INDIAN BANK vs BIPUL ROY & ANR on 20 July 2020

JUDGEMENT

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. 2,68,61,155/- together with interest, cost and other usual reliefs. The instant Original Application being Case T.A' No 158 of 2013 arising out of No. O.A. 164 ot 2Ol2 was filed on 14.02'2OL2 before the DRT-II, Kolkata for recovery of a sum of Rs. 2,68,61,155/- due and

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3. t2) payable from the defendants No. 1 and 2 jointly and severally towards outstanding dues as on 31.12.2011 in respect of the cash credit loan to the tune of Rs. 2,75,OO,OOO/- sanctioned and granted by the Applicant Bank to the Borrower/Defendant No. 1 for working capital by way of C/C Account and on 29.01.2010 an adhoc limlt of Rs' 55,0o,OOO/- over and above the previous sanctioned limit of Rs' 2,75,OO,OOO/-. The instant O.A. No 164 of 2012 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'III, Kolkata and renumbered as T A' No. 158 0f 2013. The brief facts of the case as made out in the Orlginal Application by the applicant bank is that the defendant No. 1 made a request to the applicant's branch at Hridaypur, Oistrict North 24 Parganas on f4.L2.20O7 for a working capital and for cash credit facilities of Rs' 5,OO,OO,OOO/- and submitted requisite information by way of exclusive hypothecation of entire stock, book debts and current assets of the firm, both present and future to secure the loan The Defendant No' 2 as guarantor. furnished his Personal information including equitable mortgage charge on two storied building and Property as commercial space. The Applicant Bank having given due consideration and after proper scrutiny of the application dated 14th December, 2007 submitted by the Borrower, being the Defendant No l backed by guarantee provided by the Guarantor being the Defendant No 2' sanctioned a cash credit loan for limit of Rs' 2.75,00,000/- only vide its sanction letter dated 24.01.2008 and on 29'01'2010 an adhoc limit of Rs. 55,OO,O0O/- over and above sanctioned limit of Rs 275 lakhs to the Borrower, to be repaid within one year The defendant on acceptance of the terms and conditions as contained in the sanction letters dated 24.01'2oOB and 29'01'2010 and as

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5. stipulated in Annexure-'A' executed certain documents backed by guarantee provided by the guarantor, being Defendant No' 2 and a Demand Promissory Notes for Rs. 2,75,00,000/-, as stipulated in AnnexurerE', with a promise to pay a total sum of Rs. 3,30,00,000/- to the Applicant Bank on demand with interest thereon with monthly rest. The defendant No. 1, to secure the said cash credit loan facilities, executed personal guarantee Agreement for Hypothecation executed on 24.01.2008 and the Defendant No. 2 executed mortgage confirmation letter on 29.01.2010 in favour of the applicant for Rs' 2,75,OO,OOO1- agreeing to pay interest @ 2olo per annum over the Allahabad Bank's Prlme Lending Rate which was 13.25olo with monthly rests on floating rate of interests and deposited several Title Deeds of immovable properties situated at Jessore Road and Noapara, Barasat, Kolkata-700124, which would be kept as security as stlpulated in Annexure - 'B' and Annexure -'C'.

6. To secure the loan with the applicant, the defendant Nos l & 2 jointly and severally agreed and guaranteed for payment of Rs' 3,30,00'000/- together with interest thereon or on such sum as might be due @ 2.00o/o per annum over the Allahabad Bank's Prime Lending Rate which was 73.250/o per annum with monthly rests on floating rate of lnterests. The defendant No. 2 agreed to make payment and discharge on demand of all amount due and payable by the defendant No' 1 to the applicant at any time in respect of Cash Credit loan facilities availed of by the defendant No. 1 as stipulated in Annexure -'G"

7. The defendants No. banking documents: 1& 2 as borrowers had executed the following a- i) ii) iii) iv) Agreement for Hypothecation dated 24.01.2008 and 29.01.2010 Demand Promissory Notes by the Defendant No. 1 dated 24.01.2008 and 29.01.2010 Deed of Conveyance relating to properties so mortgaged. Personal Guarantee executed by the defendants No. 1 & 2 on 24.01.2008 and 29.01.2010. The defendant had agreed to pay interest @ 8olo Per annum the present lending rate with monthly rests and Penal interest @2olo Per annum on 14.01,2005. Rate of interest is subject to change from time to time. The defendant 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 Applicant had issued letter dated 29.04.2011 under section 13(2) of the SARFAESI Act, 2002 demanding a payment of Rs. 2,39,92,546/- towards the loan outstanding as on 31.03.2011. The Borrower being the Defendant No. 1 and the Guarantor being the Defendant No. 2 failed and neglected to pay their outstanding amount in spite of Legal Notice served on 29.O4.20LL as stipulated in Annexure - 'I'. A sum of Rs. Rs. 2,68,6L,L551- is due against the defendant which the defendant had not paid despite repeated demands and requests. Finding no other way to recover the dues of the bank, the applicant bank had Rled this Original Appllcation for the recovery of the aforesaid amount and for the issuance of Recovery Certificate aqainst the defendants. Notices were issued to the defendant to show cause as to why the relief prayed for by the applicant bank be not granted. After issuance of the notice, the defendant appeared through their Counsel and

