BANK OF BARODA vs SMT. JAYITA CHAKRABORTY AND ORS on 16 March 2020

1. Smt. layita Cha kraborty, W/o. Shri Bipla b Chakraborty, 237 /8, Pathak para Road, Kolkata - 700 060. AND Village&P.O.:purbas Nischintapur, Birla New Road, Dist. 24 pa rganas (South), PrN - 743 319.

2. Shri Biplab Chakraborty, S/o. Bipadbhanjan Chakraborty, 23718, Pathakpara Road, Kotkata - 700 060. AND Village & P.O.: purbas Nischintapur, Birla New Road, Dist. 24 Parganas ( South), PrN - 743 319.

3. Shri Pulak Mondal, S/o. Late Balaram Mondal, 89, Chandita la Road, Budge Budge, Kotkata - 700 137. AND 106, Pathak para Road, Kolkata - 700 060. ... Defendants. Counsel for the Applicant Bank: - ... Shri l4anoj Kumar Singh. Counsel for the Defendants No.1 to 3:- ... Shri S. tvtondal. ]UDGEMENT

1. This is an Transfer Application under Section 19 of the Recovery of Debts Oue to Banks and Financial Institutions Act, 1993 initiated by the Bank of Baroda, Behala Branch, 293/2, Diamond Harbour Road,

Kolkata against the defendants no.1 to 3 praying for issuance of Recovery Certificate to the tune of Rs.13,06,000.00 together with interest, cost and other usual reliefs. The brief facts of the case as made out ln the Transfer Application by the applicant bank is that the defendants no.1 and 2 were enjoying credit facilities in the nature of cash credit facility for a sum of Rs.100 lakhs. When the matter stood thus, the defendants had approached the applicant bank to take over their existing housing loan with Dena Bank, Budge Budge Branch, in respect of land with structure lying and situated at Kolkata. The said property was also extended as a collateral security towards the loans availed by the defendants from the applicant bank. When the matter stood thus, the defendants had approached the applicant bank on 26.07.2006 to take over the housing loan from Dena Bank. The applicant bank considering the same took over the housing loan account from Dena Bank. The said loan in addition to the equitable mortgage created by deposit of the title deeds in respect of the said land with structure of the immovable property in favour of the applicant was also secured by the personal guarantee of defendant no.3. On 31.07.2006, the applicant bank taking over the housing loan from Dena Bank, Budge Budge Branch, sanctioned a housing loan for a sum of Rs.9.75 lakhs in favour of defendants with certain terms and conditions, which was accepted by the defendants. It was also stipulated in the sanction letter that the said amount shall be payable in 180 equal monthly installments of Rs.10,182.00 which commence From August, 2006. To avail the loan of Rs.9.75 lakhs, the defendants had executed various loan documents on 01.09.2006 in favour of the applicant bank. a)\

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3. After availing the loan, the defendants had utilized the said loan amount and operated the loan account at the initial stage but subsequently the defendants had failed to operate the said loan account in terms of the agreement between the parties as a result of which the loan account became irregular. By notice, the applicant had requested the defendants to regularize the loan account and repay the outstanding dues but the defendants had failed to regularize the account or repay the outstanding dues and as such, the loan was classified as NPA. A sum of Rs.13,06,000.00 is due against the defendants which the defendants had not paid despite repeated demands and request. Finding no other way to recover the dues of the bank, the applicant bank had filed this Transfer Application for the recovery of the aforesaid amount and for the issuance of Recovery Certificate against the defendants. Notice was issued to the defendants to show cause as to why the relief prayed for by the appllcant bank be not granted. After issuance of the notice, the defendants had appeared through their Counsel and had filed their written statement. The defendants had filed their written statement. However, they had not filed their evidence-on-affidavit in support of their written statement. As per Section 19 (10B) of The Recovery of Debts and Bankruptcy Act. 1993, "If any of the facts or pleadings in the application or written statement are not verified in the manner provided under Sub-Section ( 10A), a party to the proceedings shall not be allowed to rely on such facts or pleadings as evidence or any of the matters set out therein." Therefore, the written statement filed by the defendants is not relied on by this Tribunal while deciding the matter in the present T.A, O,

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7. I have heard the learned Counsel for the parties and have perused the relevant documents. On the perusal of the pleadings, the only issue which arise for consideration is (i) Whether the claim of the applicant bank is within time ? (il) Whether the defendants had utitized the loan facility granted by the bank ? (iii) whether the defendants were liable to the amount due to the applicant bank or not ? The applicant bank by oral and documentary evidence has established its case. The documentary evidence comprises from Annexure/Exhibit- A to Annexure/Exhibit-A,/12, which are avallable in paper book filed by the applicant bank. From the perusal of the records, it is seen that the applicant had sanctioned a housing loan to the tune of Rs.9.75 lakhs in favour of the defendants and the relevant documents were executed on 01.09.2006. By the execution of the said documents dated 01.09.2006, the limitation available to the bank for filing the Transfer Application was upto 01.09.2009 whereas the T.A. had been filed on 07.10,2010 (i.e. o.A. No.1507 of 2010). since it is a mortgage suit, hence the limitation available to the bank for filin9 the Original Application was 12 years i.e. upto 01.09.2018, whereas the O.A. had been fited on 07.10.2010 we within the period of timitation. Accordingly, it is held that the original Application is within the limitation. From the perusal of the documents referred above and the certified copy of the statement of account, which is filed as Annexure/Exhibit_ A/12, it is established that the defendants had availed the financiat facility from the applicant bank and had withdrawn the amount through the account. a\ B.

