STATE BANK OF INDIA vs Sri Bimal Barman And Another on 21 January 2020

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

**(Delivered on 21^st January 2020)**

The Applicant is a body corporate, constituted under the provisions of State Bank of India Act, 1955, having its Central Office at Madam Cama Road, Mumbai – 400021 and carrying on business through its different branches including one at Sagardighi Square, District - Cooch Behar, West Bengal, Pin – 736101 commonly known as State Bank of India, Cooch Behar Branch.

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

At the request of the defendant No.1, vide loan application dated 25/3/2011, the applicant bank on 29.03.2011 sanctioned one Agricultural Cash Credit Loan facility to the limit of Rs. 10.00 lakhs against pledge/hypothecation of Cold Storage Receipts issued by the Cold Storage to the defendant No. 1 vide Sanction Letter dated 29/3/2011.

The defendants for the purpose of securing the repayment of the loan, executed One D.P. Note and D.P. Note Delivery Letter, both dated 29/3/2011.

Siliguri

(Contd...)

The defendant No.2 stood as a guarantor and executed Letter of Guarantee and also Letter of Indemnity both dated 29/3/2011.

The applicant bank stated that the aforesaid credit facility was granted, inter-alia, on hypothecation of the stock potato, seasonal crops stored or to be stored in the Cold Storage/Ware House by the borrower.

The said loan facility granted to the defendants was repayable on demand with interest. It is the contention of the applicant bank that after availment of the loan facilities by the defendants, the Loan Account became most irregular and despite requests and reminders, the defendants failed and neglected to keep regularized the said accounts and defaulted to repay the dues of the said loan accounts as per terms and conditions thereof and the account was classified as NPA.

As the defendants failed to pay the dues, the applicant bank through their advocate issued the Demand Notice dated 20/1/2013 to the defendants.

According to the applicant bank, after giving credit for all sum of moneys paid by and on behalf of the defendants in the said loan account there becomes due from the defendants to the Applicant Bank altogether a sum of Rs. 12, 26,154.00 (Rupees Twelve Lakhs Twenty six Thousand One Hundred Fifty Four) with interest calculated upto 09/01/2013.

The defendants neither appeared nor filed any written statement against the claim of the applicant bank despite the service of summons upon the defendants through newspaper publication. Hence, the defendants were ordered to be proceeded ex-parte vide order dated 10/6/2019.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Ravi Kant Bhartee, the Manager (Maintenance) of the applicant bank and also relied upon the following documents:- <table border="1"> <thead> <tr> <th>SI. No.</th> <th>Name of the documents</th> <th>Exhibit No.</th> </tr> </thead> <tbody> <tr> <td>1.</td> <td>Loan application dated 25/3/2011</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Sanction Letter dated 29/3/2011</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Demand Promissory Note dated 29/3/2011</td> <td>3</td> </tr> </tbody> </table>

Siliguri

(Contd...)

<table border="1"> <tr> <td>4.</td> <td>Demand Promissory Note Delivery Letter dated 29/3/2011</td> <td>4</td> </tr> <tr> <td>5.</td> <td>Letter of Guarantee dated 29/3/2011</td> <td>5</td> </tr> <tr> <td>6.</td> <td>Letter of Indemnity dated 29/3/2011</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Consent Clause by the guarantor</td> <td>7 &amp; 7/1</td> </tr> <tr> <td>8.</td> <td>Demand Notice dated 20/1/2013</td> <td>8</td> </tr> <tr> <td>9.</td> <td>Statement of account</td> <td>9</td> </tr> </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. 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. 311/2017 arising out of O.A. No. 119/2013 filed by the Applicant Bank is allowed against the defendants No. 1 & 2 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. 12, 26,154.00 (Rupees Twelve Lakhs Twenty six Thousand One Hundred Fifty Four) only with further interest thereon @8.5%.p.a. with quarterly rests from the date of filing of the application till realization of entire balance.

Amount, if any, paid by the defendants 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 defendants.

(Contd....)

Siliguri

The properties hypothecated with the applicant bank shall remain charged to the Applicant Bank and the Applicant Bank shall have paramount charge thereon.

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.

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 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 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 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 21^st day of January, 2020.

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**