PUNJAB NATIONAL BANK vs M/S PRITHA FABS & ANR on 20 July 2020

1. M/s. Pritha Fabs, 69/53150, Sarkarpara, P.O. : Halisahar, Dist. North 24 Parganast PIN - 743 134. 2, Shri Parth Pratim Sarkar, 69/53/50, Sarkarpara, P.O. : Halisaha r, Dist. North 24 Parganas, PIN - 743 134. ... Defendants. DArE OF DELTVERY OF ORDER :2$.Ot.ZOZy ED U nited Bank of India, Halisa har Bra nch, Ghosepara Road (Baidya Para ), Gakusagar, P.O. : Halisahar, Dist. North 24 Pa rganas, PIN - 743 134. Counsel for the Applicant Bank: - ... Shri Pralay Kar. counsel for the Defendants:- ... Shrj Amitava Chowdhury JUDGEN4ENT

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 United Bank of India, Halisahar Branch, Kolkata against the defendants no.1 and 2 praying for issuance of Recovery Certificate to the tune of Rs.12,99,874.59 together with interest, cost and other usual reliefs.

2. The brlef facts of the case as made out in the Transfer Application by the applicant bank is that the defendant no.2 for self and on behalf of b*

3. defendant no.l firm had approached the applicant bank on 10.06.2005 for grant of financial assistance for its business. The applicant bank after examining the feasibility of the said proposal had sanctioned a cash credit facility of Rs.7.50 lakhs and a term loan of Rs.3.71 lakhs aggregating to Rs.11.21 lakhs under CGTSI guarantee scheme on 26.07.2006 in favour of the defendant no.1 firm with certain terms and conditions, which was accepted by the defendants. It was also stipulated in the sanction letter that the said loan amount shall be payable in 60 equal monthly installments of Rs.8,000.00 starting after six months of moratorium. To avail the above loan the defendants had executed various loan documents on 14.08.2006 in favour of the applicant bank. After availing the loan, the defendant no.1 firm had utilized the said loan amount in its 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. By notice, the applicant had requested the defendants to regularize the loan accounts and repay the outstanding dues but the defendants had failed to regularize the accounts or repay the outstanding dues. A sum of Rs.12,99,874.59 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 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 defendants had appeared through their Counsel and had filed their written objection/show cause reply and absented themselves from the proceedings. a\*

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The defendants had filed their written objection. However, they had not filed their evidence-on-affidavit in support of their written objection. As per Section 19 (108) of The Recovery of Debts and Bankruptcy Act, 1993, "If any of the facts or pteadings in the application or written statement are not verified in the manner provided under Sub-Section (10A), a party to the proceedings shall not be allowed to rely on such facts or pleadings as evidence or any of the matters set out therein." Therefore, the written objection filed by the defendants is not relied on by this Tribunal while deciding the matter in the present T.A. I have heard the learned Counsel for the applicant bank and have perused the relevant documents. 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 utitized the loan facility granted by the bank ? (iii) Whether both the defendants were liabte 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 filed by the applicant bank. From the perusal of the records, it is seen that the appltcant had sanctioned a cash credit facility of Rs.7.50 lakhs and a term loan of Rs.3.71 lakhs aggregating to Rs.11.21 takhs in favour of the defendant no.1 firm and the relevant documents were executed on 14.0g.2006. By the execution of the said documents dated 14.0g.2006, the limitation available to the bank for filing the Transfer Application was upto 13.08.2009 whereas the T.A. had been filed on 30.03.2011 (i.e.

10. O.A. No.591 of 2011). The defendant had also executed the balance confirmation report dated 02.03.2009 which is filed as Annexure/Exhibit-G whereby the defendant had acknowledged that he is liable to the bank for payment of all outstandings with interest, cost, charges and expenses and other monies due and payable by him to the bank. By the execution of the said balance confirmation report dated 02.03.2009, the limitation stood extended under Section 18 of the Limitation Act and as such, the limitation available to the bank for filing the Original Application is upto 01.03.2012 whereas the Original Application has been Rled on 30,03.2011 well within the period of limitation. In view of the above, the Original Application is well within time. From the perusal of the documents referred above and the certified copy of the statement of account, which is filed as Annexure/Exhibit-H, it is established that the defendants had availed the financial facility from the applicant bank and had withdrawn the amount through the account. The oral testimony comprises of an affidavit of Shri Arkadyuti Mitra, S/o. Late Arup Kumar Mitra, working as Manager, United Bank of India, Halisahar Branch, Kolkata. The averments in the appllcation 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 defendant no.1 firm was sanctioned a cash credit facility of Rs.7.50 lakhs and a term loan of Rs.3.71 lakhs aggregating to Rs.11.21 lakhs and the relevant documents were executed on 14.08.2006. He has also proved the execution of the documents by the defendants. Thus, from the oral

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72. and documentary evidence the applicant bank has establlshed lts case. The applicant 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 appllcant bank and the defendants, From the perusal of the Statement of Account, which is Annexure/Exhibit-H, the total outstanding comes to Rs,12,99,874.59 which the applicant bank is entitled to recover from the defendants. The certifled 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 bank has also claimed pendentelite and future interest @ ll.25o/o per annum with monthly rests. The interest of justice will meet if pendentelite and future interest is granted @ 11.250lo 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 flled by the applicant bank, I have no hesitation to hold that the applicant bank is entitled to recover a sum of Rs.12,99,874.59 from the defendants who are llable for the same. The applicant bank shall also be entitled to pendentelite and future interest on the said amount @ 77.25o/o pet annum with simple from the date of Rling of the Transfer Application till the date of realization.

ORDER

14. T.A. No.1764 of 2014 filed by the Applicant Bank is allowed and debt is determined with cost against the defendants no.1 o- and 2. It is hereby ordered that apPlicant bank is entitled to recover from the defendants the total amount to the tune of Rs.12,99,874.59 (Rupees Twelve Lakhs Ninety Nine Thousand Eight Hundred Seventy Four and Paise Fifty Nine only) with pendentelite and future interest @ !7 '25o/o per annum with simple on the amount due from the date of fillng of the Transfer Application, i.e. 30.03.2011 (i.e' O.A. No.591 of 2011) till full and final realization of the claim amount. Amount, if anyr 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 ludgement/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 (s) 6\

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 wlth 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) ot 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.764 of 2074 is allowed and stands disposed of. Copy of the ludgement/Final Order be upload in the Tribunal's website. File is consigned to the Record Room. A'x"aa'r'^"* ( ANIL KUMAR CHATURVEDI PRESIDING OFFICER. ( Dictated to P.q., transcribed by him, corrected, signed and pronounced by me in the "i,fi:i."1*t'"n'$ot"' or trr;2o2o ) )

Order Sheet (Continuation) Case No. T.A. No.764 of 2014 er pronounced (Vide separate sheets). In the result, T.A. No.764 0f 2014 is a owed with costs. Issue Recovery Certificate accordingly. A,K'o"P*- (A. K.Chaturvedi) Presiding Officer, DRT-3, Kolkata. United Bank of India. Vs. M/s. Pritha Fabs & Anr. Office aclton wlth date and drted Signature ol partl€ when otcqgSary Dato ol

Order

Order No.2l. ga.o7.2o2o 'Lo (>\ Ordor with Signature