ORIENTAL BANK OF COMMERCE vs SURYADHUTI ASSOCIATES & ORS on 20 July 2020

1. Counsel for the Applicant Bank: Counsel for the Defendants:- DArE oF DELTVERY oF oRDER ,g$.ol'2Ozoq EOe'' Orienta I Bank of Commerce, S.S.I. Kolkata Bra nch, 43, Rash Behari Aven ue, Kolkata - 7O0 026. Suryadhuti Associates, 44/2, Jatindas Road, P.O. : lchapore, Nawabquni. Dist. North 24 parga nas. Shri Amit Kumar Basu, 4412, Jatindas Road, P.O. : Ichapore, Nawabquni, Dist. North 24 parganas. - Shri Dipankar Das, B8/95, Kalyan i, P.o. : Kalvani_ Dist. Nadia, pIN - 741 235. Shri Arun Dhar, Kadamtala, Chayatanava Lane. Gh utia Bazar, Hooghly, PIN - 712 103. Shri Na bakumar Karan, Village : Kawra Da nga, Dawlatabad, Dist. 24 parganas (South). Smt. Puspa Rani Karan, Village : Kawra Danga, Dawlatabad, Dist. 24 parganas (South). Shri Ajoy Kumar Roy, Village : Kawra Danga, Dawlatabad, Dist. 24 parganas (South). Defendants. Shri D. B. Das. Set ex-parte on 20.72,2019 Applicant Bank. /-

1. JUDGEIVIENT 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 praying for issuance of Recovery Certificate to the tune of Rs.33,38.888.00 together with interest, cost and other usual relielis. The brief facts of the case as made out in the Transfer Application by the applicant bank is that the defendants no.Z to 5 for self and on behalf of defendant no.1 firm had approached the applicant bank for financial assistance for their business wherein the defendants no.6 and 7 had stood as guarantors. The applicant bank after examining the feasibirity of the said proposar had sanctioned a term roan rimit of Rs.25.00 lakhs on 30.05.2007 in favour of defendant no.1 firm with certain terms and conditions, which was accepted by the defendants. To avail the above loan facility, the defendants no.2 to 5 had executed the loan documents on 31.05.2007 in favour of the applicant bank. To secure the above loan, the defendants no.5,6 and 7 had created equitable mortgage of their properties in favour of the applicant bank by depositing the original tifle deed in the bank. Further, on the request of defendants no.2 to 5 for self and on behalf of defendant no' 1 firm. the appricant bank had sanctioned a term roan of Rs.25.00 lakhs on 02.06.2007 in favour of defendant no.1 firm. It was also stipulated in the sanction letter that the said amount shall be payable in 60 equal monthly installments of Rs.61,12g.OO commencing from 01.09.2007. After availing the loan, the defendants had utilized the said loan amount in his business and operated the roan account at the initiar stage but subsequenfly the defendants had faired to operate the said loan account in terms of the agreement between the parties as a result o*

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5. of which the loan account became irregular. A sum of Rs.33,38,888.00 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 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 had appeared through their Advocate but failed to file their show cause reply. Consequenfly, the sald defendants were set ex-parte on 20.12.2019. 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 ctaim of the applicant bank is within time ? (it) Whether the defendants had utilized the toan 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 estabtished its case. The documentary evidence comprises from Annexure/Exhibit_ A to Annexure/Exhibit-X. which are available in paper book Rled 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/Exhibit-A to X, it is established that the defendants had availed the financial facilities from the applicant bank and had withdrawn the amount through the account. d

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10. The oral testimony comprises of an aFfidavit of Shri Satyam Bharati, S/o. Anjl Singh working as Senior Manager of the Applicant Bank. The averments in the application and the facts stated by the witness of the applicant in his affidavit are unrebutted.

11. From the perusal of Annexure/Exh ibit- K, the whlch the applica nt bank the Statement of Account which is total outstanding comes to Rs,33,3g,8gg.00 is entitled to recover from the defendants.

72. 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 entifled to recover a sum of Rs.33,3g,ggg.Oo from the defendants who are liable for the same. The applicant bank shall also be entifled to pendentelite and future lnterest on the said amount @ 73.25o/o per annum with simple from the date of filing of the Original Apptication till the date of realization.

(1) T.A. No.564 of 2015 fited by the Applicant Bank is alowed and debt is determined with cost against the defendants. It is hereby ordered that applicant bank is entiued to recover from the defendants the total amount to the tune of Rs.33,38,BB8.OO (Rupees Thirty Three Lakhs Thirry Eigt Thousand Eight Hundred Eighty Eight only) with pendentetite and future interest @ 13.25olo per annum with simple on the amount due from the date of filing of the Transfer Application, i.e. 05.01.2010 (i.e. O.A. No.10 of 2010) ti fu and finat 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 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 sha be calculated on the reduced amount. o-

(3) Oefendants are debarred from disposing, alienating or dealing with any of the propertjes 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 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 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 certincate in term of the final ordey'judgement for recovery of the sum against the defendants in favour of the Applicant Bank under Section 79 (?2) of the Recovery of Debts due to the Bank and Financial Instltutions Act, 1993 now known as Recovery of Debts and Bankruptcy Act, 1993. Accordingly, the originat Apptication being T.A. No.564 of 2015 is allowed and stands disposed of. Copy of the Judgement/Finat 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 the_od day of ffi'ozo ) vxtu &L 2'e o- h.\b'* , ^ "i[3[1n ". B?ll&x: o,,

Order Sheet (Continuation) lase No. T.A. No.564 of 2015 Order pronounced (Vide separate sheets). In the result, T.A. No.564 of 2015 is allowed costs. Issue Recovery Certificate accordingly. 7tr' f cr:^^n"'1 (A. K.Chaturvedi) Presiding Officer, DRT-3, Kolkata. Oriental Bank of Commerce Vs. Suryadhutl Associates & Ors. Oftice aclion wrth date and dated Signature gl partles when nrco39ary Date of

Order

Otder with Signature