ASREC INDIA LTD vs M/S ANUPAMA TRADERS AND ORS on 20 July 2020

1. I4/s. Anupama Traders, 13, Royd Street, Kolkata - 16.

2. Shri Raghunath Prasad Shaw, 18/19, New Basti Titagarh, Kolkata - 700 119.

3. Smt. Kama la ba la Roy, P.O. & Vill. : Dhapdhapi, 24- Parga nas (South). AND Dudhnai, Baruipur, 24- Pa rganas ( South ). Counsel for the Applicant Bank: - ... Ms. M. Kanji. counset for the Defendant No.2:- ... Shri Suman Saha Counsel for the Defendants No.1 & 3:- ... Set Ex-parte on 18.11.2014 ]UDGEMENT

1. This is an Transfer Application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 initiated by the Applicant against the defendants no.1 to 3 praying for issuance of Recovery Certificate to the tune of Rs.61,16,176.17 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 is that the defendant no.1 firm had approached the applicant bank on 16.04.2003 for grant of financial assistance for its business wherein the defendants no.2 and 3 had stood as guarantors. oL-

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1. The applicant after examining the feasibility of the said proposal had sanctloned a credit facility to the tune of Rs.45.00 lakhs on 19.04.2003 in favour of the defendant no.1 firm with certain terms and conditions, which was accepted by the defendants. To avail the above loan the defendants had executed various loan documents on 19.04.2003 in favour of the applicant. To secure the above loan, the defendants no.1 and 3 had created equitable mortgage of their properties in favour of the applicant by deposlting the original title deeds before the applicant. After availing the loan, the defendant no.1 firm had utilized the said loan amount in its business 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. A sum of Rs.61,16,176.17 is due agalnst the defendants which the defendants had not paid desPite repeated demands and request. Finding no other way to recover the dues of the applicant, the applicant had filed this Transfer ApPlication for the recovery of the aforesaid amount and for the issuance of Recovery Certiflcate against the defendants. Notice was 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 defendant no.2 had appeared through his Counsel and had filed his written statement. Despite services, the defendants no.1 and 3 had neither appeared nor had flled their show cause reply. Consequently, the said defendants were set ex-parte on 18.11.2014. The Tribunal had no other option but to hear ex-parte against the defendants no.1 and 3. 6t_

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7. The defendant no.2 had filed his written statement. However, he had not filed his evidence-on-affidavit in support of his wrltten statement' As per Sectlon 19 (1OB) of The Recovery of Oebts 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 (1OA), a party to the proceedings shalt 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 defendant no'2 is not relied on by this Tribunal while deciding the matter in the present T'A' I have heard the learned Counsel for the partles and have perused the relevant documents. On the perusal consideration is ( ii) Whether the applicant ? (iii) to the applicant of the pleadings, the only issue which arise for

(i) Whether the claim of the applicant is within time ? defendants had utilized the loan facility granted by the Whether the defendants were liable to the amount due or not ? B. The applicant by oral and documentary evidence has established its case. The documentary evidence comprises from Annexure/Exhibit-A to Annexure-G, which are available in paper book filed by the applicant.

9. From the perusal of the records, it is seen that the applicant had sanctioned a credit facility to the tune of Rs 45 00 lakhs in favour of the defendant no.1 firm and the relevant documents were executed on 19.04.2003. By the execution of the said documents dated 19.04.2003, the limitation available to the applicant for filing the Transfer Application was upto 18.04.2006 whereas the T A' had been filed on 10.03.2008 (i.e. o.A. No.29 of 2008). since it is a mortgage suit, hence the limitation available to the applicant for filing the O.

10. Transfer Appllcation was 12 years i,e. upto 18,04.2015, whereas the T,A, had been filed on 10.03 2008 (i.e O.A. No.29 of 2008) well within the period of limitation. Accordingly, it is held that the Transfer 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-F' it is established that the defendants had avalled the financial facllity from the applicant and had withdrawn the amount through the account. The oral testimony comprises of an affidavit of Shri Arpan Chakraborty, S/o. Shri Sisir Kumar Chakravarty working as Manager (Legal), ASREC India Ltd., Room No.3O6A, 3'd Floor, Sree Krishna Busines Centre, 6, Waterloo Street, 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' He had established that the defendant no'1 firm was sanctioned a credit facility to the tune of Rs'45'00 lakhs and the relevant documents were executed on 19'04 2003' He has also proved the execution of the documents by the defendants Thus' from the oral and documentary evidence the appllcant has established its case, The applicant 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 and the defendants' From the perusal Annexure/Exhibit-F, which the aPPlicant of the Statement of Account, which is the total outstanding comes to Rs.61,16,176'17 is entitled to recover from the defendants The 11,

12. ot- certified copy of the Statement of Account is admissible in evidence under Section 4 of the Bankers Books Evldence 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. The applicant has also claimed pendentelite and future interest @ !3.25o/o per annum with quarterly rests. The interest of justice will meet if pendentelite and future interest is granted @ 13 25olo per annum with simple. However, granting of compound interest with quarterly rests shall be too harsh. In view of the above discussion and after considering the entire evidence-on-affidavit of the applicant and the documents filed by the applicant, I have no hesitatlon to hold that the applicant is entitled to recover a sum of Rs.61,16,176.17 trom the defendants who are liable for the same. The applicant shall also be entitled to pendentelite and future interest on the said amount @ 13.25o/o per annum with simple from the date of filing of the Transfer Application till the date of realization.

ORDER

T.A. No.27O of 2013 filed by the Applicant is allowed and debt is determined with cost against the defendants no 1 to 3 It is hereby ordered that applicant is entitled to recover from the defendants the total amount to the tune of Rs 61,16,176 17 (Rupees Sixty One Lakhs Sixteen Thousand One Hundred Seventy Six and Paise Seventeen only) with pendentelite and future interest @ L3.25o/o per annum with simple on the amount due from the date of fillng of the Transfer Application, i.e. 10.03.2008 (i'e. O.A. No.29 of 2008) 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 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'

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Accordingly, pendentelite and future calculated on the reduced amount. interest shall be

(3) Defendants are debarred from disposing, alienating or dealinq with any of the properties belonging to them till the aforesaid decretal debt is recovered from the defendants'

(4) 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 is entitled to recover its dues by sale of secured assets, if any' Applicant 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 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 Certificate'

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

(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 (Z?) ol 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 Application being T'A' No'270 of 2013 is allowed and stands disposed of. Copy of the Judgement/Final Order be uptoad in the Tribunal's website. File is consigned to the Record Room' ( Dictated to P.S., transcribed me in the oo"n\Cou.t on thit Vr$n"&t by him, corrected, signed and pronounced by tnef$;av of 5q+;020 ) c' A'F 'A*nno ( ANIL KUMAR CHATURVEDI ) PRESIDING OFFICER.

Order Sheet (Continuation) ASREC (India) Ltd . Cas€ No. T.A. No.270 0f 2013 rder pronou nced (Vide separate eets). In the result, T.A. No.270 of 2013 is allowed with costs. Issue Recovery Certificate accordingly A'h o^t,^"^ (A.K.Chaturvedi) Presiding Officer, DRT-3, Kolkata. Vs' M/s. Anupama Traders & ors Office action wrth date and d.ted signrture ol partleg when oacEl8ary Dato of Oldet Order with Signature OrlcLN1s-29 il.ol roro eo o-