CANARA BANK vs KALYAN KUMAR BISWAS AND ORS on 27 July 2020

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2. SADHAN CHANDRA PARUI, Son of Late Haripada Parui, residing at- Lane, Howrah-711103 and also at 11,/34/ A, Balai l'4istri

3. Shibpur Sikshalaya High School, 4614/11, Shibpur Road, Howrah-711102 JAYDEB CHAKRABORTY, Son of Shri Jayanta Bhushan Chakraborty, Proprietor of M/s Joy Properties, 89, R B C Road, Kolkata-700028 and residing at NA-58, Arjunpur, Rajarhat, Kolkata-700059 Counsel for the Applicant Bank: - Counsel for the Defendants: - Manoj Kumar Slngh, Set ex-parte on Defendants Ld Counsel 03.01 .2020 ]UDGEMENT This is an Original Application made 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. 12,37,587.98p together with interest, cost and other usual reliefs.

2. The instant Original Application being Case T.A. No. 225 of 2OL4 arlsing out of No. o.A. 985 of 2014 was filed on 14.08.2014 before the DRT-II, Kolkata for recovery of a sum of Rs. !2,37,587.98p due and payable from the defendants No. 1 and 2 jointly and severally towards outstanding dues as on 3t,07,20L4 in respect of the Housing Loan facllities to the tune of Rs, 6,9L,L221- sanctioned and granted by the Applicant Bank to the Borrowers/Defendants No. 1 & 2 for purchase of a Flat being No. G-1 on the Ground Floor, measuring about 750 sq. ft. be the same a llttle more or less along with undivided proportionate share over the land and common facilities, amenities of the said building lying and situated within the limit of South Dum Oum Municipality being Holding No. 4111, Sahid Khudiram Bose Sarani, Kolkata-700030, P.S. Dum Dum, District 24 Parganas (North) consisting of 2 bed rooms as stipulated at Annexure 'A-2'. The Defendant No. 3 ln this case is a Proforma Party. The instant O.A. No. 985 of 2014 had been filed before the DRT-II, Kolkata within the period of limitation and within the jurisdiction of the Hon'ble Tribunal. Subsequently, the O.A. has been transferred to this Hon'ble DRT-III, Kolkata and renumbered as T.A. No. 225 0f 20L4,

3. The brief facts of the case as made out in the Original Application by the applicant bank is that the defendant No. 1 made a request to the applicant's branch at Baguihati, Kolkata on 06.03.2006 for a housing loan of Rs.8,00,000/- to purchase a house and submitted requisite information to secure the loan. The Defendant No.2 furnished personal information as guarantor. The Applicant Bank having given due consideration and after proper scrutiny of the application dated 6th

4. March, 2006 submitted by the Borrower, being the Defendant No. 1, backed by guarantee provided by the Guarantor, being the Defendant No. 2, sanctioned a Housing Loan of Rs. 6,9L,122/- only to the Borrower, to be repaid by 144 equal monthly installments of Rs. 7,390/- with interest amongst other terms and conditions. vide its sanction letter dated 12.04.2006. The defendant on acceptance of the terms and conditions as contained in the sanction letter dated 12.04.2006 and as stipulated in Annexure- 'A-4', submitted a stamped receipt executed by the defendant No. 1 regarding disbursement of Rs. 5,25,122l- dated 12.04.2006, as stipulated in Annexure -'A-5'and also submitted the title deeds of properties dated 12.04.2006 by the defendant No. 1, as stipulated in Annexure - 'A-7' . The defendant No. 1, to secure the said housing loan executed term loan agreement on 12.04.2006 in favour of the applicant for Rs. 6,9f,L22/- with interest amongst other terms and conditions and the loan would be repaid in 144 equal monthly installments of Rs. 7,390/- from Flay 2006 onwards and the immovable property of two storied residential building situated at 4L/f, Sahid Khudiram Bose Sarani, Kolkata-700030, would be kept as security as stipulated in Annexure - 'A-7',. To secure the loan of defendant No. 1 with the applicant, the defendant No. 2 agreed and guaranteed for payment of Rs. 6,91,722/' together with interest thereon or on such sum as might be due or at such other rate of interest. The defendant No. 2 agreed to make payment and discharge on demand of all amount due and payable by the defendant No. L to the applicant at any time in respect of Home loan avalled of by the defendant No. 1 as stipulated in Annexure -'A-

