ALLAHABAD BANK vs AVIK SINGHA & ORS on 20 July 2020

JUDGEMENT

1. This is an Transfer Appllcation 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.22,72,675.00 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 defendant no.1 had approached the bt

3. applicant bank on 16.04.2004 for grant of a cash credit limit of Rs.2.00 lakhs for his business whereln the defendants no.2 and 3 had stood as guarantor. The applicant bank after examining the feasibility of the said proposal had sanctioned a cash credit limlt of Rs.2.00 lakhs in favour of defendant no.1 with certain terms and conditions, which was accepted by the defendants. On the request of defendant no.1, the said cash credit limit was enhanced by the applicant bank to the extent of Rs.1.50 lakhs. Further, the defendant no.1 had approached the applicant bank on 30.01,2006 for grant of a term loan of Rs.12.80 lakhs wherein the defendants no.2 and 3 had stood as guarantors. The applicant bank considering the said request of defendant no.1 had sanctioned a term loan of Rs.12.80 lakhs in favour of defendant no.1 with certain terms and conditions which was accepted by the defendants. It was also stipulated in the sanction letter that the said amount of Rs.12.80 lakhs shall be payable in 84 equal monthly installments @ Rs.21,250.00. To avail the above loan facilities, the defendants had executed various loan documents on 20.04.2004 for Rs.2.00 lakhs, dated 70.72.2004 for Rs.1.5o lakhs and dated 31.01.2006 for Rs.12.80 lakhs aggregating to Rs.16.30 lakhs with a promise to pay the said amount to the applicant ban on demand with interest thereon with monthly rests. To secure the above loan amounts, the defendant no.1 had created equitable mortgage of his property in favour of the applicant bank by depositing the original title deed in the bank. After availing the loan, the defendant no.1 had utilized the said loan amounts in his business and operated the loan accounts at the initial stage but subsequently the defendants had failed to operate the said loan accounts in terms of the agreement between the parties as a result of which the loan accounts became irregular. A sum of Rs.22,12,675.00 is due against the defendants which the defendants

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6. 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 agalnst 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 had neither appeared nor had filed their show cause reply. Consequently, the said defendants were set ex- pafte on 20.72,2019. 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 determination in this case 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 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 Annexure/Exhibit-H, which are available in paper book flled by the applicant bank. From the perusal of the documents referred above and the certifled copy of the statement of account, which is filed as Annexure/Exhibit-A to H, lt is established that the defendants 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 A. K. Rai, S/o. Late R. N. Rai, working as Chief Manager of the Applicant Bank. The

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72. A averments in the application and the facts stated by the witness of the applicant in his affidavit are unrebutted. From the perusal of the Statement of Account which is Annexure/Exhibit- H, the total outstanding comes to Rs.22,12,675.00 which the applicant bank is entitled to recoveT from the defendants. 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.22,72,675.00 from the defendants who are liable for the same. The applicant bank shall also be entitled to pendentelite and tuture interest on the said amount @ 11.95olo per annum with simple from the date of filing of the Original Application till the date of realization.

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ORDER

T.A. No.290 of 2014 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.22,12,675.00 (Rupees Twenty Three Lakhs Twelve Thousand Six Hundred Seventy Five only) with pendentelite and future lnterest @ 11.95olo per annum with simple on the amount due from the date of filing of the Transfer Application, i.e. 18.03.2014 (i.e. O.A. N0.355 of 2014) 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 wlth any of the properties belonging to them till the aforesaid decretal debt is recovered from the defendants.

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(s) 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. 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. Ld. Recovery Officer 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 L9 (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 Original Application being T.A. No.290 of 2014 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, corrected, signed and pronounced by me in the \open Court on this therBtl day of f.i,2020 ) fnrhro.\ at - A.r'.otrv"'' ( ANIL KUMAR CHATURVEDI ) PRESIDING OFFICER.

Order Sheet (Continuation) Alla ha bad Bank. Vs. Avik Singh & Ors. iase No. T.A. No.290 of 2014 Order pronounced separate sheets). In the result, T.A. No.290 of 2014 is allowed costs. Issue Recovery Certificate accordingly. A' K' a'^'a-*"t (A.K.Chaturvedi) Presiding Officer, DRT-3, Kolkata. Deto ol

Order

Office action wrth datg and dated Signature ol partles when necea8ary Order No.17 #F,0," Order with Signature