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(s) prayed time for filing of W.S. But no W.S. was filed on behalf of the sole defendant as a result of which they were proceeded exparte vide order dated 03.01.2020 of this Tribunal. The Trlbunal 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 defendant had not contested the case of the applicant bank. Thus, the polnt for determination in this case is (i) whether the claim of the applicant bank is within time? (ii) Whether the defendant had utilized the loan facilities granted by the bank? (iii) Whether the defendant is liable to pay 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 'I', which are available in paper book filed by the applicant bank. From the perusal of the documents referred above and the certified copy of the statement of account, which is filed as Annexure 'A' - 'I', it is established that the defendant had availed the flnancial facilities from the applicant bank and had withdrawn the amount through the account. The oral testimony comprises of an affidavit of Shri Utpal Kumar Saha, working as Senior Manager of the Applicant Bank. The averments in the application and the facts stated by the witness of the applicant in this affldavit are un-rebutted. From the perusal of the Statement of Account which is at Annexure'H' the total outstanding comes to Rs. 2,68,61,155/- as on 31.12.2011, which the applicant bank is entitled to recover from the defendant.

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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 hesltation to hold that the applicant bank is entitled to recover a sum of Rs. 2,68,61,155/- 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 @ 2o/o per annum over the Allahabad Bank's Prime Lending Rate which was 13.25olo with monthly rests compounded from the date of filing of the Original Application till the date of realization. a_u_B

(1) T.A. No. 158 of 2013 filed by the Applicant Bank is allowed and debt is determined with cost against the defendant. It is hereby ordered that applicant bank is entitled to recover from the defendants the total amount to the tune of Rs. 2,68,61,155/- (Rupees two crores sixty eight lakhs sixty one thousand one hundred and fifty five only) with pendentelite and future interest @ 2olo per annum over the Allahabad Bank's Prime Lending Rate which was 13.25olo with monthly rests wlth simPle on the amount due from the date of filing of the Original Application, i'e.

14. LZ.ZOO7 till full and final realization of the claim amount.

Amount, if any, paid by the defendant 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. Defendants are debarred from disposing, alienating or dealing with any of the properties belonging to them till the aforesaid decretal debt is recovered from the defendants. t7.

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(4) Defendant are given a time of thirty days from the date of the Judgement/Final Order for repaying of the above mentioned dues, so intimated to them. In case the defendants fail to pay the dues withln the above mentioned time, the appllcant bank ls entitled to recover its dues by sale of secured assets, if any. Applicant bank is also entitled to proceed agalnst Personal properties of the defendants (both movable and immovable) and also proceed agalnst the defendants personally to recover the dues in accordance with Law.

(s) Let the Certificate of Recovery be drawn up by Ld. Registrar forthwith 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 Certiflcate.

(6) Ld. Recovery Offlcer 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 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. The parties are directed to appear before the Recovery Officer on 28.09.2020 for further action ln accordance with law in the event the entire amount is not paid by the said date.

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Accordingly, the Original Application being T.A. No. 158 of 2013 is allowed and stands disposed of. Copy of the Judgement/Final Order be uploaded in the Tribunal's website. File is consigned to the Record Room. ( Dictated to Steno, transcribed by him, corrected, signed and !ffi,n'"d bv me in "" "Tt*ffn this thgiFfls{ of rulv, ,q'K'4^..."*n ( ANIL KUMAR CHATURVEDI ) PRESIDING OFFICER. ff

Order Sheet (Continuation) Case No. TA No. 158 of 20t3 Allahabad Bank Vs. Sri Bipul Roy and Ani Date of

Order

Order with signature Offic€ action with date and dated Signature of parties when Order pronounced (Vide separate sheets), In the result, T.A. No. 158 of 2011 is allowed with costs. Issue Recovery Certifi cate accordingly. A'n a'o''".lt (A.K.Chaturvedi) Presiding Officer DRT-3,Kolkata