Indian Bank vs BIDHAN HALDER & ORS on 13 August 2020

JUDGEMENT

1. This is an Original Application made under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 initlated by the applicant against the defendanu'praying for issuance of Recovery Certificate to the tune of Rs. 2,22,33,814/- together with interest, cost and other usual reliefs.

2. The instant Origlnal Application being Case T.A. No. 195 of 2013 arising out of No. O.A. 256 of 20L2 was filed on 20.02,2012 before the DRT-II, Kolkata for recovery of a sum of Rs. 2,22,33,814/- due and o\

3. payable from the defendant No. 1 towards outstanding dues as on f6.02.2012 in respect of the cash credit loan to the tune of Rs. 2,OO,OO,OOO/- sanctioned and granted by the Applicant Bank to the Borrower/Defendant No. 1 for working capital by way of Cash credit Account and on 26.03.2009/ -. The instant o,A. No. 256 of 2012 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. 195 of 2013. The brief facts of the case as made out in the Origlnal Application by the applicant bank is that the defendant No. 1 made a request to the applicant's branch at South Sinthee Branch, Kolkata for a working capital and for cash credit facllities of Rs. 2,00.00.000/- and submitted requisite information by way of exclusive hypothecation of entire stock, book debts and current assets of the firm, both present and future to secure the loan. The Defendant No. 2 & 3 as guarantors furnished their personal information including equltable mortgage charge on super built commercial areas of 1000 sq. ft. and 2592 sq. ft. in the vicinity of Barasat Municipality, Dist' 24 Parganas. (North), Kolkata-700125 and also a commercial space of about 1870 sq. f in the same vicinity. The APplicant Bank having given due consideration and after proper scrutiny of the application submitted by the Borrower, being the Defendant No. 1 backed by guarantee provided by the Guarantors being the Defendant No. 2 & 3, sanctioned a cash credit loan for limit of Rs. 2,0O,OO,OO0/- only vide its sanction letter dated 26.03.2009 to the Borrower, to be repaid within a year. The defendant on acceptance of the terms and conditions as contained in the sanction letters dated 26.03.2009 and as stipulated in Annexure-'M' executed certain documents backed by guarantee provided by the guarantors, being Defendant No. 2 & 3 and a Demand

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Promissory Notes for Rs. 2.00,00,000/-, as supulated ln AnnexurerE,, with a promlse to pay a total sum of Rs. 2,00,00,000/- to the Appticant Bank on demand with interest thereon with monthly rests.

5. The defendant No. 1, to secure the said cash credit loan facilities, executed personal guarantee Agreement for Hypothecation executed on 28.03.2009 and the Defendant No.2 & 3 executed mortgage confirmation letter on 28,03.2009 in favour of the applicant for Rs. 2,00,00,000/- agreeing to pay interest @ 1olo per annum over the Allahabad Bank's Prime Lending Rate which was 72.5o/o per annum as on 28.03.2009 with monthly rests on floating rate of interests and deposited several Title Deeds of immovable properties situated at Barrackpore Road, Noapara, Barasat, Kolkata-700125 to be kept as security as stipulated in Annexure - 'C'and Annexure -.D,.

6. To secure the loan with the applicant, the defendant Nos. 1 & 2 joinfly and severally agreed and guaranteed for payment of Rs. Z,OO,0O,OOO/- together with interest thereon or on such sum as mlght be due @ 1.00o/o per annum over the Allahabad Bank,s prime Lending Rate which was L2.5o/o per annum with monthly rests on floating rate of interests. The defendant No.2 & 3 agreed to make payment and discharge on demand of all amount due and payable by the defendant No. 1 to the applicant at any time in respect of Cash Credit loan facilities availed of by the defendant No. 1 as stipulated in Annexure - 'G',.

