BANK OF INDIA vs GAUTAM DHAR AND ORS on 20 July 2020

1. MR GAUTAM DHAR, Son of Late Arun Kumar Dhar, residing at _

(a) HB-218, Sector-3, salt Lake city, Kotkata_7oo106, and at (b) 197, Banamali Banerjee Road, Thakurpukur, p.S. Thakurpukur, Kotkata_700082 And Office Address at _

(c) C/O M/S U G Con.ume-r Health Care (p) Ltd., CF_1S1, Sector-1, Satt Lake, Kotkata_700064 aI within ihe jurtsdiction of the Ld. Tribu nal.

2. MR SOM SANKAR DHAR, Son of Late Kalyan Kumar Dhar, residing at_

(a) HB-218, Sector-3, Salt Lake City, Kotkata_7oo106, and at (b) 197, Banamali Banedee Road, Thakurpukur, p.S. Thakurpukur, Kotkata-700082/ both wtthin the jurisdiction ofthe Ld. Tribunat,' And Office Address at _

(c) C/O M/S IiSCO (SAIL), Chiria Iron Ore Mines, East Singhbhum, Jharkhand outside the jurisdiction of this Ld. T;ibunat.

3. MRS ISHANI DHAR, Wife of Shri Som Sankar Dhar, residing at _

(a) HB-218, Sector-3, Satt Lake City, Kotkata_700106, And Office at - (b) C/O M/S U G Conqrmer Heatth Care (p) Ltd., CF_151, Sector_1, salt Lake, Kolkata-700064 a within ihe lurisdiction of the Ld. Tribunal.

4. MRS. SASWATI BANEruEE, residing at 2OB, Centrat park, Jadavpur, P. S. Jadavpur, Kolkata-700032, A-

And Office at - ClO M/S South Point School, 16, I"landevilla Gardens, Kolkata-770019 both within the jurisdiction of the Ld. Tribunal.

5. MR. SACHINDM NATH ROY, Son of Late Khirode Chandra Roy, 2416/1, Hatidevpur Road, P.S. Thakurpukur, Kolkata-700082 within the jurisdiction of the Ld. Tribunal. Counsel for the Applicant Bank: - Counsel for the Defendants: - Mr. Pradip Kumar Set ex-parte on Defendants Sil, Ld Counsel 02.01.2020

1. JUDGEI'4ENT This is an Original Application made under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 initiated by the applicant against the defendants praying for issuance of Recovery Certificate to the tune of Rs. 15,99,087/- together with interest, cost and other usual reliefs. The instant Original Appllcation being Case T.A. No. 18 of 2015 arising out of No. o.A. 452 0f 2oo9 was filed on 16,07.2009 before the oRT- II, Kolkata for recovery of a sum of Rs. 15,99,087/- due and payable from the defendants No. 1, 2, 3, 4 jolntly and severally towards outstanding dues as on 30.06.2009 in respect of the Housing Loan facilities for the limit of Rs. 18,OO,OOO/- sanctioned and granted by the Applicant Bank to the Borrowers/Defendants No' 1 & 2 for purchase of two storied residential building situated at Premises No' 197, Banamali Road, Kolkata-7ooo82 from the Defendant No 5' The Defendant No' 5 in this case is a Proforma Party. The lnstant O'A No' 452 of 2009 had been filed before the DRT-II, Kolkata within the period of limitation and within the jurisdiction of the Hon'ble Tribunal' Subsequently, the O.A. has been transferred to this Hon'ble DRT-IU, Kolkata and renumbered as T.A. No. 18 of 2015'

