UCO BANK vs KAMAL KRISHNA ROY AND ORS on 20 October 2020

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2. MR. RANJAN KUMAR BANERJEE, residing at 7/D, Naktala Road, Police Station Reqent Park, Kolkata-700047 3.1{

3. MR. BIDYUT DEY SARKAR, residing at Ganguly Bagan, Police Station Regent Park, Kolkata-700047. 'r Defendants Counsel for the Applicant Bank: l,lrs. Mousumi Chatterjee Chakraborty, Advocate Counsel for the Defendants: Set ex-parte on 10.01.2020 ]UDGEMENT

1. This is an Original Application made under Section 19 of the Recovery Institutions Act, 1993 initiated by praying for issuance of Recovery of Debts Due to Banks and Financial the applicant Certificate to against the defenda nts the tune of Rs. 35,79,629l- together with interest, cost and other usual reliefs. c

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The instant Original Application being Case T.A. No. 436 of 2015 arising out of No. o.A. 839 of 2011 was filed on 06.06.2011 before the DRT-II, Kolkata for recovery of a sum of Rs. 35,79,629/- due and payable from the defendants No. 1 towards outstanding dues as on 23'd March, 2011 in respect oF Cash Credit Hypothecation Loan facilities for the limit of Rs. 20,00,000/- sanctioned and granted by the Applicant Bank to the Borrowers/Defendants No. 1 for enhancing the working capital for his business and trade in fashion accessories l4ls Emitation Palace. The instant O.A. No.839 of 2011 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-UI, Kolkata and renumbered as T.A. No. 436 of 2015. The brief facts of the case as made out in the Original Application by the applicant bank is that the Defendant No. 1is the principal borrower, whereas the Defendant No. 2 & 3 stood as a guarantor and promised to repay all the indebtedness and liabilities of the said Defendant No. 1 to the applicant Bank in respect of the Cash Credit Hypothecation Loan granted to the Defendant No. 1. on 28.05,2002, the Defendant No. 1 made a request to the applicant's branch at Bansdroni, 235l3, N S C Bose Road, P.S. Regent Park, Kolkata-700047 for a Cash Credit Limit of Rs. 20,00,000/- for boosting his working capital and submitted the requisite information to secure the loan. The Defendants No.2 & 3 furnished several documents including a Hypothecation of Goods to Secure a Demand Cash Credit dated 04.07.2002 and a Demand Promissory Note of Rs. 20,00,000/- as guarantors. The Applicant Bank having given due consideration and after proper scrutiny of the application dated 28th MaY,2002 submitted by the Defendant No. 1, the principal borrower, backed by guarantee provided by the Defendant No. 2 & 3, sanctioned the Cash Credit o-

Facility with a limit of Rs. 23,00,000/- for the purpose of enhancement of his working capital to boost his trade in fashion designing to the Borrower vide its Sanction Letter/Facility Agreement dated on 4th July, 2002 as stipulated in Annexure - C.

4. The defendant on acceptance of the terms and conditions as contained in the sanction letter dated 04.07.2002 and as stipulated in Annexure- C of the said letter sanctioning the Cash Credit Loan Account, executed certain documents backed by guarantee provided by the guarantors, being the Defendants No. 2 & 3 and a Demand Promissory Note for Rs. 20,00,000/-, as stipulated in Annexure-D, with a promise to pay a total sum of Rs. 20,00,000/- to the Applicant Bank on demand with interest thereon with monthly rest.

5. The Defendant No. 1, to secure the said Credit Loan executed the Deed of Guarantee agreement on 4th luly, 2002 in favour of the applicant for Rs. 20,00,000/- agreeing to pay interest @ 140lo per annum with monthly rests.

7. On 04.07.2002, the Defendant while availing credit facilities with the Applicant Bank in accordance with the terms and conditions had executed the following banking documents: l) A Demand Promissory Note for Rs. 20,00,000/- dated 4th July, 2002. ii) Deed of Hypothecation of the assets dated 4th )uly,2oo2

iii) Deed of Guarantee dated 28th June, 2OO2 executed by the DefendantNo.2&3.