7. The defendants No. 1 as borrower had executed the following banking documents: i) Agreement for Hypothecation dated 28.03.2009

ii) iii)

Demand Promissory Notes by the Defendant 28.03.2009 No. 1 dated 8, Letter of continuity and undertaking for maintaining margin executed by Defendant No. 1

lv) Personal Guarantee executed by the defendants No. 1, 2 & 3 on 28.03.2009. The defendant enjoyed the money from the aforesaid loan but failed to operate both the Cash Credit and Term Loan accounts effectively and as a result of which the loan accounts became irregular NPA and for which the Applicant had issued letter dated 13.04.2011 under section 13(2) of the SARFAESI Act, 2002 demanding a payment of Rs. 2,f8,95,6f!- towards the loan outstanding as on 28'02.2011' The Borrower being the Defendant No. 1 and the Guarantor being the Defendant No. 2 & 3 failed and neglected to pay their outstanding amount in spite of Legal Notice served on 13.04.2011 as stipulated in Annexure - 'K'. A sum of Rs. Rs. 2,78,95,6f71' is due against the defendant which the defendant had not paid despite repeated demands and requests. Finding no other way to recover the dues of the bank, the appllcant bank had filed this Original Application for the recovery of the aforesaid amount and for the issuance of Recovery Certificate against the defendants.

9. Notices were issued to the defendantlto show cause as to why the relief prayed for by the applicant bank be not granted. After issuance of the notice, the defendantj appeared through their Counsel and prayed time for filing of W.S. But no W.S. was filed on behalf of the * defendanBas a result of which they were proceeded exparte vide thls Trlbunal. The Trlbunal had no other agalnst the defendants. o- order dated option but to 03.01.2020 of hear ex-parte

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I have heard the learned Counsel for the applicant bank and have perused the relevant documents. The defendanBlhad 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 defendang is liable to pay the amount due to the applicant bank or not? The applicant bank by oral and documentary evidence has establlshed its case. The documentary evidence comprises from Annexure/Exhibit- 'A' to Annexure 'K', which are available in paper book filed by the applicant bank, From the perusal of the documents referred above and the certlfied copy of the statement of account, which is filed as Annexure 'J', 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 affidavit of Shri Subrata Dey, working as Chief Manager of the Applicant Bank. The averments in the application and the facts stated by the witness of the applicant in this affidavit are un-rebutted. From the perusal of the Statement of Account which is at Annexure'J' the total outstanding comes to Rs. 2,22,33,874/- as on 16.02.2012, which the applicant bank is entitled to recover from the defendant. In view of the above discussion and after considering the entire evidence-on-affldavit 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.2,2233,A74/- from the defendants q.

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16. who are liable for the same. The appllcant bank shali also to pendentelite and future interest on the said amount annum over the Allahabad Bank's Prime Lending Rate ab{.d!Gf from the date of be entitled @ 1olo per which was filing of the

12.5olo with monthly rests Original Application till the date of realization. a3!_=_B T.A. No. 195 of 2013 flled by the Applicant Bank is allowed and debt is determined with cost against the defendanJ tt is hereby ordered that applicant bank is entitled to recover from the defendants the total amount to the tune of Rs. 2,22,33,8L4/- (Rupees two crores twenty two lakhs thirty three thousand eight hundred and fourteen only) with pendentelite and future interest @ 1olo per annum over the Allahabad Bank's Prime Lending Rate whlch was 12.5olo with monthly rests with simple rate of interest on the amount due from the date of flling of the Original Application, i.e. 20.02.2012 till full and final realization of the claim amount.

Amount, if any, paid by the defendanti 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.

(3) Defendants are debarred from disposing, alienating or dealing with any of the properties belonglng to them tlll the aforesaid decretal debt is recovered from the defendants. a-

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(4) Defendansare 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 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 aqainst 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 Certiflcate.

(6) Ld. Recovery Officer shall realize the amount as per the Recovery Certificate from the defendants in accordance wlth law.

(7) Ld. Registrar of this Tribunal is directed to deliver recovery certiflcate 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 16.10.2020 for further action ln accordance with law ln the event the entire amount is not paid by the said date. d"

Accordingly, the Original Application being T.A. No. 195 of 2013 is allowed and stands disposed of. Copy of the Judgement/Final Order be uploaded in the Tribunal's website. File is consigned to the Record Room. ffi l'i::::.'ff Xl";'fi l'ii[,:i::fl1.':;f :l"ii;';|#^#,^

A'xcs"'a ( ANIL KUMAR CHATURVEDI ) PRESIDING OFFICER.

Order Sheet (Continuation) Case No. TA No. 195 ot 2013 Allahabad Bank Vs. Bidhan Halder & Ors. Date of

Order

Order with signature Office action with date and dated Signature of parties when Order pronounced (Vide separate sheets). In the result, T.A. No. 195 of 2013 is allowed with costs. Issue Recovery Certifi cate accordingly. A.K (A. K.Chaturvedi) Presiding Officer DRT-3, Kolkata E