ICICI BANK LIMITED vs ANIMESH KUMAR CHAKROBORTY on 20 July 2020

1. Animesh Kumar Chakraborty, carrying and style of Chakraborty Phrmaceuticals, as from 159 K N Dutta Road, Kolkata - 700036. on business under the name the Sole Proprietor thereof, Counsel for the Applicant Bank: Cou nsel for the Defendants:- Defendants. Shri A.K. Singh, Ld Counsel ... Set ex-parte on 02.0L.2020

1. ]UDGEN4ENT This is an Original Application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 initiated by the applicant against the sole defendant praying for issuance of Recovery Certificate to the tune of Rs. 16,29,207.94l- together with interest, cost and other usual reliefs. The brief facts of the case as made out in the Original Application by the applicant bank is that the defendant approached the Applicant Bank representing him as the proprietor of Chakra borty Pharmaceuticals. The defendant requested to avail a credit facility in the nature of working capital loan for a sum not exceeding to Rs.15.OO Lakhs from the Applicant Bank. The defendant represented that the

2. subject loan would be disbursed in favour of the defendant and the same shall be utilized only in his business. The applicant Bank after considering the proposal of the defendant, agreed to disburse the said credit facility in the nature of over draft on some terms and conditions:

(a) The facility shall be of revolving tenure based line of credit in the nature of overd raft.

(b) The loan shall be valid for a period of twelve months from the date of a pp rova l. O The defendant shall use the credit facility only for working capital requirements of the business of the defendant.

(d) Floating rate of interest that is the rate of ICICI Bench lvlark advance rate shall be applicable to the loan transfer between the parties and the interest shall be payable from the date of relevant withdrawal u nder the facility.

(e) The interest shall be charged on account of monthly basis based on the transaction during the month.

(f) The total credits in the facility over draft account before the 25th day of every English calendar month and should be minimum 5olo of the balance outstanding (including interest) as on last day of the previous English calendar month. (S) The defendant will pay a non-refundable fee at the rate of 2yo of the facility plus applicable statutory levies.

(h) The defendant shall furnish all papers and documents in support of its constitution andl or credentia l.

(i) In case of default in repayment of the moneys, the applicant Bank will be at discretion to recall the loan facility forthwith and demand the outstanding from the defendant. a\

(i) The applicant Bank shall be at liberty to enforce the securities more particularly described in the loan agreement.

3. On the aforesaid terms and conditions the parties entered into a Master Facility Agreement dated 2''d April, 2008 for loan of Rs. 1s,00,000i-. On the aforesaid representations the applicant Bank disbursed a sum of Rs. 15,00,000/- in favour of the defendant after execution of the following documents: Agreement dated 2"d April, 2008.

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(a)

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6. After availing the loan, the defendant had utilized the said loan amounts in his business and operated the loan accounts at the initial stage but subsequently the defendant 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.76,29,207.94/- (Rupees sixteen lakh twenty nine thousand two hundred seven and ninety four paise) is due against the defendant which the defendant had not paid despite of repeated demands and request. Finding no other way to recover the dues of the bank, the applicant bank had filed this Original Application for the recovery of the aforesaid amount and for the issuance of Recovery Certificate against the defendant. Notices were issued to the defendant to show cause as to why the relief prayed for by the applicant bank be not granted. After issuance of the notice, the defendant had appeared through their Counsel but the defendant failed to file the show cause reply and absented himself from the proceedings. Consequently, the said defendant was set ex- parte. The Tribunal had no other option but to hear ex-parte against the defenda nt. a

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7. B. (,1) I have heard the learned Counsel for the applicant bank and have perused the releva nt documents. The defendant 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 defendant had utilized the loan facilities granted by the bank ? (iii) Whether the defendant is 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-C, which are avaitabte in paper book filed 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 C, it is established that the defendant had availed the financial facilities from the appltcant bank and had withdrawn the amount through the accou nt.

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11. The oral testimony comprises of an affidavit of Shri Arup paul, S/o. D.P. Paul, working as lvlanager of the Applicant Bank. The averments in the application and the facts stated by the witness of the applicant in his aFfidavit are unrebutted.

12. From the perusal of the Statement of Account which is An nexu relExh ibit-C, the total outstanding comes to Rs. t6,29,207.941- (Rupees sixteen lakh twenty nine thousand two hundred seven and ninety four paise) which the applicant bank is enti ed to recover from the defendant. In view of the above discussion and after considering the entire evidence-on-affidavit of the applicant bank and the documents filed by

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(s) the applicant bank, I have no hesitation to hold that the applicant bank is entitled to recover a sum of Rs.76,29,207.94l- (Rupees sixteen lakh twenty nine thousand two hundred seven and ninety four paise) from the defendant who is liable for the same. The applacant bank shall also be entitled to pendentelite and future interest on the said amount @ 16.500/o per annum with simple from the date of filing of the Original Application till the date of realization.

ORDER

(1) T.A. No.109 of 2013 filed by the Applicant Bank is allowed and debt is determined with cost against the defendant. It is hereby ordered that applicant bank is entitled to recover from the defendant the total amount to the tune of Rs.16,29,207 .94l- with pendentelite and future interest @ 16.50o/o per annum with simple on the amount due from the date of filing of the Original Application, i.e. 27.04.2015 till full and final realization of the claim amount.

(2) Amount, if any, paid by the defendants in the loan accounts or amount, if any, recovered by the Applicant Bank after filing of the O.A. the same be taken into account while arriving at the exact amount of dues/debt payable by the defendant. Accordingly, pendentelite and future interest shall be calculated on the reduced a mou nt. Defendant is debarred from disposing, alienating or dealing with any of the properties belonging to him till the aforesaid decretal debt is recovered from the defendant. Defendant is given a time of thirty days from the date of the Judgement/Final Order for repaying of the above mentioned dues, so intimated to him. In case the defendant fails to pay the dues within the above mentioned time, the applicant bank is entitled to a--

(s) recover its dues by sale of secured assets, if any. Applicant bank is also entitled to proceed against personal properties of the defendant (Both movable and immovable) and also proceed against the defendant personaly to recoveT 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 defendant 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 defendant in accordance with law.

(7) Ld. Registrar of this Tribunal is directed to dellver recovery certificate in term of the final order/judgement for recovery of the sum against the defendant in favour of the Applicant Bank under Section 19 (22) of the Recovery of Debts due to the Bank and Financial Institutions Act, 1993 now known as Recovery of Debts aad Bankruptcy Act, 1993. (B) The parties are directed to appear before the Recovery Officer on 28.09.2020 for further action in accordance with law in the event the entire amount is not paid by the said date. Accordingly, the Original Application being T.A. No.109 of 2013 is allowed and stands disposed of. Copy of the Judgement/Final Order be uploaded in the Tribunal's website. a-

File is consigned to the Record Room. ( Dictated to Steno, transcribed by her, pronounced by me in the gp€hTourt on VtyL,al,\ corrected, signed and this the ,6th lulv- 202o) ;,^ f 'K *'en.r-t ( ANIL KUMAR CI-IATURVEDI ) PRESIDING OFFICER.

Dhanaxmi Uank l,rd. 1..\./109/ ofl0ll t)rdel No.28 :0 07.-l ll(r order pronounced (vide separate sheets). Shri Animesh Kumar Chakraborty A.K u,9-"bfr\.il, (^'.K. Chaturvedi) Presiding O1fic,:r DRT-3. Kolkara. ; V.A*J 4" ^!'q In the result, T.A. No. 109 of 2013 is allowed with costs. Issue Recovery Certificate accordingly.