PUNJAB NATIONAL BANK vs Khagendra Nath Sorkar @ Sarkar on 14 February 2020

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

**(Delivered on 14^th February 2020)**

The Applicant is a body corporate constituted under the Banking Companies Acquisition and Transfer of Undertakings) Act V of 1970 having its Head Office at 7, Bhikhaiji Cama Place, Africa Avenue, New Delhi- 110 607 and carrying on banking business, inter-alia, from its Branch Office 'Balurghat' at, Balurghat, Dist. Dakshin Dinajpur, Pin. 733101.

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

The Defendant No.1 on 22.8.2014 applied to the applicant bank for financial assistance in the form of Agricultural credit for his commercial dairy farming business vide Loan Application dated 22.8.2014 and the Applicant Bank on 10.9.2014 sanctioned to the said Defendant Term Loan amount of Rs. 16,50,000.00 and Cash Credit limit of Rs.2,25,000.00 aggregating to Rs. 18,75,000.00 vide Sanction Letter dated 10.9.2014.

For availing the loan amount, the said Defendant No.1 opened the Term Loan Account being No. 607100AG00000015 and Cash Credit Account No. 6071008600000017 with the Applicant Bank.

Siliguri

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In consideration of the said sanction, the Defendant No.1 executed Priority Sector Term Loan Agreement and Hypothecation Agreement dated 10.9.2014 along with Consent Clause for disclosure of information to the Credit Information Bureau, both dated 10.9.2014 in favour of the Applicant Bank.

To secure the said Term Loan Amount and Cash Credit limit of the Defendant No.1 aggregating to Rs. 18,75,000.00, the Defendant No.2 in his personal capacity stood as guarantor and on 10.9.2014 executed the Agreement of Guarantee along with the Consent Letter for disclosure of information in favour of the Applicant Bank.

In consideration of the sanction of the Term Loan limit of Rs.16,50,000.00, the said Defendant No.1 agreed to create equitable mortgage of the immovable property standing in his name and on 10.9.2014 and executed the Mortgage Deed document. Earlier the said Defendant No.1 to secure the loan limit of his 'commercial pig breeding' project, on 1.7.2014 already deposited the two original Title Deeds being Nos. I-00297/2014 dated 21.1.2014 and I-1398/2004 dated 17.5.2004, with an intent to create security thereon as and by way of mortgage by deposit of Title Deeds. The said Defendant No.1 to that effect executed the Annexure-II documents, both dated 31.7.2014 as security for due repayment of all money that would be due and payable by the said Defendant to the Applicant Bank. The detail of Title Deeds is also recorded on 26.11.2014 in the Title Deed Register maintained with the Applicant Bank.

However, the said Piggery farming project of the Defendant No.1 did not advance further for various reasons, for which the said defendant prayed to the Applicant Bank for changing the project into Dairy Project and submitted Money Receipts, Veterinary Surgeon's Certificates dated 31.12.2014, 1.1.2015, 24.2.2015, 3.3.2015, 19.3.2015, 17.4.2015, and Insurance policies of his purchased cattle dated 22.12.2014. Considering the heavy investment of the defendant No.1, the technical feasibility and economical viability of the Dairy project, the applicant bank approved and recommended the said Dairy Project of the Defendant No.1 through the 'Purchase of Milch Cattle And Other Live Stock' document dated 23.8.2014.

While carrying on the dairy business, the said Defendant No.1 on 17.8.2015 applied to the Applicant for agricultural credit for cultivation of Aman paddy, potato and jute under Kishan Credit Card/ PNB Krishi Card Scheme vide Loan Application dated 17.8.2015 and in

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consideration of the said application, the Applicant Bank on 20.8.2015 sanctioned the Defendant No.1 the KCC Loan amount of Rs. 1,14,000.00 and the Account being No. 6071008800011891 was opened in the name of the Defendant No.1.

In consideration of said sanction, the defendant No.1 executed the Hypothecation Agreement, Letter of Undertaking, Letter of Consent (Revised) and Demand Promissory Note, all dated 21.8.2015 in favour of the applicant Bank.

To secure the said loan amount under Kishan Credit Card/ PNB Kisan Card Scheme, the Incumbent in Charge of Balurghat Branch by writing a letter dated 27.8.2015 requested the Addl. District Sub Registrar, Balurghat, Dakshin Dinajpur to create Charge of land specified in Form-1. The Book Debts outstanding in the books of the Firm of the Defendant are hypothecated to the Applicant Bank.

It is submitted by the applicant bank that though the said Defendants availed of and enjoyed the entire Cash Credit limit and Term Loan and Kishan Credit Card/ PNB Kisan Card Loan amount through account opened and maintained in the Balurghat Branch of the Applicant Bank, the said Defendants failed and neglected to make payment or regularize the said Cash Credit loan Account, Term Loan and Kishan Credit Card/ PNB Kisan Card Loan Accounts. As a result thereof the said loan Accounts of the Defendant became irregular in course of time and have been classified as N.P.A on and from 14.7.2016 and the balance in the said three loan accounts have since become due and payable.

The Applicant Bank on several occasions i.e on 25.6.2016 lastly on 10.12.2016 wrote letters to the Defendants to regularize their Loan Accounts. Inspite of the said notices, the said defendants did not pay the demanded sum to the Applicant bank.

