Indian overseas Bank vs Sri Dipankar saha on 22 December 2025

**J U D G M E N T**

1. 1. This is an application under section 19 of the Recovery of Debts and Bankruptcy Act, 1993, filed by the applicant bank against the sole defendant seeking issuance of Certificate of Recovery for realization of a sum of Rs.1,05,02,548.15p (Rupees one crore five lakhs two thousand five hundred forty eight and paise fifteen) only with interest calculated upto 26.04.2014 and future interest from 27.04.2014 @12.50% p.a. with monthly rests till realization of the entire amount along with injunction restraining the defendant from disposing of and/or alienating and/or encumbering the personal charged and uncharged assets and also costs.

The facts in brief, giving rise to the present application as pleaded are that considering the application of the defendant, the Applicant Bank Sanctioned the Term Loan under CGTMSE Scheme to the tune of Rs. 99,45,000.00 (Rupees ninety nine lakhs forty five thousand) only, vide Sanction Letter dated 30.03.2012 for purchase of four Nos. AMWL make Tipper Trucks Model – 2518 along with its list of equipments of Asia Motor Works. The defendant on 30.03.2012 executed Demand Promissory Note, Deed of Hypothecation, and Letter of Undertaking. After availing the loan, the defendant failed to repay the dues of the said loan amounts and as such the account was classified as N.P.A. on 01.07.2013. Thereafter the bank issued Demand Notice dated 09.01.2014 through its Advocate but the defendant did not comply with the said Notice. The (Contd...)

22/12/2025

Siliguri applicant bank also issued a Notice dated 21.02.2014 under section 13(2) of the SARFAESI Act, 2002. After giving credits for all sums of moneys paid by and/or realized on behalf of the defendant a sum of Rs.1,05,02,548.15p (Rupees one crore five lakhs two thousand five hundred forty eight and paise fifteen) only with interest calculated upto 26.04.2014 was due against the defendant in respect of the term loan account No. 045803271200003.

3. The defendant appeared and filed written statement stating inter-alia that the application is not maintainable either in law or in facts and there is no cause of action for filing the instant application. According to the defendants the application is barred by principle of law of limitation, estoppel, acquiescence and waiver and it is also bad for non-joinder of necessary parties. It has been pleaded by the defendant that in March, 2012 the Directors of Blue Sharks Auto Works Private Limited i.e. Sri Sumit Das and Smt. Anamika Banik @Das contacted the defendant and introduced the defendant with Sri Sarat Chandra Nayak i.e. the erstwhile Manager of the applicant bank who assured the defendant that he as a Bank Manager could arrange funds for the defendant for purchasing 4 AMW vehicles. That the defendant was not aware of the any CGTMSE scheme or term loan or any loan amount and the aforesaid persons took signature in several blank cheques as well as some blank documents and also took several personal documents from the defendant. That after few months the defendant came to know that a loan of Rs. 99,45,000 /- was sanctioned in favour of the defendant by the Sri Sarat Chandra Nayak i.e. the Manager of the applicant bank whereas no vehicle was supplied to the defendant and moreover the Manager of the applicant bank paid the entire amount to Blue Sharks Auto Works Private Limited. That the defendant after receiving some letters from bank came to know that huge amount is overdue in his loan account and the defendant after receiving those letters contacted to the Directors of the Blue Sharks Auto Works Private limited and the Manager of the applicant bank but they misbehaved with the defendant and threatened to lodge false complaints against him. That the Manager of the applicant bank also threatened the defendant that he will initiate default proceedings against the defendant. Further plea of the defendant is that Manager of the applicant bank took signature of the defendants in some blank papers and subsequently filled up the same to convert those documents into valuable securities. It is further submitted that the statement of the applicant bank that the defendant is possessing hypothecated vehicles in his custody is absolutely false and it is Wp 25.12.2023

Siliguri

(Contd...)