2. 0r

The brief facts of the case as made out in the Original Application by the applicant bank is that the defendants No. 1 & 2 made a request to the applicant's branch at Rash Behari Avenue, Kolkata on 04.72.2004 for a houslng loan of Rs, 18,00,000/- to purchase a house and submitted requisite information to secure the loan. The Defendants No. 3 & 4 furnished their personal information as guarantors. The Applicant Bank having given due consideration and after proper scrutiny of the application dated 4th December, 2009 submitted by the Borrowers, being the Defendants No. 1 & 2, backed by guarantee provided by the Guarantors being the Defendants No.3 and 4, sanctioned a Housing Loan of Rs. 18,00,000/- only to the Borrowers, to be repaid by 120 equal monthly installments of Rs. 21,870/- vide its sanction letter dated 14.01.2005. The defendants on acceptance of the terms and conditions as contained in the sanction letter dated 4.01.2005 and as stipulated ln Annexure-B of the said letter sanctioning the house loan executed certain documents backed by guarantee provided by two guarantors and a Demand Promissory Notes for Rs. 18,00,000/-, as stipulated in Annexure-C. with a promise to pay a total sum of Rs. 18,00,000/- to the Applicant Bank on demand wlth interest thereon with monthly rest.

4.

5. The defendants No. 1 & 2, to secure the said housing loan executed term loan agreement on 14.01.2005 in favour of the applicant for Rs. 18.00,000/- agreeing to Pay interest @ 8o/o per annum with monthly rests and the loan would be repald in 120 equal monthly installments of Rs.2l,87O/- on and from 28.02.2005 and the immovable property of two storied residential building situated at 197, Banamali Banerjee Road, Kolkata-700082 would be kept as security as stipulated in Annexure - 'E'. A.

6. To secure the loan of defendants No. 1 & 2 with the applicant, the defendants No. 3 & 4 jointly and severally agreed and guaranteed for payment of Rs. 18,00,000/- together with lnterest thereon or on such sum as might be due @ 8.00% per annum or at such other rate of interest. The defendants No. 3 & 4 agreed to make payment and discharge on demand of all amount due and payable by the defendants No. 1 & 2 to the applicant at any time in respect of "Star Home" loan availed of by the defendants No. 1 & 2 as stipulated in Annexure -'G'. The defendants had executed the following banking documents: A) The Defendants No. 1 & 2 as borrowers: i) A Demand Promissory Notes for Rs. 18,00,000/- dated 14.01.2005.

ii) The Loan bearer letter dated 14.01.2005 of Rs. 18,00,000/-.

lii) Documents relating to ICICI Prudential Life lnsurance Policy No. 07744491.

lv) Deed of Conveyance relating to properties so mortgaged' B) The Defendants No. 3 & 4, as guarantors: The letter of Personal Guarantee executed by the defendants No' 3&4. The Defendants No. 1, 2, 3 & 4 had agreed to pay interest @ 8olo per annum the present lending rate with monthly rests and penal interest @2olo p€r annum on 14.01.2005. Rate of interest is subject to change from time to time. The Defendants enjoyed the money from the aforesaid loan but failed to operate both the Cash Credit and Term Loan accounts effectively and as a result of which the loan accounts became irregular NPA and for which the Appllcant had issued letter dated 23 03 2009 under section 13(2) of the SARFAESI Act, 2OO2 demanding a payment of Rs'

7.

8.

9. a-

10.

(s) 11,63,031/- towards the loan outstanding as on 31.07.2007. The Borrowers being the Defendants No. 1 & 2 and the Guarantors being the Defendants No. 3 & 4 failed and neglected to pay their outstanding amount in spite of Legal Notice served through Advocate on 23.03.2009 and subsequent Demand Notice on 06'07.2009 as stipulated in Annexure - 'O'. A sum of Rs. Rs. 15,99,087/- 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 appllcant bank had filed this Original Application for the recovery of the aforesaid amount and for the issuance of Recovery Certificate against the defendants. Notices were lssued to the defendants to show cause as to why the relief prayed for by the applicant bank be not granted. After issuance of the notice, the defendants appeared through their counsel and prayed tlme for filing of W.S. But no W.S. was filed on behalf of the defendants as a result of which they were proceeded ex-parte vide order dated 02.01.2020 of this Tribunal. The Tribunal had no other option but to hear ex-parte against the defendants' I have heard the learned Counsel for the applicant bank and have perused the relevant documents. The defendants had not contested the case of the applicant bank. Thus, the point for determlnation in this case is (i) whether the claim of the applicant bank is wlthin time? (ii) Whether the defendants had utilized the loan facilitles granted by the bank? (iii) Whether the defendants are liable to pay the amount due to the applicant bank or not? The applicant bank by oral and documentary evidence has establlshed its case. The documentary evidence comprises from Annexure/Exhibit- o-

11.

