CANARA BANK vs Ajay Batabyal on 25 March 2021

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

**(Delivered on 25^th March 2021)**

The Applicant is a Body Corporate constituted Under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970 having their head Office at 112, J. C. Road, Bangalore, Karnataka and having their Branch Office amongst others at DPSC Market Complex, D.B.C. Road, Jalpaiguri, West Bengal - 735101.

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

The defendant is the Proprietor of a Proprietorship concern in the name and style of M/s SRPC Enterprises and carrying on the business of manufacturing and repairing of Transformers.

The defendant approached the applicant bank in the month of September, 2014 for credit facilities in the nature of Cash Credit Limit for an amount of Rs. 30,00,000/- and Term Loan for an amount of Rs. 65,00,000/- for the Proprietorship Firm.

The applicant relying upon the representation made by the defendant sanctioned the Credit Facilities in the Nature of Cash Credit Limit for an amount of Rs.20,00,000/- (Rupees twenty lakh) and Term Loan for an amount of Rs. 30,00,000/- (Rupees thirty lakh) only vide Sanction Letter dated 19.03.2015.

Siliguri

(Contd...)

In respect of the abovesaid facilities, the defendant executed Request for Overdraft Facilities, Cash Credit Agreement, Pronote, Deed of Hypothecation Re: Machinery and Letter of Undertaking re: Loans/ Advances, all dated 30.03.2015 in favour of applicant bank to secure the due repayment in due course of time.

In addition to the above, the defendant created equitable mortgage of the property being Bastu land measuring 07 sataks (decimals) out of total 40 sataks (decimals) be the same a little more or less lying and situated at Mouza – Patkata, Pargana – Baikanthapur, R.S. Dag No. 357, Khatian No. 50/6, J.L. No.-3, P.S. Kotwali, District – Jalpaiguri and butted and bounded by North-40' wide road, South – Land of Ujal Das & Ismail Md, West – Land of Sri. Gopendra Nath Paul & Smt. Jogmaya Paul, East – Land of Sunil Sutradhar, in favour of the applicant bank by depositing the Original Title Deed being No. 3341 for the year 2013 registered at ADSR-Jalpaiguri in Book No.I, CD Volume No.8, Pages – 5585 to 5602.

The applicant bank submitted that the defendant committed breach of terms and conditions of the Agreement and made defaults in payment, even after several requests from the applicant Bank. The applicant repeatedly demanded the payments of the balance due in the said accounts, but the defendant failed and neglected to pay the said balance amount or any part thereof in the accounts. The applicant submits that the applicant finding no alternative issued a re-call demand notice dated 15.03.2016 through their Advocate calling upon the defendant to repay the dues amounting to Rs. 55,65,732.75 as on 29/02/2016.

The applicant bank has already proceeded against the defendant as per the provisions of SARFAESI Act, 2002 and issued notice dated 15/12/2015 under section 13(2) of the SARFAESI Act, 2002.

According to the applicant bank, after giving credit for all sum of moneys paid by and on behalf of the defendant in the said loan account there becomes due from the defendant to the Applicant Bank altogether a sum of Rs.58,65,526.75p (Rupees fifty eight lakh sixty five thousand five hundred twenty six and paise seventy five) [Rs. 25,78,430.00 (Cash Credit account) + Rs. 32,87,096.75 (Term Loan Account)] only as on 01/05/2016.

Siliguri

(Contd...)

