State Bank Of India vs Sri Dilip Chandra Barman on 22 January 2020

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

**(Delivered on 22^nd January 2020)**

The Applicant is a Corporation, constituted under the State Bank of India Act, 1955 (Act. XXIII of 1955) having its Central Office at Mumbai and Branch office at North Bengal Medical College, Popularly known as North Bengal Medical College Branch, P.O. Sushrutanagar, P.S. Matigara, District Darjeeling, Pin Code – 734-012 and migrated to State Bank of India, Stressed Assets Recovery Branch, (Hill Cart Road Branch) 1^st Floor, Hill Cart Road, P.O. and P.S. Siliguri, District Darjeeling, Pin Code- 734-001.

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

On 12/11/2011 the Applicant Bank State Bank of India, RASMECCC, Sevoke Road, Sky Star Building, P.O. and P.S. Siliguri, District Darjeeling sanctioned a Term Loan facility upto the limit of Rs. 16,00,000/- in favour of defendant for the purpose of purchase of land vide Sanction Letter dated 12/11/2011. The defendant was required to (Contd...)

**Presiding Officer

Siliguri**

repay the said loan amount with accrued interest in 180 (one hundred and eighty) equal monthly installments at the rate of Rs. 17,687/- per month.

In order to avail the said Term Loan facility the defendant as borrower executed Memorandum of Term Loan Agreement for Home Loan Granted to Public dated 14/11/2011, Deed of Undertaking dated 14/11/2011, Agreement to mortgage dated 14/11/2011 and an Affidavit dated 14/11/2011 in favour of Applicant Bank.

In addition to the above, the defendant on 15/12/2011 deposited the original Title Deed of his landed property in respect of land measuring 0.07 (Zero point zero seven) acre situated at Mouza Bairatisal, J.L. No. 70, Touzi No. 91, Pargana Patharghata, appertaining to Khatian No. 17/8 (RS) and 130/1 (L.R.), being part of Plot No. 350 (R.S.) 527 (LR), P.S. Matigara, District Darjeeling which was registered in the Additional District Sub-Registry Office, at Bagdogra on 18/11/2011, recorded in Book No. 1, CD Volume No. 23, Pages from 4374 to 4386, being Deed No. 9205, for the year 2011. The defendant on 15/12/2011 in writing confirmed the creation of equitable mortgage in favour of the Applicant Bank by executing one Letter of confirmation in favour of the Applicant Bank on 15/12/2011.

In consideration of the Applicant Bank having sanctioned the said Term Loan limit under house building Loan scheme of Rs. 16,00,000/- only to the defendant and opened a term loan account in the name of the defendant.

It is the contention of the applicant bank that after availment of the loan facility, the defendant failed and neglected to repay the outstanding amount even after repeated demands. But on 07/05/2015 the defendant has lastly deposited a sum of Rs. 17,687/- in cash in his aforesaid loan Account.

Thereafter, the Applicant Bank on 03/03/2016 through its lawyer demanded from the defendant the payment of the Applicant Bank's dues in the aforesaid loan Account and issued demand notice under registered post with A/D but inspite of the said notice the defendant did not comply with the same. The defendant after receiving the said notice has replied the same on 11/03/2016 and requested the Bank to take physical possession of the mortgaged property under the Provisions of SARFAESI Act, 2002 and recover the outstanding dues of the Bank.

Siliguri

(Contd...)

According to the applicant bank, the defendant is liable to pay the Applicant Bank a sum of Rs. 15,59,077.07p (Rupees fifteen lakhs fifty nine thousand and seventy seven and paisa seven) only with interest calculated upto 30/04/2016.

The defendant neither appeared nor filed any written statement against the claim of the applicant bank despite the service of summons upon the defendant through speed post, dasti and newspaper publication. Hence, the defendant was ordered to be proceeded ex-parte vide order dated 6/12/2018.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Dinesh Ratna Prodhan, the Chief Manager, State Bank of India, Stressed Assets Recovery Branch, Siliguri, 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 for loan dated 13/10/2011</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Sanction Letter dated 12/11/2011</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Memorandum of Term Loan agreement For Home Loan granted to Public dated 14/11/2011</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Deed of undertaking dated 14/11/2014</td> <td>4</td> </tr> <tr> <td>5.</td> <td>Agreement to Mortgage dated 14/11/2011</td> <td>5</td> </tr> <tr> <td>6.</td> <td>Affidavit dated 14/11/2011</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Deed of sale being No. 9205 for the year 2011</td> <td>7</td> </tr> <tr> <td>8.</td> <td>Letter of confirmation for creation of Mortgage by deposit of title deed dated 15/12/2011</td> <td>8</td> </tr> <tr> <td>9.</td> <td>Demand Notice dated 03/03/2016</td> <td>9</td> </tr> <tr> <td>10.</td> <td>Postal receipts &amp; postal cards</td> <td>10 to 10/2 &amp; 11 to 11/1</td> </tr> <tr> <td>11.</td> <td>Demand Notice dated 11/03/2016</td> <td>12</td> </tr> <tr> <td>12.</td> <td>Statement of Account</td> <td>13</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.

Siliguri

(Contd...)

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 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. 515/2017 arising out of O.A. No. 346/2016 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 above said defendant the total debt amount for Rs. 15,59,077.07p (Rupees fifteen lakhs fifty nine thousand and seventy seven and paisa seven) only with further interest thereon @9.80%.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 properties hypothecated with the applicant bank and the mortgaged property being all that piece or parcel of land measuring 0.07 (Zero point zero seven) acre situated at Mouza Bairatisal, J.L. No. 70, Touzi No. 91, Pargana Patharghata, appertaining to Khatian No. 17/8 (RS) 130/1 (L.R.), being part of Plot No. 350 (R.S.) 527 (LR), P.S. Matigara, District Darjeeling, which is butted and bounded by North- Land of Ajay Majumder, South- Land of Nimai Sen, East- Land of Sanjay Das, West- 16 ft wide Road, [Deed of Sale being No. 9205, for the year of 2011 registered on 18/11/2011] 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

Siliguri

(Contd...)

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 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 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 22^nd day of January, 2020.

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

(D.S. MAHRA)

DRT, Siliguri.

Siliguri