UCO BANK vs SOUMEN DAS & ANR on 9 November 2020

JUDGEMENT

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. 13,76,308/- together with interest, cost and other usual reliefs. The instant Original Application being Case T.A. No. 697 of 2014 arising out of No. o.A. 7233 of 2Or4 was filed on 26.09.2014 before the DRT-U, Kolkata for recovery of a sum of Rs. 13,76,308/- due and payable from the defendants No 1 towards outstanding dues as on 31't August, 2014 in respect of Cash Credit Loan facilities for the limit of Rs. 1O,OO,OOo/- sanctioned and granted by the APplicant Bank to the Borrower/Defendant No. 1 for enhancing the working capital for his business and trade in Civil Contractors & General Order Suppliers in the name of "M/s K B Das & Sons". The instant O'A' No 1233 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. 697 of 2074' The brief facts of the case as made out in the origlnal APplication by the applicant bank is that the Defendant No' 1is the principal borrower, whereas the Defendant No. 2 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 Loan granted to the Defendant No. 1 on 28'10'2003, the Defendant No. l made a request to the applicant's branch at 10' Sadanand o.

4. Road, Kolkata-700026 for a cash Credit Limit of Rs. 05,00,000/-, which was subsequently enhanced to Rs. 10,00,000/- in response to another application dated 01.12.2004 for boosting his working caPital and submitted the requisite information to secure the loan. The Defendants No. 2 furnished several documents including hypothecation of stock, raw materials, immovable and movable property and also a Letter of Undertaking dated 28.10.2003 and a Demand Promissory Notes dated 28.10.2003 for Rs. 5,oo,ooo/- and dated 20'72'2OO4 fot Rs. 1O,0O,OOO/- to Secure the Demand Cash Credit as guarantor' The Applicant Bank having given due consideration and after proper scrutiny of the application dated 28th October, 2003 submitted by the Defendant No. 1, the princiPal borrower, backed by guarantee provided by the Defendant No. 2, sanctioned the Cash Credit Facility with a limit of Rs. 1O,0O,OO0/- for the purpose of enhancement of his working capital to boost his trade in Civil Contractor and General Order Suppliers to the Borrower vide its Sanction Letter/Facility Agreement dated on 20rh December, 2004, as stipulated in Annexure' The defendant on acceptance of the terms and conditions as contained in the sanction letter dated ZO.l2'2004 and as stipulated in Annexure ofthesaidlettersanctioningtheCashCreditLoanAccount'executed certalndocumentsbackedbyguaranteeprovidedbytheguarantor' belng the Defendants No.2 and a Demand Promissory Note for Rs' 10,O0,OOO/-, as stipulated in Annexure-A-7, with a Promise to pay a total sum of Rs. 1O,OO,OO0/- to the APplicant Bank on demand with interest thereon with monthly rest' The Defendant No. 1, to secure the said Credit Loan executed the Deed of Guarantee agreement on 28ti october' 2OO3 and also on 20.72.2004 in favour of the applicant for Rs' 10'Oo'000/- agreeing to pay interest @ 13.50% per annum wlth monthly rests'

7. On 20.72.2004, the Defendant Applicant Bank in accordance executed the following banking i) A Demand Promissory 2Oth December, 2004. while availing credit facilities with the with the terms and conditions had documents: Note for Rs. 10,00,000/- dated

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9. ii) Deed of Hypothecation of the assets dated 20th December, 2004'

iii) Deed of Guarantee dated 28th October, 2003 executed by the Defendant No. 2. The Defendant had agreed to pay interest @ 13.50o/o per annum with monthly rests from 28.10.2003 till the date of actual payment' Rate of interest is subject to change from tlme to time. 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 31.12.2006 and for which the Applicant through their legal counsel had issued a letter dated 5th May, 2014 Under section 13(2) of the SARFAESI Act, 2002 demanding a payment of Rs. 6,65,285/-. The Borrower, being the Defendant No 1 and the Guarantor being the Defendant No.2 failed and neglected to pay their outstandlng amount in spite of Legal Notice/Recall Notice served on 05.05.2014 asking for a sum of Rs' 6,65,285/- as on 19.09.2014 and interest thereon from 01.10.2006 as stipulated in Annexure - 'A-11'. A sum of Rs 13,76,308/- 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. cr_

10. 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 Rled 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 ls (i) whether the clalm 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 its case. The documentary 'A' to Annexure'P', which applicant bank. and documentary evidence has established evidence comprises from Annexure/Exhibit- are available in paper book filed by the

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13. \4. From the perusal of the documents referred above and the certified copy of the statement of account, which are filed as Annexure'A-1'- 'P', 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 working as Senior Manager of the the applicatlon and the facts stated his affidavit are un-rebutted. affidavit of Shri Atal Behari 14istry, Applicant Bank. The averments in by the witness of the apPlicant in 1). o\

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From the perusal of the of the Statements of Accounts which are at Annexure'A-10, the total outstanding comes to Rs. 6,65,285.41p as on 19.09.2014, 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.6,65,285.41p 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 @ 13.50o/o per annum with simple from the date of filing of the Original Application till the date of realization.

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ORDER

T.A. No. 697 of 2014 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.13,76,308/- (Rupees thirteen lakhs seventy six thousand three hundred and eight only) with pendentelite and future interest @ 13.5olo per annum with simple rate of interest on the amount due from the date of filing of the Original Application, i.e. 26.09 2014 till full and final realization of the clalm 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.

CL

Defendants are debarred from disposing, alienating or dealing with any of the properties belonging to them till the aforesaid decretal debt is recovered from the defendants. Defendants are given a time of thirty days from the date of the ludgement/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 lmmovable) and also proceed against the defendants personally to recover the dues in accordance with Law 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 /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 Offlcer on f8.7i..2020 for further action in accordance with law in the event the entire amount is not paid by the said date'

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Accordingly, the Original Applicatlon being T.A. No 697 of 2014 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 Stenographer, transcribed by him, corrected, lip191-*.' and pronounced by me in the Virtual Court on tf'is, o ) ' )) -

A'K' c"**^ ( ANIL KUMAR CHATURVEDI ) PRESIDING OFFICER.

Order Sheet (Continuation) r: 1," lOrL-

Order

l.' I I No. YA No. 697 ol 2Ol4 UCO Bank vs. Mr. Soumen Das. )ate of Ord€r Order with signature Office action with date and dated Signature of parties when ]1.r, - @€,encms rrofr retidenti.l ,olli.t@tid6;. Al! lhe advocares a.d lhe Slafi joined lhe procQedin8! lhrough video conlerenci.E nom then retiden@s/ofi ic€, Order pronounced (Vide separate sheets consisting 8 pgs)' In the result, T.A. No. 697 of 2014 is allowed with costs' lssue Recovery Certificate accordingly. /}.K. (A, K.Chaturvedi) Presiding Officer DRT-3.Kolkata