unfortunate that a huge loan amount was sanctioned to the defendant and the entire loan amount was handed over to the Blue Sharks Auto Works Private Limited illegally by Manager of the applicant bank against the price of 4 (four) vehicles whereas not a single vehicle was handed over to the defendant. That from the notice issued by the applicant bank, the defendant came to know that four vehicles were shown as the defendant's hypothecated vehicle and the defendant is very much sure that no such vehicles exists in his name. That the defendant several times visited the applicant bank and the office of the Blue Sharks Auto Works Private Limited and to that effect Sri Sumit Das, one of the Director of the Blue Sharks Auto Works Private Limited issued the defendant four cheques drawn on ICICI bank, Sevoke Road Branch. Subsequently the cheques were deposited by the defendant in the applicant bank and all the cheques were returned by icici bank for the reason "account closed". That the defendant went to Bagdogra Police Station on several occasions to lodge complaint against the accused persons but they refused to accept the same, then the defendant lodged a complaint before the Commissioner of Police, Siliguri Police Commissionerate on 01.12.2015 but no specific case was started against the accused persons and the applicant bank. That the defendant also filed case bearing No. 44 of 2016 dated 24.02.2016 under section 156 (3) of Cr.P.C. before the Ld. A.C.J.M. at Siliguri on 08.02.2016 and the same is under investigation.

The defendant also filed an additional written statement reiterating the statements made in the written statement filed by them. It is further submitted that exorbitant rate of interest was levied. According to the defendant he had never approached the bank for any credit facilities.

5. The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Dipankar Saha, the witness of the Applicant Bank and also relied upon the following documents:- <table border="1"> <thead> <tr> <th>Sl. No.</th> <th>Name of the documents</th> <th>Exhibit No.</th> </tr> </thead> <tbody> <tr> <td>1.</td> <td>Loan Application</td> <td>A</td> </tr> <tr> <td>2.</td> <td>Credit Sanction Advise dated 30.02.2012</td> <td>B</td> </tr> <tr> <td>3.</td> <td>Demand Promissory Note dated 30.02.2012</td> <td>C</td> </tr> <tr> <td>4.</td> <td>Deed of Hypothecation dated 30.02.2012</td> <td>C-1</td> </tr> <tr> <td>5.</td> <td>Supplemental Deed of Hypothecation dated 30.02.2012</td> <td>C-2</td> </tr> <tr> <td>6.</td> <td>Demand Notice dated 09.01.2014</td> <td>D</td> </tr> <tr> <td>7.</td> <td>Notice under section 13(2) of the SARFAESI Act dated</td> <td>E</td> </tr> </tbody> </table>

(Contd...)

lno 22.12.2025

Siliguri

<table border="1"> <tr> <td></td> <td>21.02.2014</td> <td></td> </tr> <tr> <td>8.</td> <td>Statement of Term Loan account</td> <td>F</td> </tr> <tr> <td>9.</td> <td>Schedule of hypothecated movable assets</td> <td>X</td> </tr> </table>

6. I have heard the learned counsel for the applicant bank and perused the documents and evidence adduced by the applicant bank as well as the written statement and additional written statement of the defendant.

7. Plea of the defendant is that he never availed any credit facility from the Bank rather the Branch Manager of the Hill Cart Road Branch introduced him to one Sumit Kumar Das and Anamika Banik who were purportedly desirous of availing credit facilities for purchase of vehicles and the defendant was merely asked to formally introduce them being the person of repute of the locality and with bonafide belief he signed several unfilled documents and gave blank cheque also. Smelling about the conspiracy the defendant filed a written application for lodging of F.I.R. (Annexure-A of the additional written statement).

8. The defendant himself adduced his evidence as witness that he was not aware of any CGTMSE Scheme but the Bank officer and the Directors of Blue Sharks Automobiles Ltd. i.e. Sumit Das and Anamika Banik took his signature over several blank cheques and documents and later on he came to know that Rs. 99,45,000/- was sanctioned but no vehicle was supplied to him even then Rs. 88,45,000/- was paid to Blue Sharks Auto Works Pvt. Ltd.