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13. The oral testimony comprises of an affidavit of Shri Jitendra Kumar, S/o. Shri Nawin Chandra Prasad, working as Chief Manager, Bank of Baroda, Behala Branch, At : 293/2, Oiamond Harbour Road, Kolkata. The averments in the application and the facts stated by the witness of the applicant in his affidavit are unrebutted. His statement finds corroboration from the documentary evidence on records and the Statement of Account. Therefore, there is no reason to disbelieve the evidence adduced on behalf of the applicant bank. He had established that the defendants were sanctioned a home loan to the tune of Rs.9.75 lakhs and the relevant documents were executed on 01.09.2006. He has also proved the execution of the documents by the defendants. Thus, from the oral and documentary evidence the applicant bank has established its case. The applicant bank has proved that the application is within time, the Tribunal has territorial jurisdiction and the rate of interest charged as per the terms of the agreement entered into between the applicant bank and the defendants.

14. From the perusal of the Statement of Account, which is Annexure/Exhibit-A/12, the total outstanding comes to Rs.13,06,000.00 which the appticant bank is entifled to recover from the defendants. The certified copy of the Statement of Account is admissible in evidence under Section 4 of the Bankers Books Evidence Act and on the basis of the said certified copy of the Statement of Account; an award can be made in favour of the applicant.

15. The applicant bank has also claimed pendentelite and future interest @ 12.5o/o per annum with monthly rests. The interest of justice will meet if pendentelite and future interest is granted @ 12,So/o per annum with simple. However, granting of compound interest wlth monthty rests shall be too harsh. a.

16. In view of the above discussion and after considering the entire evidence-on-affidavit of the applicant bank and the documents filed by the applicant bank, I have no hesitation to hold that the applicant bank is entiued to recover a sum of Rs.13,06,000.00 from the defendants who are liable for the same. The applicant bank shall also be entitled to pendentelite and future interest on the said amount @ 12.5a/o per annum with simpte from the date of filing of the Transfer Application tifl the date of realization.

ORDER

(1) T.A. No.1419 of 2015 filed by the Appticant Bank is a owed and debt is determined with cost against the defendants. It is hereby ordered that applicant bank is entifled to recover from the defendants the total amount to the tune of Rs.13,06,000.00 (Rupees Thirteen Lakhs Six Thousand only) with pendentelite and future interest @ t2.5o/o per annum wath simple on the amount due from the date of filing of the Transfer Apptication, i.e. 07.t2.2OfO (i.e. O.A. No.15O7 of 2010) till full and final realization of the claim amount.

(2) Amount, if any, paid by the defendants in the loan account or amount, if any, recovered by the Applicant Bank after filing of the T.A. the same be taken into account while arriving at the exact amount of dues/debt payable by the defendants. Accordingly, pendentelite and future interest shall be calculated on the reduced amount.

(3) Defendants are debarred from disposing, alienating or dealing with any of the properties beronging to them ti, the aroresaid decretal debt is recovered from the defendants.

(4) Defendants are given a time of thirty days from the date of the ludgement/Final Order for repaying of the above mentioned dues, so intimated to them. In case the defendants fails to pay the dues within the above mentioned time, the applicant bank is entifled to recover its dues by sale of secured assets, if any. Applicant bank is also entifled to proceed against personal properties of the defendants (Both movable and immovabte) and o- (s)

also proceed against the defendants personally to recover the dues in accordance with law. Let the Certificate of Recovery be drawn up by Ld. Registrar forthwith in terms of ludgement for issuance of the same against defendants in favour of the applicant bank under Section 19 (22) of the Recovery of Debts and Bankruptcy Act, 1993 and put up the same for issuance of the Certificate. Ld. Recovery Omcer shall realize the amount as per the Recovery Certificate from the defendants in accordance with law. Ld. Registrar of this Tribunal is directed to deliver recovery certificate in term of the final ordey'judgement for recovery of the sum against the defendants in favour of the Applicant Bank under Section 79 (22) of the Recovery of Debts due to the Bank and Financial Institutions Act, 1993 now known as Recovery of Debts and Bankruptcy Act, 1993. Accordingly, the Transfer Apptication being T.A. No.1419 of 2015 is allowed and stands disposed of. Copy of the Judgement/Final Order be upload in the Tribunal,s website. File is consigned to the Record Room.

( Dictated to p.S., transcribed by him, me in the open Court on this the 16rh corrected, signed and pronounced day of Ntarch, 2O2O ) z4'k C*,s-^t""'t ANIL KUMAR CHATURVEDI ) PRESIOING OFFICER. by

Order Sheet (Continuation) Caso No. T.A. No.1419 0f 2015 Order pronounced (Vide separate sheets). with costs. In the result, T.A. No.1419 of 2015 is allowed Issue Recovery Certificate accordingly. Bank of Baroda Vs. Smt. Jayita Chakraborty & Ors. Otlice action wlth d.te .nd dated Sagnature ol panles when ntcecSiry Drlo ol

Order

Order No.19 16.0 3.2 020 1,,.v. u".*,,-rfi;jlS.u (A.K.Chaturvedi) Presiding Officer, DRT-3, Kolkata.