72.

13.

15. 'A' to Annexure 'P', which are available in paper book filed by the applicant bank.

74. From the perusal of the documents referred above and the certified copy of the statement of account, which is filed as Annexure'A'-'P', it is established that the defendants had availed the financial facillties from the applicant bank and had withdrawn the amount through the account. The oral testimony comprises of an affidavit of Shri Sanjay Bhattacharyya, working as Chief Manager of the Applicant Bank. The averments in the application and the facts stated by the witness of the applicant in hls affidavit are un-rebutted. From the perusal of the of the Statement of Account which is Annexure 'P',the total outstanding comes to Rs. 15,99,087/- as on 30.06.2009, which the applicant bank is entitled to recover from the defendants. In view of the above discussion and after considerlng 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 entitled to recover a sum of Rs. 15,99,087/- 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 @ 9.25% per annum compounded from the date of filing of the Original Application till the date of realization.

ORDER

(1) T.A. No. 18 of 2015 filed by the Applicant Bank is allowed and debt is determined with cost against the defendants. It is hereby ordered that applicant bank is entitled to recover from the defendants the total amount to the tune of Rs.15,99,087/-

10. t7. OL

(Rupees fifteen lakhs ninety nlne thousand and eighty seven) with pendentelite and future interest @ 9.25o/o per annum with simple on the amount due from the date of flling of the Original Application, i.e. 16.07.2009 till full and final reallzation of the claim amount.

(2) Amount, if any, paid by the defendants in the loan accounts or amount, if any, recovered by the Applicant Bank after filing of the O.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 disPoslng, alienating or deallng wlth any of the properties belonging to them tlll the aforesaid decretal debt is recovered from the defendants.

(4) Defendants are given a tlme of thirty days from the date of the Judgement/Final Order for repaying of the above mentioned dues. so intlmated to them. In case the defendants fall to pay the dues within the above mentloned time, the applicant bank is entitled to recover its dues by sale of secured assets, if any' Applicnnt bank is also entltled to proceed against personal propertles of the defendants (both movable and immovable) and also proceed against the defendants personally to recover the dues ln accordance wlth Law.

(5) Let the Certificate of Recovery be drawn up by Ld' Registrar forthwlth in terms of Judgement 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 certincate'

(6) Ld. Recovery Officer shall realize the amount as per the Recovery Certificate from the defendants in accordance with law' a-

(7) Ld. Registrar of this Tribunal is directed to deliver recovery certificate in terms of the final order /judgement for recovery of the sum against the defendants in favour of the Applicant Bank under Section 19 (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.

(8) The parties are directed to appear before the Recovery Officer on 28.09.2020 for further action in accordance with law in the event the entire amount is not paid by the said date. Accordingly, the Original Application being T.A. No 18 of 2015 is allowed and stands disPosed of. Copy of the ludgement/Final Order be uploaded ln the Tribunal's website. File is consigned to the Record Room' ( Dictaied to Steno, transcribed by him, corrected' signed and p.onounced by me in thelnen Court on this therh day of luly' 2o2o) h}"r[* / lq' cr^;'-* ( AN]L KUMAR CHATURVED] ) PRESIDING OFFICER.

Order Sheet (Continuation) Bank of InaE Vs. Nlrrcautam Dhar & ors' Gse no. rl ?{o. 1a of 2015 Office action with dat€ and dated Signature Order with signature Order pronounced (Vide separate sheets)' In the result, T.A. No. 18 of 2015 is allowed with costs' Issue Recovery Certiflcate accordingly' A K- al^'+'"*tlt. (A.K.Chaturvedi) Presiding Officer DRT-3,Kolkata Order No.11 or+ .ot.zozo '290"