Despite completion of service, the defendant neither appeared nor filed any written statement against the claim of the applicant bank. Hence, the defendant was ordered to be proceeded ex-parte on 12/2/2020.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Afroz Alam Ansari, the 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>Application dated 6/9/2014</td> <td>A</td> </tr> <tr> <td>2.</td> <td>Sanction Letter dated 19/3/2015</td> <td>B</td> </tr> <tr> <td>3.</td> <td>Request for Overdraft Facilities dated 30/3/2015</td> <td>C1</td> </tr> <tr> <td>4.</td> <td>Cash Credit Agreement dated 30/3/2015</td> <td>C2</td> </tr> <tr> <td>5.</td> <td>Pronote dated 30/3/2015</td> <td>C3</td> </tr> <tr> <td>6.</td> <td>Deed of Hypothecation Re: Machinery dated 30/3/2015</td> <td>C4</td> </tr> <tr> <td>7.</td> <td>Letter of Undertaking re: Loans/Advances dated 30/3/2015</td> <td>C5</td> </tr> <tr> <td>8.</td> <td>Letter Evidencing Deposit of Title Deeds dated 30/3/2015</td> <td>D</td> </tr> <tr> <td>9.</td> <td>Deed of Sale being No. 03341 for the year 2013 registered at ADSR-Jalpaiguri</td> <td>E</td> </tr> <tr> <td>10.</td> <td>Re-call demand notice dated 15/3/2016</td> <td>F</td> </tr> <tr> <td>11.</td> <td>Statement of Claim</td> <td>G</td> </tr> <tr> <td>12.</td> <td>Statement of Accounts</td> <td>H</td> </tr> <tr> <td>13.</td> <td>Notice under Section 13(2) of the SARFAESI Act, 2002 dated 15/12/2015</td> <td>I</td> </tr> </tbody> </table>

I have heard the learned counsel for the 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. defendant 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 defendant. In the present matter the defendant has 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 defendant and on default in repayment of

Siliguri

(Contd...)

the loan by the defendant, 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. 443/2017 arising out of O.A. No. 467/2016 filed by the applicant bank is allowed against the sole defendant and it is hereby ordered that the applicant bank is entitled to recover from the sole defendant the total debt amount for Rs.58,65,526.75p (Rupees fifty eight lakh sixty five thousand five hundred twenty six and paise seventy five) with further interest @11.00% p.a. with quarterly rests from the date of filing of the application till realization of entire balance.

Amount, if any, paid by the defendant in the loan accounts 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 defendant.

The mortgaged properties being Bastu land measuring 07 sataks (decimals) out of total 40 sataks (decimals) be the same a little more or less lying and situated at Mouza – Patkata, Pargana – Baikanthapur, R.S. Dag No. 357, Khatian No. 50/6, J.L. No.-3, P.S. Kotwali, District – Jalpaiguri and butted and bounded by North-40' wide road, South – Land of Ujal Das & Ismail Md, West – Land of Sri. Gopendra Nath Paul & Smt. Jogmaya Paul, East – Land of Sunil Sutradhar, [Title Deed being No. 3341 for the year 2013], as described in the Schedule 'A' of the application, and hypothecated properties (i) being the borrower's present and future stocks lying at Village Haldibari More, P.O. Mohit Nagar, P.S. Kotwali, Dist. Jalpaiguri, West Bengal – 735 102 together with all store components and spares which now belong to or may hereafter from time to time during the continuance of this security belong to the borrower and which are or shall or may be brought into stored or be in or upon or about the borrower's godown, or wherever else the same may be situated, stored or lying or being, including any such raw material articles or goods, stores, spares and components or other similar moveable property in course of transit or delivery to the borrower, as mentioned in Part A of Schedule "B" annexed to the application, (ii) all the proprietorship concern's present and future book debts, including monies, receivables, claims due and owing or which may at any time become due and (Contd...)

Siliguri owing to the borrower in course of its business by any person, firm, company or body corporate or by the Government of India or any State Government or Indian Railways or any Government Department or office or any Municipal or local or Semi-Government body or authority or any undertaking or project in the Public Sector, as mentioned in Part B of the Schedule 'B' annexed to the application, shall remain charged to the applicant bank and the applicant bank shall have paramount charge thereon.

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

The defendant is 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 said defendant 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 defendant personally and/or personal properties to recover the dues in accordance with law.

Let the certificate of Recovery be drawn up by Learned Registrar forthwith in terms of judgment for issuance of the same against the sole defendant 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 25^th day of March, 2021.

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

**(D.S. MAHRA)

DRT, Siliguri.**

**Presiding Officer Debts Recovery Tribunal Siliguri**