Neither the applicant bank filed any rejoinder after receipt of the W.S. or additional W.S. nor cross-examined the defendant. Though in the order sheet it is nowhere mentioned regarding filing of affidavit in evidence of the defendant but it transpires from the record that before the order-sheet dated 05.04.2018 it was being mentioned in the order-sheet that the defendant had to file evidence on affidavit but after 05.04.2018 no such direction has been given. It is pertinent to mention that affidavit of the defendant is of dated 05.04.2018 and it seems that on 05.04.2018 evidence on affidavit of the defendant was filed but inadvertently it was not mentioned in the order sheet dated 05.04.2018. The most surprising thing is that the applicant bank did not file any rejoinder of the written statement or additional written statement filed by the defendant wherein availing of loan and delivery of vehicles were specifically denied by the defendant.

10. From perusal of the record it transpires that vide order dated 18.01.2017 Ld. Counsel Mr. Kamal Chakraborty was appointed as Receiver in this matter with the direction and 22/2/2018

Siliguri

(Contd...)

authority to visit the Registration Office of four vehicles as described in Schedule-'X' of the O.A. to verify that whether the said vehicles stand in the name of the defendant and also to ascertain the location of vehicles and to verify the genuineness of the registration certificates, engine No., Chassis No. of the vehicles from the records of the vehicle dealer even after verifying the original Bills/Invoices of the vehicles.

11. Ld. Receiver has filed his interim report wherein it is mentioned that he had visited the RTO office, Kohima (Nagaland) where he found that registration No. and other information were valid. But the Ld. Receiver did not file any report with respect to the location of the vehicles or the verification of Engine No. & Chassis Nos. from the dealer. It creates doubt that as to why only the interim report was filed by the Ld. Receiver and he did not choose to file the final report in the matter. It is pertinent to mention that earlier also this matter was fixed for order to be passed on dated 07.12.2022 but this Tribunal did not pass the order as the final report of the Ld. Receiver was not filed. Thereafter repeatedly till 02.01.2024 (for more than a year) direction was given to the Ld. Receiver to file the report which he never filed. Even the applicant bank was also asked to approach the Ld. Receiver for filing the report but the Bank also did not inform to the Tribunal as to why final report is not being filed.

12. Again the instant matter was fixed for passing order on dated 26.03.2025 but the final order was not passed rather the applicant bank was directed to file certain documents which were required for final adjudication of the matter. Order of this Tribunal passed on dated 26.03.2025 is extracted here-in-below :

26/3/2025

Siliguri

Item No. 33

Order No. 60

26.03.2025

Present:

Counsel for the applicant : Mr. P. Joarder.

Counsel for the defendant : None.

The case is listed today for passing final order but from perusal of the record it transpires that for proper and final adjudication of the matter following documents are required which have not been filed by the applicant bank and they are :-

1. 1. Post Sanction verification of loan ;

2. 2. Details of the account in which loan amount has been credited from the loan account of the defendant ;

3. 3. By whom margin money was paid and whether it was directly paid to the dealers of the vehicles or margin money was deposited in the loan account of the defendant and if margin money was deposited through demand draft then who got it prepared - entire details ; (Contd...)

1. 4. Copy of the delivery order issued to the dealer

2. 5. From whose account EMI was paid on various dates

3. 6. What step was taken by the applicant bank to take possession of the hypothecated vehicles and

4. 7. Document regarding confirmation of dealer that the vehicles were delivered to the defendant.

In this view of the matter, direction is given to the applicant bank to file the original Post Sanction verification and Confirmation Letter of the dealer regarding delivery of vehicles and other documents mentioned here-in-above positively from two weeks from today.

List this matter on 14.05.2025

(RAKESH PATIL TIWARI)

DRT-Siliguri

13. After taking more than 6 months time the applicant bank has filed the following documents :-

1. (1) Original Tax Invoice of Four No. of vehicles

2. (2) Photocopy of Registration Certificate of the vehicles

3. (3) Photocopy of statement of account

4. (4) Photocopy of case intimation Letter dated 09.06.2016 and its compliance. "

14. The aforesaid documents have not been filed as per The Bankers' Books Evidence Act and in support thereof even the affidavit has also not been sworn. It seems that very casually these documents have been filed which have no co-relation with the documents which were called for by this Tribunal, vide order dated 26.03.2025.

