PUNJAB NATIONAL BANK vs P G Fish And Ors on 3 March 2021

J U D G M E N T

(Delivered on 3^rd March, 2021)

The applicant is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its Head Office at 7, Bhikhaiji Cama Place, Africa Avenue New Delhi – 110607 and is carrying on its banking business inter alia through one of its branch office situated at Sevoke Road, Police Station- Siliguri, Siliguri, District – Darjeeling commonly known as its Sevoke Road Branch.

The facts in brief, giving rise to the present application as pleaded are as under.

The defendant No.1 is a proprietorship firm and the defendant No.2 who is the sole proprietor of the defendant No.1 carries on the business of selling fish. The defendant No.3 guaranteed the repayment of the dues in the account of the defendant (Contd...)

Siliguri

No.1. The defendant No.2 mortgaged his immovable property with the applicant bank as security for the dues of the defendant No.1.

At the request of the defendant No.2 as sole proprietor of defendant No.1, vide application dated 14.08.2012 for sanction of Cash Credit facility upto the limit of Rs.30,00,000/-, the Applicant Bank though its Sevoke Road Branch sanctioned a Cash Credit (HYp.) limit for Rs.30,00,000/- (Rupees thirty lakh) only in favour of the defendant No.1 vide Sanction Letter dated 7.9.2012.

The defendant No.2 as the sole proprietor of the defendant No.1 on due acceptance of the offer and in compliance with the terms and conditions of the Sanction Letter dated 7.9.2012, executed Agreement of Hypothecation of Good and Book debts to secure Cash Credit facility. The Defendant No. 3 in his personal capacity stood as guarantor of the said loan/facility sanctioned to and in favour of the defendant No.1 and executed Agreement of Guarantee dated 7.9.2012.

In addition to the above, on 7.9.2012 the defendant No.2 created mortgage by deposit of title deed being Deed No. 00114 for the year 2012 in respect of his right and interest over the property being Bastu land measuring 8 decimals in Mouza Mandlaguri, JL No. 107 (85), Khatian No. 1, Pargana Pathaghata, Plot No. 321, P.S. Pradhannagar, Ward No. 46 of Siliguri Municipal Corporation, District – Darjeeling. The said mortgage is confirmed by the defendant No.2 through his letter dated 8/9/2012 and deposited the Deed No. 00114 for the year 2012 on 7/9/2012.

Thereafter, the defendant No.1 executed a Balance Security Confirmation Letter confirming the correctness of the balance of Rs. 30,75,945/- in the account as on 31/01/2014.

It is the contention of the applicant bank that the said Loan Account became most irregular and despite demand, requests and reminders, the defendants did not keep regularize the loan account and also failed and neglected to repay the dues of the said loan account as per terms and conditions thereof and the account was classified as N.P.A on 31/3/2014 as per the guidelines of Reserve Bank of India.

Thereafter, the applicant bank by letters dated 4/1/2014, 12/2/2014, 17/3/2014, 9/4/2014, 26/5/2014 and 12/6/2014 called upon the defendants to regularize the account.

(Contd...)

Siliguri

On 22/9/2014, the applicant bank caused a notice to be issued and sent out under the provisions of section 13(2) of the SARFAESI Act, 2002, demanding a sum of Rs. 30,41,147/-.

The defendant No.2, however, by letters dated 30/06/2014 and 10/10/2014, requested the applicant bank to grant him time to repay the dues in the account.

According to the applicant bank at the time of filing of the O.A. in the loan account there became due from the defendants to the Applicant Bank altogether a sum of Rs. 39,20,621.00 with interest calculated upto 30/11/2015. During the pendency of the O.A. the applicant bank sold the hypothecated immovable property as mentioned in Sl.No.9 of O.A. application by SARFAESI proceedings and recovered an amount of Rs. 12,05,000/- . Thus the claim amount was reduced to Rs. 27,15,621.00 after deducting the recovered amount of Rs. 12,05,000/- vide order dated 21/8/2019 passed by the undersigned.

The defendants neither appeared nor filed any written statement against the claim of the applicant bank despite sufficient opportunities granted to them. Hence, the defendants were ordered to be proceeded ex-parte on 10/02/2020.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Pritam Kumar Verma , the Sr. 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 (photocopy)</th> <th>Exhibit No</th> </tr> </thead> <tbody> <tr> <td>1.</td> <td>Application for loan</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Letter of Sanction dated 7/9/2012</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Agreement of Hypothecation of goods and book debts for Rs. 30.00 lakh</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Agreement of Guarantee dated 7/9/2012</td> <td>4</td> </tr> <tr> <td>5.</td> <td>Deed No. 00114 for the year 2012</td> <td>5</td> </tr> <tr> <td>6.</td> <td>Letter dated 8/9/2012 of applicant</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Letter dated 17/9/2012</td> <td>7</td> </tr> <tr> <td>8.</td> <td>Extract from title deed Register</td> <td>8</td> </tr> <tr> <td>9.</td> <td>Balance and Security Confirmation Letter dated 31/1/2014</td> <td>9</td> </tr> <tr> <td>10.</td> <td>Demand Letters</td> <td>10</td> </tr> <tr> <td>11.</td> <td>SARFAESI Notice dated 22/9/2014</td> <td>11</td> </tr> <tr> <td>12.</td> <td>Letters dated 30/6/2014 and 10/10/2014</td> <td>12</td> </tr> <tr> <td>13.</td> <td>Statement of Account</td> <td>13</td> </tr> </tbody> </table>

(Contd...)

*A.Kal*

Siliguri

I have heard the learned counsel for applicant bank and perused the documents and Evidence filed by applicant bank. By the said evidence on affidavit, the Applicant bank has proved its claim. It is settled law that an averment which is not denied by the opposite party i.e. defendants in the present matter, by way of filing written statement or by producing evidence must be taken by the Tribunal/ Court to have admitted by the defendants. In the present matter the defendants have neither filed the written statement nor produced any evidence in his support to challenge the claim of applicant bank.

The claim of the Applicant bank is within the limitation and within the jurisdiction of this Tribunal. The applicant has sufficient cause of action for filing the instant application due to disbursement/availment of loan to/by the defendants 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.

In the above circumstances, it is ordered:

ORDER

T.O.A. No. 1021/2017 filed by the Applicant Bank is allowed against the defendants No.1, 2 & 3 jointly and severally and it is hereby ordered that the Applicant Bank is entitled to recover from the above said defendants the total debt amount for Rs.39,20,621.00 (Rupees thirty nine crores twenty thousand six hundred and twenty one) only with further interest @12.00% p.a. with quarterly rests from the date of filing of the application till realization of entire balance.

The amount of Rs. 12,05,000/- (Twelve lakh and five thousand) only which is recovered by the applicant bank by selling the hypothecated properties in the SARFAESI proceeding after filing of this application shall be reduced from the certificated amount. The difference of interest so calculated on reducing balance on recovery of the abovementioned amount be also reduced from the amount under the certificate. The applicant bank is to file revised statement of account before the learned Recovery Officer accordingly.

The defendants are given a time of thirty days from the date of this judgment/final order for repayment of the above mentioned dues, so initiated to them. In case of failure of (Contd...)

Siliguri said defendants to pay the dues within the time as aforesaid, 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.

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 7 and 22 of Section-19 of The Recovery of Debts and Bankruptcy Act, 1993 and put up the same for signature for issuance.

This judgment is signed and pronounced in the open Tribunal on this day the 3^rd day of March, 2021.

Copy of the judgment/final order be given/sent to the parties.

**(D.S. MAHRA)** **Presiding Officer** **DRT, Siliguri.**

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