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9. b) The Defendants No. 1 & 2 as borrower and guarantor had executed the following banking documents: a) One stamped receipt executed by the defendant No. 1 regarding disbursement of Rs. 5,25,1221- dated 12.04.2006, as stipulated c) in Annexure - 'A-5'. Housing Loan Agreement dated 12.04.2006 executed by Defendants No. 1 and 2 as stipulated ln Annexure -'A-6'. Letter handing over the title deeds of properties dated 72.04.2006 by the Defendant No. 1, as stipulated in Annexure - 'A-7', . The Defendants enjoyed the money from the aforesaid loan but failed to operate Term Loan account effectively and as a result of which the loan account became irregular NPA and for which the Applicant had issued letter dated 15.03.2014 under section 13(2) of the SARFAESI Act,2002 demanding payment towards the loan outstandinq as on 2a.02.2014. The Borrower being the Defendant No. 1 and the Guarantor being the Defendant No. 2 failed and neglected to pay their outstanding amount in spite of Legal Notice served through Advocate on 15.03.2014 as stipulated in Annexure - 'A-11'. A sum of Rs. 12,37,587.98p 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 Original 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 appeared through their Counsel and prayed time for filing of W.S. But no W.S. was filed on behalf of the 0\

10. defendants as a result of which they were proceeded ex-parte vide order dated 03.01.2020 of this Tribunal. 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 pay 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-1'to Annexure'A-12', which are available 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'A-1'-'A- 12', it 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 Jyana Ranjan Rout, working as Chief Manager of the Applicant Bank. The averments in the application and the facts stated by the witness of the applicant in his affidavit are un-rebutted. From the perusal of the of the Statement of Account marked as Annexure'A-12', the total outstanding comes to Rs. 12,37,587'98p as on 31.07.2014, which the applicant bank is entitled to recover from the defendants. 6* 1-2.

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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. 12,37,587.98p from the defendants who are liable for the same. The applicant bank shall also be entitled to pendentelite and future interest on the said amount @ 10 5olo per annum compounded from the date of filing of the Original Application till the date of realization.

ORDER

(1) T.A. No. 225 of 2014 filed by the Applicant Bank is allowed and debt is determined with cost against the defendants lt is hereby ordered that applicant bank is entitled to recover from the defendants the total amount to the tune of Rs 12,37,587 98p (Rupees twelve lakh thirty seven thousand five hundred eighty seven and paise nlnety eight only) wlth pendentelite and future interest @ 10.5olo per annum with simple on the amount due from the date of filing of the original Application, i.e. 14.08'2014 till full and final realization of the claim amount.

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

Defendants are debarred from disposing, alienating or dealing with any of the properties belonging to them till the aforesald 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 fail to pay the dues within the above mentioned time, the appllcant 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.

(s) 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.

(7) Ld. Registrar of this Tribunal is directed to deliver recovery certificate in terms of the final order /judgement for recovery of the sum against the defendants 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 and Bankruptcy Act, 1993. o.

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(8) The parties are dlrected to appear before the Recovery Omcer on 28,O9.2020 for further action in accordance wlth law ln the event the entire amount ls not paid by the sald date' Accordingly, the Original Application being T.A. No. 225 of 2014 is allowed and stands disPosed of' Copy of the Judgement/Final Order be uploaded in the Tribunalt website. File is consigned to the Record Room. ( Dictated to Steno, ru0p,fl"bC$ lV him, corrected, signed and pronounced by me in tnel6iEi'iourt on this the 27 ti P\ ,1 2O2O) t u A'f.C", -'"t"' ( ANIL KUMAR CHATURVEDI ) PRESIDING OFFICER.

Order Sheet (Continuation) Case No. TA No. 225 of 2014 Syndicate Bank Vs. Kalyan Kumar Biswas & Ors. Date of

Order

Order with signature Office action with date and dated signature Od€LXp. 1 Order pronounced (Vide separate sheets), In the result, T.A. No. 225 of 2014 is allowed Issue Recovery Certifi cate accordingly. costs. a**qr6 (A. K.Chaturvedi) Presiding Officer DRT-3, Kolkata '), Dr. Gitt. 202 0 zF1 .