8. The Defendant had agreed to pay interest @ 14olo per annum with monthly rests from O4.Q7.2002 till the date of actual payment. Rate of interest is subject to change from time to tlme.

9. The Defendant enjoyed the money from the aforesaid loan but failed to operate Cash Credit Loan accounts effectively and as a result of which the loan accounts became irregular NPA on 30.09 2007 and for which the Applicant through their legal counsel had issued letter dated 17.02.2077 under section 13(2) of the SARFAESI Act, 2002 demanding a payment of Rs. 32,55,000/-. The Borrower, belng the Defendant No. 1 and the Guarantor being the Defendants No 2 & 3 failed and neglected to pay their outstanding amount ln spite of Legal Notice/Recall Notice served on 17.02,207! asking for a sum of Rs' 32,55,O00/- as stipulated in AnnexuTe -'L'. A sum of Rs' 35,79,629/' is due against the defendant which the defendant 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 defendant to show cause as to why the relief prayed for by the applicant bank be not granted After lssuance 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 defendants as a result of which they were proceeded ex-parte vide order dated 10.01.2020 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 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 defendants had utilized the loan facllities granted by the bank? (iii) Whether the

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16. 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 comprlses from Annexure/Exhibit- 'A'to Annexure 'N', which are available in paper book filed by the applica nt bank. From the perusal of the documents referred above and the certified copy of the statement of account, which are filed as Annexure'A'-'N', 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 Vinay Kumar Agarwal, working as Senior lYanager 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 Statements of Accounts which are at Annexure 'M' to Annexure 'N', the total outstanding comes to Rs. 35,79,629 as on 23.03.2011, which the applicant bank is entitled to recover from the defendants. 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. 35,79,629 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 @ l4o/o per annum with simple from the date of filinq of the Original Application till the date of realization,

ORDER

(1) T.A. No. 436 of 2015 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.35,79,629l- (Rupees thirty five lakhs seventy nine thousand six hundred twenty nine only) with pendentelite and future interest @ 14olo per annum with simple rate of interest on the amount due from the date of filing of the Original Application, i.e. 06.06.2011 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 defendants. Accordingly, pendentelite and future interest shall be calculated on the reduced amount.

(3) Defendants are debarred from dlsposing, alienatlng or dealing with any of the properties belonging to them till the aforesaid decretal debt is recovered from the defendants.

(4) Defendants are given a time of thlrty days from the date of the Judgement/Final Order for repaying of the above mentioned dues, so lntimated to them. In case the defendants fail to pay the dues within the above mentioned time, the appllcant bank ls entitled to recover its dues by sale of secured assets, if any. Applicant bank ls also entitled to Proceed against personal properties of the defendants (both movable and lmmovable) and also proceed against the defendants personally to recover the dues in accordance with Law. a\

(5) Let the Certificate of Recovery be drawn up by Ld. Registrar forthwith in terms of .ludgement 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. Ld. Recovery Officer shall realize the amount as per the Recovery Certificate from the defendants in accordance with law.

Ld. Registrar of this Tribunal is directed to deliver recovery certificate in terms of the final order /iudgement 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. The parties are directed to appear before the Recovery Officer on 27.17.2020 for further action ln accordance with law in the event the entire amount is not paid by the said date. Accordingly, the Original Application being T.A. No. 436 of 2015 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. ( Dictated to Steno, transcribed by him, corrected, signed and pronounced by me in the virtual Court on this,&')' - '

/'ts el"s^"'1 ANIL KUMAR CHATURVEDI PRESIDING OFFiCER,

Order Sheet (Continuation) -Oroellgo D! 7"'V se No. TA No. 436 of 2015 UCO Bank vs. Kamal Krishna Roy & ors. )ate of

Order

Order with sig nature offi.e action with date and dated signature of parties when necessary , - b-)')' Order pronounced (Vide separate sheets). In the result, T.A. No. 436 of 2015 is allowed with costs. Issue Recovery Certificate accordingly. rlp).' Presidinq Officer DRT-3,Kolkata