the Recovery of Debts And Bankruptcy Act, 1993 for issuance by the Tribunal.

4. 8) The Recovery Officer shall realize the amount as per the Recovery certificate from the defendants according to the law.

5. 9) All the IAs stand disposed of. TA/727/2001 is disposed of.

Copy of the judgment be given/sent to the parties.

Judgment dated 14^th June, 2019 signed and pronounced in open Tribunal today.

( M.S. RAO ) 14-06-2019

Presiding Officer

Kolkata Debts Recovery Tribunal No.2