15. The documents which were called for by this Tribunal were nothing but the very common documents which must have been available with the bank when the CGTMSE loan was sanctioned for purchase of vehicles. Let the purpose of seeking the documents be explained as under :-

1. (i) First document which was called for by the Tribunal is the post sanction verification of loan wherein the lending institution satisfies itself that the purpose for which loan was sanctioned is complied by the borrower and in case of vehicle loan generally a photograph of the vehicle alongwith the borrower is kept in the recorded.

2. (ii) 2^nd and 3^rd documents were called for to verify that whether loan amount was directly paid to the dealer of the vehicle or it was credited in the account of the borrower. From (Contd...)

22.12.2025

Siliguri the statement of account filed by the applicant bank it transpires that on 30^th March, 2012 loan amount of Rs. 99,45,000/- was transferred by the bank in the account of defendant and on same date i.e. 30.03.2012 Rs. 20,00,000/- was deposited in cash but it is not made clear that by whom this cash amount of Rs. 20.00 lakhs was deposited which may have been deposited as the margin money and on same day i.e. 30.03.2012 Rs. 1,17,00,000/- was transferred to the Blue Sharks Auto Works Co. It is pertinent to mention that the loan was also sanctioned on 30.03.2023, thus in a single day all the process have been completed which raises serious doubts in the transaction.

(iii) Fourth document which was called for by the Tribunal is the delivery order issued to the dealer. General practice of all the lending institutions is that after transfer of amount to the dealer a delivery order is issued to the vehicle dealer to deliver the vehicles to the purchaser but the Bank failed to produce any such delivery order issued to the dealer.

(iv) An information was sought for from the Bank that by whom the EMIs, if any, have been paid. In the instant matter it transpires from the statement of account that several EMIs have been paid but the Bank did not provide the details by whom it was paid.

(v) After sanction of loan and creation of hypothecation of the vehicles Bank Officers were required to remain vigilant that the purchased and hypothecated vehicles are not transferred, exchanged/destroyed by the purchaser but the Bank did not inform to this Tribunal that what action was taken by it to take possession of the vehicles when the loan account became NPA.

Last document which was called for by this Tribunal is regarding confirmation of dealer that the vehicles were delivered to the defendant and this document is always sent by the dealer to the lending institution. In this matter the defendant has pleaded that actually vehicles were never handed over to him by the dealer. Applicant bank did not provide the said document.

16. Under section 119 of the Bhartiya Sakshya Adhiniyam 2023 the court may presume existence of certain facts and as per illustration (g) the court may presume that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Thus law of presumption is against the applicant bank.

17. From perusal of the record it transpires that CGTMSE term loan of Rs. 99,45,000/- was sanctioned to the defendant for purchase of AMWL make Tipper Trucks and it has come that purported purchased Trucks were got registered in Kohima (Nagaland). Question arises that why instead of West Bengal or any other neighboring state they were (Contd...)

hy 22/03/2025 Presiding Officer: Debts Recovery Trial Siliguri registered in RTO Office, Kohima (Nagaland) ? It is pertinent to mention that if any vehicle is to be registered in other state, transit registration No. has to be given and when vehicle is purchased by taking loan from any Bank 'No Objection' has to be given by the concerned Bank but in the instant matter applicant did not disclose that whether any such 'No Objection' was given or not ? All these facts are sufficient to draw an apprehension of connivance in between the loan sanctioning Branch, local dealer and the defendant as well. Bank has proved various documents such as credit sanction advice (Ext.- B), Demand Promissory Note (Ext.-C), Deed of Hypothecation (Ext. C/1 & C/2) which bears the signature of defendant and thus it cannot be said that the defendant is so innocent as he is presenting before this Tribunal that only to introduce some one he had signed on various blank papers. Thus there may be connivance of defendant as well in this fraud.

18. Credit Guarantee Fund Trust for Micro and Small Enterprises (CGTMSE) Scheme was formulated for the purpose of providing guarantees in respect of credit facilities by the lending institutions to the borrower in Micro & Small Enterprises. As per the guidelines of RBI Banks were mandated to provide the loans to MSMEs without any collateral security but there are certain responsibilities of lending institution under the scheme which runs as under :-

(i) The lending institution shall evaluate credit applications by using prudent banking judgment and shall use their business discretion /due diligence in selecting commercially viable proposals and conduct the account(s) of the borrowers with normal banking prudence.

