UNITED BANK OF INDIA vs MD KHALID ANWAR AND ORS on 20 July 2020

1. Md. Khalid Anwar, At : 86/C, A.P.C. Road, Kolkata - 700 009.

2. Shri Qamarismat Khalid, At : 86/C, A.P.C. Road, Kolkata - 700 009.

3. Shri Sekhar Kumar Biswas, At : 121l5 B, Manaharpukur Road, (Ground, First & Second Floor), Kolkata - 70O 026.

4. Shri Swapan Mallick, Part No.96, Chand Para, Dist. 24 Parganas (North). Counsel for the Applicant Bank: - ... Shri Debasish Chakrabarti. Counsel for the Defendants No.1 & 2:- ... Smt. Papiya Mukherji Dutta. Counsel for the Defendants No.3 & 4:- ... Set ex-parte on 19.0 6. 2 01 3 ]UDGEIYENT

1. This is an Transfer Application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutaons Act, 1993 initiated by the Applicant Bank against the defendants no.1 to 4 praying for issuance of Recovery Certificate to the tune of Rs.15,87,069.71 together with interest, cost and other usual reliefs.

2. The brief facts of the case as made out in the Transfer Application by the applicant bank is that the defendants no.1 and 2 had approached the applicant bank on 20.02.2005 for grant of a housing loan for the c,

3. purpose of purchasing a FIat wherein the defendants no.3 and 4 had stood as guarantors. For taking the housing loan, a deed of agreement was executed between the owner, developer and the defendants no.1 and 2 wherein the said developer had agreed to sale the said flat to the defendants no.1 and 2 for a tune of Rs.18.00 lakhs. The applicant bank after examining the feasibility of the said proposal and on the request of the defendants had sanctioned a term loan of Rs.18.00 lakhs on 25.02.2005 in favour of the defendants no.1 and 2 with certain terms and conditlons which was accepted by the defendants. It was also stipulated in the sanction letter that the said amount shall be payable in 240 equal monthly installments @ Rs.16,144.00 commencing from two month after disbursement. To avail the above loan limit, the defendants had executed various loan documents on 14.03.2005 in favour of the applicant bank. To secure the above loan facility, the defendants no.1 and 2 had created equitable mortgage of their Flat in favour of the applicant bank by depositing the original title deed in the Bank on 24.03.2005. After availing the loan, the defendant no.1 and 2 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 on 30.06.2007. A sum of Rs.15,87,069.71 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 O-

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5. for the recovery of the aforesaid amount and for the issuance of Recovery Certificate against the defendants. Notices were issued 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 no.1 and 2 had appeared through their Counsel and had filed their show cause reply. Oespite service, the defendants no.3 and 4 had neither appeared nor had filed their show cause reply. Consequently, the defendants no.3 and 4 were set ex- parte on 19.06.2013. The Tribunal had no other option but to hear ex- parte against the defendants no.3 and 4. In the written statement filed by the defendant no.1 and 2, it has been submitted that the application is barred under the relevant provisions of Evidence Act and Contract Act. These defendants initially did not agree to purchase the said flat since the consideration money of the said flat was out of the reach of the financial capacity of these defendants. The developer/promoter, Mr. Asim Bose with his associates convinced these defendants that he will arrange Bank loan from applicant bank and these defendants would not face any trouble and difficulty except only signlng some papers and documents to be submitted. These defendants believing the said representation of the said Developer entered into agreement for sale dated 16.02.2005 for a total consideration of Rs.27,97,250.00 for the terms and conditions mentioned therein. After the execution of the aforesaid agreement for sale, the said developer brought the defendant no.1 before the said Branch omce of the applicant bank and introduced hlm to Branch Manager, Shri Ranjit Acharya who assured the defendant no.1 to provide bank loan to the tune of Rs.18.00 lakhs in order to purchase the said flat and the said Ranjit Acharya also confirmed that the defendant no.1 would have to o- spend a sum of Rs.40,000.00 in cash towards cost and expenses to be incurred for processing and sanctioning the said loan and as per thelr demands the defendant no.1 paid the said sum of Rs.40,000.00 in cash to the said Branch Manager in presence of Shri Asim Bose and his associates. The said Asim Bose wlth his associates brought these defendants to the Branch of the appllcant bank and these defendants were requested by the said Branch Manager to sign on some blank papers and documents and these defendants initially did not agree to sign those blank documents but the Branch Manager and also said Asim Bose with his associates convinced these defendants that loan to be sanctioned within a short time and therefore in order to save the time, the slgnature of these defendants are very much necessary on those blank papers and documents and the said Branch Manager also asked that those blank documents and papers would be filled up in course of the day as per Bank's norms. The fact remains that registration of deed of conveyance was completed on 24.03.2005 and the said Asim Bose kept the original IGR and the possession letter in his custody and also took back the original agreement from these defendants on the plea that all those documents to be submitted before applicant bank. These defendants were completely unaware as to what actually happened but thereafter inspite of repeated demand and request, the said Asim Bose did not deliver the possession of the said flat to these defendants. After being crystal clear with regard to the fraudulent game played by the said Aslm Bose wlth his associates and the said Branch Manager, the defendant no.1 initiated a complaint case no.931 of 2006 before the ld. Addl. chief Judicial Magistrate at sealdah under sectlon 406/420/465/467/468134/1208 of the Indian Penal Code against the o\_

