STATE BANK OF INDIA vs SRI PARTHA BANERJEE on 10 November 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 initiated by the applicant against the defendants praying for issuance of Recovery Certificate to the tune of Rs. 25,55,035/- together with lnterest, cost and other usual reliefs. 6\

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3. The instant Original Application being Case T.A. No. 1004 of 2015 arising out of No. o.A. 900 of 2010 was filed on 20.07.2010 before the DRT-II, Kolkata for recovery of a sum of Rs. 25,55,035/- due and payable from the defendants No. 1, being the principal borrower, towards outstanding dues as on 31,05.2010 in resPect of the credit facilities to the tune of Rs. 18,00,000/- sanctioned and granted by the Applicant Bank to the Borrower/Defendant under SME Segment Credit Facility (cGFTI Scheme) . The instant o.A. No.900 of 2010 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. 1004 0f 2015. The brief facts of the case as made out in the Original Application by the appllcant bank Is that the defendant made a request to the applicant's branch at New Alipore Branch, Kolkata on or about 02.07.2007 for cash credit Loan facilities of Rs. 18,00,000/- and submitted requisite information by way of Agreement of loan-cum- Hypothecation dated 26.07.2007 and signing of supplementary Agreement of Loan ' cum - Hypothecation dated 18.06.2008 The Applicant Bank having given due consideration and after proper scrutiny of the application dated 2nd )uly, 2007 submitted by the Borrower, being the Defendant, sanctioned a cash credit facilities for limit of Rs. 18,OO,OOO/- only vide its sanction letter dated 25 '07 '2007 to the Borrower. The Defendant on acceptance of the terms and conditions as contained in the sanction letters dated 25.07.2007 and as stipulated in Annexure-'A' executed certain documents and an agreement cum Hypothecation on 26.07.2007, as stipulated in AnnexurerB', with a o'

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5. promise to pay a total sum of Rs. 18,00,000/- to the Applicant Bank on demand with interest thereon with monthly rest. The Defendant again applied before the applicant bank by an application dated 12.06.2008 for financial accommodation. The Applicant Bank, having given due consideration of the application, sanctioned a SME Credit Plus of Rs. 3.60 lakhs on 18.06.2008 under some Terms and Conditions whlch were accepted by the Defendant by putting hls seal and signature thereon as stipulated in AnnexurerC' The Defendant, to secure the said cash credit loan facilities, executed a Supplementary Agreement of Loan cum Hypothecation on 18.06.2008 and a letter of consent in favour of the applicant for Rs. 27,60,OOO/- agreeing to pay interest @ 11.75olo per annum for Cash (EPC) and SME Credit Plus and deposited several other documents whlch was kept as security as stipulated in Annexure - 'B' and Annexure -'D-1'. To secure the loan, defendant agreed and guaranteed for payment of Rs. 21,60,000/- together with interest thereon or on such sum as might be due or at such other rate of interest with the applicant in respect of Cash Credit loan facilities availed of by him. The defendant had executed the following banking documents on: Hypothecation Agreement of Loan dated 26.07,2007 Supplementary Agreement of Loan cum Hypothecation dated 18.06.2008 Letter of consent dated 18.06.2008.

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7. i) ii) iii) The defendant enjoyed the money from operate the cash credit Loan accounts which the loan accounts became the aforesaid loan but falled to effectively and as a result oF irregular NPA in terms of

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10. directives/guidelines of Reserve Bank of India on and from 31./05.2010 and for which the Applicant had issued letters dated 06.07.2010 through its advocate Under Section 13(2) of the SARFAESI Act, 2002. The Borrower belng the Defendant neglected to pay their outstanding amount in spite of letter sent on 06.07.2010 as stipulated in Annexure - 'E'. A sum of Rs. 25,55,035/' 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 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 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 20.02,2020 of this Tribunal. The Tribunal had no other option but to hear ex-parte against the defendant. 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 (l) 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 defendant is 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-

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16. 'A'to Annexure'F', which are available in paper book filed by the a PPlicant bank.

14. From the perusal oF the documents referred above and the certifled copy of the statement of account, which is filed as Annexure'A'-'F', it is established that the defendant had availed the flnanclal facilities from the apPlicant bank and had withdrawn the amount through the account.

15. The oral testimony comprises of an affidavit of Shri Kalyan Kumar Majumder, working as City Case Officer/Deputy Manager of the Applicant Bank. The averments in the application and the facts stated by the witness of the applicant ln this affidavit are un-rebutted' From the perusal of the Statement of Account which is at Annexure'F' the total outstanding comes to Rs.25,55,035/- as on 31'05'2010, which the applicant bank is entitled to recover from the defendant' t7. In vlew of the above 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. 25,55,035/- from the defendant who is liable for the same. The applicant bank shall also be entitled to pendentelite and future interest on the said amount @ l:..75o/o per annum with simple rate of interest from the date of filing of the Original Application till the date of realization.

ORDER

(1) T.A. No. 1OO4 of 2015 filed by the Applicant Bank is allowed and debt is determined with cost against the defendant lt is hereby ordered that applicant bank is entitled to recover from the defendants the total amount to the tune of Rs' 25,55,035/- a

(Rupees twenty five lakhs fifty five thousands and thirty five only) with pendentelite and future interest @ 11.750lo per annum with monthly rests with simple rate of interest on the amount due from the date of filing of the Original Application, i.e. 20.07.2O1O till full and final realization of the claim amount.

(2) 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 the exact amount of dues/debt payable by the defendant. Accordlngly. pendentelite and future interest shall be calculated on the reduced amount.

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

Defendant is given a time of thirty days from the date of the Judgement/Final Order for repaying of the above mentioned dues, so intimated to him. 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 against the defendant personally to recover the dues in accordance with Law. 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.

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(6) Ld. Recovery Omcer 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 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.

The parties are directed to appear before the Recovery Offlcer on f8.12.2020 for further actlon in accordance with law in the event the entire amount is not paid by the said date. Accordingly, the Original Application being T'A. No. 1004 of 2015 is allowed and stands disposed of. Copy of the ludgement/Final Order be uploaded in the Tribunal's website. File is consigned to the Record Room. ( Dictated to Steno, pronounced by me in transcribed by him, corrected. signed,and^ a the virtual court on this the, ldf Nrv'2qlo A'\.' '^*^*^' ANIL KUMAR CHATURVEDI PRESIDING OFFICER.

Order Sheet (Continuation) older No.20 pt.\, - l)-2, No. TA No. ,.0O4 of 2015 state Bank of India vs. Sri Partha Banerjee )ate of

Order

Order with signature Office action with date and dated signature ;:ia>1 llhe treedmrs o, the .oun .r. condu.ted lhrouah vid.o @'leren'i'8 itom rBid€'rirl otftcevesdencei. als the adrc..tes .nd the st.fi joined th. crce.di'$ thtouSi vids I (o^teend.g ftom ther etidei.evofE, Order pronounced (Vide separate sheets consisting 7 pgs), In the result, T.A. No. 1OO4 of 2015 is allowed with costs. lssue Recovery Certifi cate accordingly. p.x orffir- (A. K.Chaturvedi) Presiding Officer DRT-3,Kolkata