(ii) The lending institution shall closely monitor the borrower account.

(iii) The lending institution shall safeguard the primary securities taken from the borrower in respect of the credit facility in good and enforceable condition.

(iv) The lending institution shall ensure that the guarantee claim in respect of the credit facility and borrower is lodged with the Trust in the form and in the manner and within such time as may be specified by the Trust in this behalf and that there shall not be any delay on its part to notify the default in the borrowers account which shall result in the Trust facing higher guarantee claims.

(v) The payment of guarantee claim by the Trust to the lending institution does not in any way take away the responsibility of the lending institution to recover the entire outstanding amount of the credit from the borrower. The lending institution shall exercise all the necessary precautions and maintain its recourse to the borrower for entire (Contd...)

Mo 22/12/2025

Siliguri amount of credit facility owed by it and initiate such necessary actions for recovery of the outstanding amount, including such action as may be advised by the Trust.

(vi) The lending institution shall comply with such directions as may be issued by the Trust, from time to time, for facilitating recoveries in the guaranteed account, or safeguarding its interest as a guarantor, as the Trust may deem fit and the lending institution shall be bound to comply with such directions.

(vii) The lending institution shall, in respect of any guaranteed account, exercise the same diligence in recovering the dues, and safeguarding the interest of the Trust in all the ways open to it as it might have exercised in the normal course if no guarantee had been furnished by the Trust. The lending institution shall, in particular, refrain from any act of omission or commission, either before or subsequent to invocation of guarantee, which may adversely affect the interest of the Trust as the guarantor. In particular, the lending institution should intimate the Trust while entering into any compromise or arrangement, which may have effect of discharge or waiver of personal guarantee(s) or security. The lending institution shall also ensure either through a stipulation in an agreement with the borrower or otherwise, that it shall not create any charge on the security held in the account covered by the guarantee for the benefit of any account not covered by the guarantee, with itself or in favour of any other creditor(s) without intimating the Trust. Further the lending institution shall secure for the Trust or its appointed agency, through a stipulation in an agreement with the borrower or otherwise, the right to list the defaulted borrowers' names and particulars on the Website of the Trust.

22-72-2015

Siliguri

1. 19. From perusal of the documents filed by the applicant bank it transpires that application for loan (Ext-A) was filled up by the Bank authorities because it is computer generated and only the signature of the borrower was obtained but in the loan application knowingly date is not mentioned and this column has been left blank (running page No. 29 & 30) whereas from perusal of the Credit Sanction Advice (Ext-B) it transpires that although First Line Manager had signed but there is no signature of Assistant Manager over it (running page 31 to 35 & 37).

2. 20. After sanction of the loan by the Branch Manager of Hill Cart Road, Siliguri, loan documents must have been verified/checked by the higher authorities of the Bank and question arises that why they did not smell the conspiracy and thus higher authorities of (Contd...)

the Bank may also be responsible for their negligence in this matter where almost one crore has been defrauded.

1. 21. Defendant has averred in his written statement that he had initiated one criminal proceeding as well by filing case No. 44 of 2016 and the matter was under investigation but the outcome of the investigation has not been brought before this Tribunal by any of the parties. In the considered opinion of this Tribunal this is such a scam which requires thorough investigation by any central agency because huge money of government scheme has been defrauded.

2. 22. In view of the discussions made here-in-above this Tribunal is of the view that it is not a case of debt rather it is a case of embezzlement of huge amount with the connivance of the Bank officials and thus O.A. case of the applicant bank is hereby **dismissed**.

3. 23. No order as to cost.

4. 24. Let this judgment be uploaded on website of the tribunal and the Registry is directed to serve/send copy of this judgment to the parties free of cost.

5. 25. Record is consigned to the record room along with the judgment.

The judgment is signed and pronounced in the open Tribunal on 22^nd day of December, 2025.

*Rakesh Pati Tiwari* (RAKESH PATI TIWARI) 22/12/2025

DRT, Siliguri.

Siliguri