said Branch Manager, Shri Ranjit Acharya and the said Asim Bose and his associates, namely, Soumit Bhadra and Aslam Hussain and after the summon being served, the said Branch Manager alongwith said Asim Bose immediately met to the defendant no.1 on 15.01.2007 and requested him for an amicable settlement of the dispute and to withdraw the case. After a discussion, it was settled that the said Asim Bose would pay to these defendants a sum of Rs.3,97,250.00 which was paid by these defendants to the said Asim Bose as and by way of advance money under the agreement for sale dated 16.02.2005 and also the said Asim Bose agreed to pay back the outstanding dues in the said loan account to the applicant bank. The applicant bank did not take any steps for disposal of the said Flat except only adding interest to the loan dues and appropriating the FDR of Rs.4.OO lakhs made by these defendants with interest against the alleged outstanding dues without any knowledge of these defendants to that effect. If the said Flat was disposed of by Bank immediately a good amount of consideration money could be fetched over and above the outstanding dues of loan account and accordingly the said loan outstanding dues could have been liquidated a long back even without appropriating the said FDR of Rs.4.00 lakhs with interest in the said loan Account. Bank most illegally appropriated the said FDR of Rs.4.OO lakhs with interest against the alleged outstanding dues prior to the said flat being disposed of after getting consent whom these defendants vide letter dated 26.06.2007, Lastly the defendants had denied the entire allegations made by the applicant bank in their T.A. and submitted that the defendants is still relying on the letter dated 26.06.2007 and they have no objection if the Flat is sold at a highest market price for aPpropriation against the actual outstanding dues prior to appropriation of the FDR of Rs.4 00 O-

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11. lakhs with interest as will be adjudicated by this Tribunal and thereafter to refund back the excess money to these defendants alongwith FDR of Rs.4.00 lakhs with the interest, The defendants no.1 and 2 has filed their evidence-on-affidavit in support of their written statement. The applicant bank has not filed their rejoinder to the written statement of defendants no.1 and 2. I have heard the learned Counsel for the applicant bank and have perused the relevant docu ments. 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 ? (ii) Whether the defendants had utilized the loan facilities granted by the bank? (iii) Whether all the defendants are 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 Annexu relExh iblt- N, which are available in paper book filed by the a pplicant bank. From the perusal of the records, it is seen that the appllcant had sanctioned a houslng loan of Rs.18.00 lakhs in favour of the defendants no.1 and 2 and the relevant documents were executed on 14.03.2005. By the execution of the said documents dated 14.03.2005, the limitation available to the bank for filing the Original Application was upto 13.03.2008 whereas the T.A. had been filed on 01.02.2008 (i.e. O.A. No.11 of 2008) well within the period of limitation. In view of the above, the Transfer Application is well within time. ar-

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13. From the perusal of the documents referred above and the certified copy of the statement of account, whlch is filed as Annexure/Exhibit-N, it is established that the defendants no.1 and 2 had availed the financial facilities from the applicant bank and had withdrawn the amount through the account. The oral testimony comprises of an affidavit of Shri Subodh Kumar Sharma, S/o. Bihari Lal Sharma, working as Senior Manager, United Bank of India, Bowbazar Branch, 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 no.1 and 2 was sanctioned a housing loan facility of Rs.18.00 lakhs and the relevant documents were executed on 14.03'2005' He has also proved the executlon of the documents by the defendants alongwith guarantee agreement executed by the defendants no'3 and

4. Thus, from the oral and documentary evidence the applicant bank has established its case. The appllcant 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. The contention of the written statement is not acceptable and it is only to delay the proceedings. The defendants no'1 and 2 admitted in their written statement that the applicant bank was sanctioned a loan in favour of the defendants. The defendants are completely denied all the allegations made by the applicant bank in their T A and mere complete denial is only to avoid the payment of legal debt of the bank and the defendants availed the loan, purchased a Flat and the said Flat

