Indian Bank vs SURAJIT SINHA ROY on 27 July 2020

JUDGEMENT

1. This ls 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 lssuance of Recovery Certificate to the tune of Rs. 13,17,318/- together with interest, cost and other usual reliefs.

2. The instant original Application being case T.A. No. 683 of 2014 arising out of No. O,A. 1196 of 2014 was filed on 22.09.2014 before the DRT-II, Kolkata for recovery of a sum of Rs. 13,17,318/- due and payable from the defendant towards outstanding dues as on 08.09.2014 in respect of Term Loan to the tune of Rs 11,72,000/- sanctioned and qranted bY q the Applicant Bank to the

3. z Borrower/Defendant for purchase of a commercial vehicle on 27.10.2071. The instant O.A. No. 1196 of 2014 had been filed before the DRT-II, Kolkata within the period of limitation and within the jurlsdiction 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. 683 of 2014. The brief facts of the case as made out in the Original Application by the applicant bank is that the defendant made a request to the applicant's branch at CRBB Branch, Laketown, Kolkata-700089 on 18.10.2011 for a Term Loan of Rs. fi,72,000/- and submitted requisite lnformation by way of execution of an Agreement for Term Loan and hypothecation of his vehicle - Eicher 1090 F/L CWC ABPS BS4 Engine No. E483CDBJ547I75 and Chasis No MC217LRTOBK236249 to secure the loan. The Applicant Bank having given due consideration and after proper scrutiny of the application dated 18th october, 2011 submitted by the Borrower, being the sole Defendant, sanctioned a Term loan for Rs. 11,72,000/- only vide its sanction letter daled 27.fO.2}ll to the Borrower, to be repaid by 81 equal monthly installments of Rs. 23,300/- by the Applicant vide its sanction letter dated 27.10.2011.

4. The defendant on acceptance of the terms and conditions as contained ln the sanction letter dated 27.fO.2077 and as stipulated in Annexure- ,B' executed an Agreement for lvledium Term Loan and signed for Hypothecaticn of vehicle. The defendant and also made a down payment of Rs. 2,93,810/- to Future Automobile Agency Pvt Ltd', the supplier of the commercial vehicle to secure the loan as stipulated in Annexure-B and Annexure-C and promised to pay a total sum of Rs' 17,72,OOO/- to the Applicant Bank on demand with interest thereon with monthly rest. ot

5. The defendant to secure the said vehicle loan created a collateral security against the said loan with the Applicant and Hypothecated the vehicle vide a Memorandum of Agreement dated 27.IO.2O71 respect of the vehicle Eicher 10.90 L F/L CWC ABPS BS4, Engine No. E483COBJ547 L75 and Chasis No. MC217LRTOBK236Z49, affirming inter-alia, his ownership of the said hypothecated property, which is annexed and marked as 'C'.

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6. The defendant had agreed to pay interest @1.5olo per annum over the base rate minimum 72.25o/o pet annum from onwards 27.10.2011. Rate of interest is subject to change from time to time. The Defendant enjoyed the money from the aforesaid loan but falled to operate the Credit Term Loan Account effectively and as a result of which the loan account of the Defendants became irregular. The Defendants failed to regularize the accounts and as such the account of the Defendants was classified as NpA and for whlch the Applicant had issued summons by way of postal service with track record as per Order No. 5, dated 06.08.2015 of the Ld Registrar-in-Char9e, DRT-III, Kolkata under Section 19(1) of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 to the Defendants demanding payment towards the loan outstanding as on 08.09.2014. The Borrower/Defendant failed and neglected to pay the outstanding amount in spite of Demand Notice served on several occaslons as mentioned above. A sum of Rs. Rs. 13,17,318/- was due against the defendant as on 08.09.2014, which the defendant had not paid despite repeated demands and requests. 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 issuance of Recovery Certificate against the defendants.

8. 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 appeared through their Counsel and prayed time for filing of W.S. But no W.S. was filed on behalf of the sole defendant as a result of which they were proceeded ex-parte vide order dated 03.01.2020 of this Tribunat. The Tribunat 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' to Annexure 'D', 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' - 'D', it is established that the defendant had availed the financial facilities from the applicant bank and had withdrawn the amount through the account. The oral testimony comprises of an amdavit of Mr. Prasenjit Guha, 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 un-rebutted.

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74. From the perusal of the of the Statement of Accounts which is at AnnexuTe'D', the total outstanding comes to Rs. 13,17,318/- as on 08.09.2014, which the applicant bank is entitled 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 the applicant bank, I have no hesitation to hold that the applicant bank is entitled to recover a sum of Rs. 13,17,318/- from the defendant who is liable for the same. The applicant bank shall also be entitled to pendentellte and future interest on the said amount @ 11.25olo per annum compounded from the date of filing of the Original Application till the date of realization.

ORDER

(1) T.A. No. 683 of 2014 filed by the Applicant Bank is allowed and debt ls determined with cost against the defendant. It is hereby ordered that appllcant bank is entitled to recover from the defendant the total amount to the tune of Rs. 13,17.318/- (Rupees thirteen lakhs seventeen thousand three hundred and eighteen only) with pendentelite and future interest @ 11.25olo per annum with simple on the amount due from the date of filing of the original Application, i.e.22.o9.2014 till full and final realization of the claim amount. Amount, if any, paid by the defendant 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

15. Ow the exact amount of dues/debt Accordingly, pendentelite and calculated on the reduced amount. payable by the defendant. future interest shall be

Defendant is debarred from disposing, alienating or dealing with any of the properties belonging to them till the aforesaid decretal debt is recovered from the defendant.

(4) Defendant ls given a time of thirty days from the date of the Judgment / Final Order for repaying of the above mentioned dues, so intimated to them. In case the defendant 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 defendant (Both movable and immovable) and also proceed agalnst the defendant personally to recover the dues in accordance with law.

(s) Let the Certificate of Recovery be drawn up by the 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 Certlflcate.

Ld. Recovery Officer shall realize the amount as per the Recovery Certificate from the defendant 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 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.

(8) 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 belng T.A. No. 683 of 2014 is allowed and stands disposed of. Copy of the JudgemenvFinal Order be uploaded in the Tribunal's website. File is consigned to the Record Room. (Dictated to Steno. transcribed by him, corrected, sign-e! and ^ pronounced by me in the virtual Court on this the,2T7l2O2O) /.h. a'r"*'n' ( ANIL KUMAR CHATURVEDI ) PRESIDING OFFICER

Order Sheet (Continuation) Case No. TA No. 683 of 2014 Allahabad Bank Vs. Surajit Sinha Roy Date of

Order

Order with signature Office action with date and dated Signature of parties when *I Order pronounced (Vide separate sheets). In the result, T.A. No. 683 of 2014 is allowed lssue Recovery Certificate accordingly. with costs. A.Yb'E (A.K.Chaturvedi) Presiding Officer DRT-3,Kolkata