STATE BANK OF INDIA vs Ranjit Saha & others on 29 December 2023

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

1. This is an application under section 19 of the Recovery of Debts and Bankruptcy Act, 1993, filed by the applicant bank against the defendants seeking issuance of Certificate of Recovery for realization of a sum of Rs. 10,86,764.00 (Rupees ten lakhs eighty six thousand seven hundred and sixty-four) only with interest calculated upto 30.11.2009 and future interest from 01.12.2009 @9.50% p.a. with monthly rests till realization of the entire amount along with injunction restraining the defendants from disposing of and/or alienating and/or encumbering the personal charged and uncharged assets and also costs.

2. The facts in brief, giving rise to the present application as pleaded are that considering the request of the defendant No.1, the applicant bank sanctioned a Cash Credit (Produce Marketing Loan) of Rs.10,00,000/- (Rupees ten lakhs) only in favour of the defendant No.1 for the potato business, vide Loan Application and Sanctioning Memo dated 27.03.2008. The defendant No.1 executed Demand Promissory Note and (Contd...)

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Siliguri

Delivery Letter of said D.P. Note dated 27.03.2008 as well as declaration in the form of consent in favour of the applicant bank regarding taking action against the defendant in case of failure of repayment of loan. The defendant No.2, the Director of Bandhu Multipurpose Cold Storage (Pvt.) Ltd. stood as guarantor and executed Guarantee Agreement. According to the applicant bank after availing the loan, the defendants failed to repay the dues of the loan account as a result of which the loan account was classified N.P.A. The defendant No.1 lastly deposited by cash a sum of Rs. 75,000/- on 28.11.2008. Inspite of reminders and requests the defendants did not regularize the loan account and as such the applicant bank through its Advocate issued a Demand Notice dated 14.05.2009 to the defendants but the defendants did not comply with the same. After giving credits for all sums of moneys paid by and/or realized on behalf of the defendants a sum of Rs. 10,86,764.00 (Rupees ten lakhs eighty six thousand seven hundred and sixty-four) only with interest calculated upto 30.11.2009 was due against the defendants in respect of the loan account No. 30356512954.

3. The defendant No.1 appeared through his counsel and filed his written statement, stating inter-alia that the application is not viable and the application is barred by principle of waiver, estoppels and acquiescence. Further, the applicant bank has no locus-standi to file the instant application and the application is bad for non-joinder of necessary party. The contention of the defendant is that he mainly cultivates and trades in potato and the potatoes were stored in the cold storage in the month of March/April after harvest season and the same is usually stored upto November and it is only in the last week of December every year that the potatoes are cleared from the cold storage in order to ensure maintenance works with a view of fresh arrival of potato produce. The further contention of the answering defendant is that he had availed a financial assistance of Rs. 10.00 lakhs from the applicant bank in the nature of Produce (Marketing) Loan scheme by hypothecating potatoes weighing 5000 quintals, the market price of the same stood at Rs. 435/- per quintal thus aggregating to Rs. 21,75,000/-. That in the year 2008 the potato traders/cultivators had to face serious hardship owing to numerous factors viz. bumper potato produce, market crash during unloading period and several other factors and witnessing the sorry state of affairs and the plight of farmers, (Contd...)

29/12/2023

Siliguri the Government of West Bengal extended the season period by one month which was mainly aimed at restraining the bank from taking any coercive action against the potato traders/cultivators but the applicant bank filed this frivolous case against him solely in order to harass him by deriving unlawful pecuniary gain. The defendant No.1 pleaded that copy of sanction letter was not supplied to the defendants and the defendants were caused to put signatures on several blank and unfilled paper, documents and printed forms. Further, the answering defendant time and again requested the applicant bank to provide statement of account but the applicant bank paid no heed to the request of the defendant.

4. The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri Chanchal Baidya, the Chief Manager 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 and Sanctioning Memo dated 27.03.2008</td> <td>A</td> </tr> <tr> <td>2.</td> <td>Demand Promissory Note, Delivery Letter of D.P. Note, Declaration in the form of consent, all dated 27.03.2008</td> <td>B</td> </tr> <tr> <td>3.</td> <td>Non-encumbrance Certificate</td> <td>C</td> </tr> <tr> <td>4.</td> <td>Statement of account</td> <td>D</td> </tr> <tr> <td>5.</td> <td>Guarantee agreement by the defendant No.2</td> <td>E</td> </tr> <tr> <td>6.</td> <td>Notices dated 25.02.2009, 17.04.2009 and 14.05.2009</td> <td>F</td> </tr> </tbody> </table>

5. I have heard the learned counsel for the applicant bank and the learned counsel of the defendant No.1 and perused the documents and evidence adduced by the applicant bank as well as the written statement filed by the defendant No.1.