After giving credit to the said loan Accounts of the Defendant for all sums of moneys paid and/or received and after appropriating all items of debit to the items of credit in order of time, there is now due and owing by the said Defendants jointly and severally to the Applicant Bank in the said Term Loan Account (Rs. 14,49,169.00), Cash Credit Account (Rs.2,44,960.00) and loan amount under KCC/PNB Kisan Card scheme Account (Rs.91,126.00) a total sum of Rs.17,85,255.00 inclusive of interest calculated upto 15.12.2016.

On 29.05.2018 the defendant No. 1 appeared in person and sought for time to file the written statement, but thereafter he neither appeared nor filed the written statement. The

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defendant No.2, despite the service of summons by post as well as dasti, neither appeared nor filed any written statement against the claim of the applicant bank. Hence, the defendants were ordered to be proceeded ex-parte on 26/9/2019.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Anup Kumar Saha, 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</th> <th>Exhibit No.</th> </tr> </thead> <tbody> <tr> <td>1.</td> <td>Loan Application dated 22.8.2014</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Sanction Letter dated 10.9.2014</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Priority Sector Term Loan Agreement dated 10.9.2014</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Hypothecation Agreement with Consent Clause dated 10.9.2014</td> <td>4</td> </tr> <tr> <td>5.</td> <td>Agreement of Guarantee with Consent Clause dated 10.9.2014</td> <td>5</td> </tr> <tr> <td>6.</td> <td>'Mortgage Deed' document dated 10.9.2014, Title Deed No. I-00297/2014 dated 121.1.2014, Title Deed No. I-1398/2004 dated 17.5.2004, Annexure II documents both dated 31.7.2014, Title Deed Register dated 1.7.2014, 26.11.2014, Mortgage Deed dated 10.9.2014.</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Veterinary Surgeon's Certificate dated 1.1.15, 24.2.15, 3.3.15, 19.3.15, 17.4.15</td> <td>7</td> </tr> <tr> <td>8.</td> <td>'Purchase of Milch Cattle And Other Live Stock' document dated 23.8.2014</td> <td>8</td> </tr> <tr> <td>9.</td> <td>Loan Application dated 17.8.2015</td> <td>9</td> </tr> <tr> <td>10.</td> <td>Letter of Sanction dated 20.8.2015 and Annexure-II document dated 21.8.2015</td> <td>10</td> </tr> <tr> <td>11.</td> <td>Hypothecation Agreement dated 21.8.2015.</td> <td>11</td> </tr> <tr> <td>12.</td> <td>Letter of Undertaking dated 21.8.2015.</td> <td>12</td> </tr> <tr> <td>13.</td> <td>Letter of Consent (Revised) dated 21.8.2015.</td> <td>13</td> </tr> <tr> <td>14.</td> <td>Demand Promissory Note dated 21.8.2015.</td> <td>14</td> </tr> <tr> <td>15.</td> <td>Letter of Applicant along with the Form No.1 dated. 27.8.2015</td> <td>15</td> </tr> <tr> <td>16.</td> <td>Demand Notices dated 25.6.2016, 10.12.2016</td> <td>16</td> </tr> <tr> <td>17.</td> <td>Statements of Accounts</td> <td>17 series</td> </tr> </tbody> </table>

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 written statement nor produced any evidence in their support to challenge the claim of applicant bank.

Siliguri

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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, inspite of demands made, as per exhibited documents filed by the applicant bank.

In the above circumstances, it is ordered:

ORDER

T.O.A. No. 671/2017 arising out of O.A. No. 22/2017 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.17,85,255.00 (Rupees seventeen lakhs eighty five thousand two hundred and fifty five) only with further interest thereon @ 12.00% p.a. with quarterly rests from the date of filing of the application till realization of entire balance.

Amount, if any, paid by the 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.

The hypothecated properties of the business of the Defendant No.1 such as, different types of crops whatsoever raised or to be raised, Dairy goods and allied products, fertilizers, seeds, tools, farm machineries, furniture fixtures, electric fan, light, weight machine, milk measuring scale, tube well, pipe, cutting machine, motor, stocks, plant and machineries, cow feeds etc. and various milch cows, described in the Veterinary Surgeon's Certificate and Money Receipts, housed, lying and situates at the firm of Defendant No.1 at Hatiya Para, P.O- Bijaysree, P.S- Balurghat, Dist. Dakshin Dinajpur, Pin- 733103 or any where else including Book Debts outstanding the Books of the Defendant No.1's Firm, as mentioned in the Schedule-A of the application and the mortgaged properties being (i) all that piece and parcel of land of 136 Satak or 1.36 acre, lying and situates at Dist. Dakshin Dinajpur, P.S and ADSR Office- Balurghat, Mouza- Hatiyapara, J.L No. 148, R.S Khatian No. 97, R.S & L.R Dag No. 85, L.R Khatian No. 168, described in the Schedule of the Sale Deed No. I-00297/2014 dated 21.1.2014, stands in the name of Khagendra Nath Sarkar, the Defendant No.1 (ii) all that piece and parcel of land and building of 0.04 acre, lying and situates at Dist. Nadia, P.S

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and ADSR Office- Santipur, Mouza- Buincha, J.L No. 70, C.S Khatian No. 234, Dag No. 1106, R.S Khatian No. 888, L.R Dag No. 2230, L.R Khatian No. 66, 465/34, 481/1, 1451168, described in the Schedule of the Sale Deed No. I-1398/2004 dated 7.5.2004, stands in the name of Khagendra Nath Sarkar, the Defendant No.1, as given in the Schedule-B of the application, 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 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 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 14^th day of February, 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**