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was mortgaged in favour of the applicant bank for the purpose of availing the loan. Further, in para no,(q) at Page-13 of written statement of defendants no.1 and 2, they have submitted that they have no objection if the Flat is sold at a highest market price for appropriation against the actual outstanding dues prior to appropriation of the FDR of Rs.4.00 lakhs with lnterest as will be adjudicated by this Tribunal and thereafter to refund back the excess money to these defendants alongwith FDR of Rs.4.00 lakhs with the interest, The issue before this Tribunal confined to certain specific amount borrowed by the T.A. defendants and default thereof. Ample opportunities were available to the T.A. defendants to bring on record any corogative evidence as why the amount default is not payable by them to that T.A. applicant. The objects of Recovery of Debt and Bankruptcy Act as amended after 1993 is to issue recovery certificate and recover back the default money from the defaulters to the main stream of the lending bank, so that, the cash liquidity of the lender is increased and they genuinely can avail the benefit. Hence, the objection raised by the T.A. defendants were duly considered and rejected. In the above circumstances, the Tribunal is not accepted the contention of the written statement of defendants no.1 and 2 and the same is only to delay the proceedings and the contentions of defendants are speculation in nature.

15. From the perusal of the Statement of Account, which is Annexure/Exhibit-N, the total outstanding comes to Rs.15,87,069.71 which the applicant bank is entitled to recover from the defendants. Since the defendants no.3 and 4 had stood as guarantors to the loan o\

Lb. availed by the defendants no.1 and 2, hence the liability of defendants no,3 and 4 to pay the said amount is joint and co-several with that of the principal borrower and hence, all the defendants are jointly and severally liable to repay the dues of the bank. 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 applica nt. The applicant bank has also claimed pendentelite and future interest @ 8.75o/o per annum with monthly rests. The interest of justice will meet if pendentelite and future interest is granted @ 8.75o/o per annum with simple. However, granting of compound interest with monthly rests shall be too harsh. 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 entitled to recover a sum of Rs.15,87,069.71 from the defendants no.1 to 4 who are jointly and severally liable for the same. The appllcant bank shall also be entitled to pendentelite and future interest on the said amount @ 8.75olo per annum with simPle from the date of filing of the Transfer Application till the date of realization.

ORDER

(1) T.A. No.262 of 2013 filed by the Applicant Bank is allowed and debt is determined with cost against the defendants no.1 to 4. It is hereby ordered that applicant bank is entitled to recover from the defendants the total amount to the tune of Rs.15,87,069.71 (Rupees Fifteen Lakhs Eighty Seven Thousand Sixty Nine and Paise Seventy One only) with pendentelite and

77. d- future interest @ 8.75olo per annum with simple on the amount due from the date of filing of the Transfer Application, i.e. 01.02.2008 (i.e. O.A. No.11 of 2008) till full and final realization of the claim amount. 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. 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. Defendants 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 fails to pay the dues within the above mentioned time, the applicant bank is entitled to recover its dues by sale of secured assets, if any. Applicant bank is also entitled to proceed against personal properties of the defendants (Both movable and immovable) and also proceed against the defendants personally to recover the dues in accordance with law.

(5) Let the Certificate of Recovery be drawn up by Ld. Registrar forthwith in terms of ludgement for issuance of the same aqainst 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.

(6) Ld. Recovery officer shall realize the amount as per the Recovery Certificate from the defendants in accordance with law. D_

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(7) 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 lnstitutions Act, 1993 now known as Recovery of Debts and Bankruptcy Act, 1993. Accordingly, the Transfer Application being T.A. No.262 of 2013 is allowed and stands disposed of. Copy of the Judgement/Final Order be upload in the Tribunal's we bsite. File is consigned to the Record Room. ( Dictated to P.S., transcribed by.him, corrected, sign-ed and pronounced by me in the ooenlCoult on this the!t:l day of Ur,t' ZOZO ) t'rY+".l]- ;LP - J dit '^ A'F cA'q-"FA ( ANIL KU[4AR CHATURVEDI ) PRESIDING OFFICER.

Order Sheet (Continuation) Case No. T.A. No.262 of 2013 Order pronounced separate s eets). with costs. In the result, T.A. No.262 of 2013 is allowed Issue Recovery Certificate accordingly. A'K''"1'5-\r^r' (A.K.Chaturvedi) Presiding Officer, DRT-3, Kolkata. United Bank of Ind ia. Vs. Md. Khalid Anwar & Ors Oflice action wrth date and dated Signature ol parties when nacecsary D.te of

Order

Order No,27 *.oT.2o2o '?e6- Order with Signature