6. The defendant No.1 has advanced the argument that the application is barred by principle of waiver, estoppels and acquiescence. However, the defendants have neither specifically stated as to how the application is barred by the principles of waiver, estoppels and acquiescence nor they have filed any specific document to establish this plea. So far the plea of the defendant No.1 that the defendants were caused to put signatures on several blank and unfilled paper, documents and printed forms is concerned, this plea is also not tenable under the law and whenever signature is made on any document, the same is presumed to be signed only after going through its contents. The defendant No.1

(Contd...)

hp 29/2-2013

Siliguri has strenuously argued that the applicant bank has no locus-standi to file the instant application. I do not find any force in this contention as the applicant has sufficient cause of action for filing the instant application due to disbursement/availment of loan to/by the defendant and on default in repayment of the loan by the defendants, in spite of demands made, as per exhibited documents filed by the applicant bank. The defendant No.1 has pleaded that the instant application is barred by limitation but the applicant bank has filed this application within three years from the date of sanction of loan and execution of documents on 27.03.2008 and as such the application is within the limitation period.

7. Although the defendant No.1 has accepted the availing of loan of Rs.10.00 lakhs from the applicant bank but his case is that the defendants suffered a huge loss in potato business due to market crash during unloading period of potatoes from the cold storage. His further plea is that considering the sorry state of affairs and the plight of farmers, although the Government of West Bengal had extended the season period of potato for one month but the applicant bank has filed this frivolous case in order to harass the defendants.

8. The defendant No.1 himself has admitted that he had stored 5,000 quintals of potato in cold storage worth of Rs. 21,75,000/- which was double to the loan amount and the said potato products was hypothecated with the bank but the question arises that why the defendant did not deposit the amount after selling out the potatoes even on low price. It is not the case of the defendant No.1 that he never received the potato stocks from the cold storage or they perished either in the cold storage or outside of the cold storage. Had the defendant No.1 being an honest borrower, the loan amount would have been deposited at least in next season of potatoes but instead, the defendant No.1 has pleaded that the statement of account was not being provided. It is pertinent to mention here that the statement of account from 27.03.2008 to 12.02.2010 is attached with the O.A. case (Annexure-'D') and as per the statement of account the outstanding dues is Rs.10,86,764.00 along with interest calculated upto 30.11.2009.

9. Well settled principle of law is that those who take loan and avail financial facilities from the bank are duty bound to repay the amount strictly in accordance with the terms of the contract and the bank is not only entitled but duty bound to recover the (Contd...)

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Siliguri amount by adopting all legally permissible methods and in this circumstance it cannot be said that just to harass the defendants the O.A. case has been filed by the applicant bank.

10. The Applicant bank has proved its claim by adducing documentary evidences which are marked as Exhibit 'A' to 'F'. The sanction of loan has been proved by producing the Sanction Letter dated 27.03.2008 (Exhibit 'A'), the execution of required documents like Demand Promissory Note, Delivery Letter of D.P. Note, Declaration in the form of consent, Non-encumbrance Certificate etc. have been proved by exhibiting the same at 'B' & 'C'. By filing the statement of account (Exhibit-'D'), the applicant bank has proved the total outstanding dues of Rs. 10,86,764.00 (Rupees ten lakhs eighty six thousand seven hundred and sixty-four) only with interest calculated upto 30.11.2009 against the defendants.

11. There is nothing available on the record to contradict the version of the applicant bank. Thus the applicant bank has sufficiently proved its case by exhibiting all relevant documents.

In the above circumstances, following order is passed ;

ORDER

(i) T.A.No.711/2017 arising out of O.A. No. 784/2010 filed by the applicant bank is allowed against the defendants No. 1 & 2 jointly and severally with costs and it is hereby ordered that the applicant bank is entitled to recover the total dues debt amount of Rs.10,86,764.00 (Rupees ten lakhs eighty six thousand seven hundred and sixty-four) only with interest calculated upto 30.11.2009 and further interest thereon @9.50% p.a. with monthly rests from 01.12.2009 till realization of entire balance from the defendants along with cost amount.

(ii) Amount, if any, paid by the defendants in the loan account or amount recovered by the applicant bank, if any, made towards the loan accounts after filing of the O.A be taken into account while arriving at the exact amount of outstanding payable by the defendants.

(Contd...)

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(iii) The defendants are debarred from transferring; alienating, encumbering or disposing of the hypothecated/mortgaged properties or any other property and assets belonging to the defendants till the aforesaid adjudicated debt amount is recovered from the defendants.

(iv) The defendants are given a time of thirty days from the date of this judgment for repayment of the above decreed debt amount with interest failing which the applicant bank is entitled to recover its dues by sale of the hypothecated/mortgaged property as aforesaid and is also entitled to proceed against the said defendants personally and/or personal properties to recover the dues in accordance with law.

(v) Let the certificate of Recovery be drawn up by the Learned Registrar forthwith in terms of judgment for issuance of the same against the defendants in favour of applicant bank under Sub-Section 22 of Section-19 of The Recovery of Debts and Bankruptcy Act, 1993 and put up the same for signature and issuance.

(vi) Learned Recovery Officer is directed to realize the dues amount from the defendants as per the recovery certificate in accordance with law.

(vii) 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.

(viii) Record is consigned to the record room along with the judgment.

The judgment is signed and pronounced in the open Tribunal on 29^th day of December, 2023.

*Rakesh Pati Tiwari* **(RAKESH PATI TIWARI)** 29/12/2023 **Presiding Officer** **DRT, Siliguri.**

**Presiding Officer** **Debts Recovery Tribunal** **Siliguri**