UCO BANK vs PRASAD KUMAR MITRA & ORS on 4 November 2020

JUDGEMENT

Counsel for the Applicant Bank: Counsel for the Defenda nts: This is an Original Application made under Section 19 of the Recovery of Debts Due to Banks and Financlal Institutions Act, 1993 initiated by the applicant against the defendants praying for issuance of Recovery Certificate to the tune of Rs. 72,47,526l- together with interest, cost and other usual reliefs. o-

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3. The instant Original Application being Case T.A. No. 690 of 2014 arising out of No. O.A. 7226 of 2014 was filed on 26.09.2014 before the DRT-II, Kolkata for recovery of a sum ol Rs. 72,47,526l- due and payable from the defendants No. 1 towards outstanding dues as on 2Oth July, 2014 in respect of Cash Credit Hypothecation Loan facilities for the limit of Rs. 4,00,000/- sanctioned and granted by the Applicant Bank to the Borrowers/Defendants No. 1& 2 for enhancing the working capital for their business and trade. The instant O.A. No.1226 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. 690 of 2074. The brief facts of the case as made out in the Original Application by the applicant bank is that the Defendant No. 1 & 2 are the principal borrowers, whereas the Defendant No. 3 stood as a guarantor and promised to repay all the indebtedness and liabilities of the said Defendant No. 1 & 2 to the applicant Bank in respect of the Cash Credit Hypothecation Loan granted to the Defendant No. 1 & 2. On 08.07.2005, the Defendant No. 1 & 2 made a request to the applicant's branch at Basirhat Branch, Itinda Road, P.O. & p.S. Basirhat, Dist. 24 Parganas North, Pin -74341t for a Cash Credit Limit of Rs. 5,00,000/- for boosting their working capital and submitted the requisite information to secure the loan. The Defendants No.3 furnished several documents including mortgage conformation dated 06.08.2005 vide Title Deeds No. 3994 & 4069 for the year 1989 to Secure a Demand Cash Credit and a Demand Promissory Note duly executed by the Defendant No. 1 for Rs. 4,00,000/- dated 04.08.2005 as guarantors. The Applicant Bank having given due consideration and after proper scrutiny of the application dated 8th July, 2005 submitted by the Defendant No. 1 & 2, the principal borrowers, backed by R

guarantee provided by the Defendant No.3, sanctioned the Cash Credit Facility with a limit of Rs. 4,00,000/- to the Borrowers for the purpose of enhancement of their working capital to boost trade vide its Sanction Letter/Facility Agreement dated on 4th August, 2OO5 as stipulated in Annexure - A.

4. The defendants on acceptance of the terms and conditions as contained in the sanction letter dated 04.08.2005 and as stipulated in Annexure-A of the said letter sanctioning the Cash Credit Loan Account, executed certain documents backed by guarantee provided by the guarantor, being the Defendant No. 3 and a Demand Promissory Note for Rs. 4,00,00O/-, as stipulated in Annexure-D, with a promise to pay a total sum of Rs. 4,00,000/- to the Applicant Bank on demand with interest thereon with monthly rest.

5. The Defendant No. 1 & 2, to secure the said Credit Loan executed the Deed of Guarantee agreement on 4th August, 2OO5 in favour of the applicant for Rs. 4,00,000/- agreeing to pay interest @ 11olo per annum with monthly rests.

7. On 04.08.2005, the Defendants while avaiting credit facilities with the Applicant Bank in accordance with the terms and conditions had executed the following banking documents: i) A Demand Promissory Note for Rs. 4,00,000/- dated 4th August, 2005. ii) Deed of Mortgage Conformation of the assets dated 6th August, 2 005. Deed of Guarantee dated 4th August, 2005 executed by the Defendant No. 3. iii) o-

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8. The Defendants had agreed to pay interest @ 11olo per annum with monthly rests from 04.08.2005 till the date of actual payment. Rate of interest is subject to change from time to time. The Defendant enjoyed the money from the aforesald loan but failed to operate Cash Credit Loan accounts effectively and as a result of which the loan accounts became irregular NPA and for which the Applicant had issued letter dated 08.05.2014 under section 13(2) of the SARFAESI Act, 2002 demanding a payment of Rs. 12,09,993/- as on 37.03.2014. The Borrowers, being the Defendant No. 1 & 2 and the Guarantor being the Defendant No. 3 failed and neglected to pay their outstanding amount in spite of Legal Notice/Recall Notice served on 08.05.2014 asking for a sum of Rs. 12,09,993/- as stipulated in Annexure - 'G'. A sum of Rs. 72,09,993/- is due against the defendants which they 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 Origlnal 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 defendants as a result of which they were proceeded ex-parte vide order dated 09.01.2020 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

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12. 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?

13. The applicant bank by oral and documentary evidence has established its case. The documentary evidence comprises from Annexure/Exhibit- 'A' to Annexure 'I', which are available in paper book filed by the applica nt bank.

74. From the perusal of the documents referred above and the certified copy of the statement of account, which are filed as Annexure ,A, - .I,, it is established that the defendants had availed the financial facilities from the applicant bank and had withdrawn the amount through the account.

15. The oral testimony comprises of Mandal, working as Manager of the the application and the facts stated his affidavit are un-rebutted. an affidavit of Shri Debangshu Applicant Bank. The averments in by the witness of the applicant in

16. From the perusal of the of the Statements of Accounts which are at Annexure'F', the total outstanding comes to Rs. 12,47,526/- as on 20.07.2014, which the applicant bank is entifled to recover from the defendants.

17. 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. t2,47,526/- 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 @ 110/o per cr.\

annum with simple from the date of filing of the Original Application till the date of realization.

ORDER

(1) T.A. No. 690 of 2014 fited by the Appticant Bank is allowed and debt is determined with cost against the defendant. It is hereby ordered that applicant bank is entifled to recover from the defendants the total amount to the tune of Rs.t2,47,5?6/ - (Rupees twelve lakhs forty seven thousands five hundred twenty six only) with pendentelite and future interest @ lto/o 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 claim 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. Defendants are debarred from disposing, alienating or dealing wlth any of the properles 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 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

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also proceed against the defendants personally to recover the dues in accordance wlth Law.

(5) Let the Certjficate 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.

(6) Ld. Recovery OFficer 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 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 Financaal 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 27.11.2020 for further action in accordance with law in the event the entire amount is not paid by the said date. Accordingly, the Original Application being T.A. No, 690 of 2014 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. ( Dlctated to Steno, transcribed by him, corrected, signed and pronounced by me in the virtual court on this,ll. !l - 2o2o) A'R'o^**^ ANIL KUMAR CHATURVEDI PRESIDING OFFICER.

Order Sheet (Continuation) Case No. TA No. 59O of 2014 Uco Bank vs. Prasad Kumar Mitra & Ors. Date of

Order

Order with signature Office action with date and dated Signature OJ(le!-N!. ot o\-)\- brder pronounced (vide separate sheets). h^ V-"^'\'^-{ C.r'n ' In the result, T.A. No. 690 of 2014 is allowed with costs. Issue Recovery Certificate accordingly. (A. K.Chaturvedi) Presiding Officer DRT-3,Kolkata