STATE BANK OF INDIA vs Smt Sima Das And Anr. on 17 February 2020

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

**(Delivered on 17^th February 2020)**

The Applicant is a body corporation, 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 Dalkhola, known as "DALKHOLA BRANCH", P.S. Karandighi, District – Uttar Dinajpur, West Bengal.

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

The defendant No.1 applied to the applicant bank vide application dated 12/12/2010 for financial assistance and considering the said application, the applicant bank on 11/1/2011 sanctioned Working Capital Limit of Rs. 20.00 lakhs in favour of the defendant No.1 vide Sanction Letter dated 11/1/2011.

In acknowledgment of grant of the said facility, the defendant No.1 executed an Agreement of Loan-cum-Hypothecation dated 11/1/2011 in favour of the applicant bank.

The defendant No.2 in his personal capacity stood as guarantor and executed Guarantee Agreement dated 11/1/2011.

Siliguri

(Contd...)

Further, the defendants created equitable mortgage of their property being land measuring about more or less 23 Sataks out of 47 Sataks under Mouza Bajitpur, J.L. No. 218, L.R. Khatian No. 512, R.S. & L.R. Dag No. 146/982, P.S. & SRO Raigunj, District – Uttar Dinajpur, being No. 5794 for the year 2010. The property stands in the name of Smt. Sima Das, W/o Sri. Biswanath Das. The defendant No.1 deposited with the applicant bank the original Title Deed.

During availment of the said credit facility, the defendant No.1 executed a Revival Letter on 18/04/2013 in favour of the applicant bank.

It is the contention of the applicant bank that the defendants availed of the cash credit facility and also built up assets but neglected to repay the said facility and/or committed breach of terms and conditions on which the credit facility was granted. Consequently, the aforesaid account turned highly irregular and became a non-performing asset.

As the loan account became irregular the applicant bank through its Advocate issued Demand Notices on 11/1/2014 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. 20,12,186.05p with interest calculated upto 4/11/2013.

The defendants neither appeared nor filed any written statement against the claim of the applicant bank despite the service of summons upon them through speed post. Hence, the matter is proceeding ex-parte against the defendants.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Partha Lahiri, the Dy. 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>Sanction Letter dated 11/1/2011</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Agreement of Loan cum Hypothecation dated 11/1/2011</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Guarantee Agreement dated 11/1/2011</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Creation of extension of equitable mortgage by deposit of title deeds dated 10/1/2011.</td> <td>4</td> </tr> <tr> <td>5.</td> <td>Revival Letter dated 18/4/2013</td> <td>5</td> </tr> <tr> <td>6.</td> <td>Demand Notices dated 11/1/2014</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Statement of account</td> <td>7</td> </tr> </tbody> </table>

Siliguri

(Contd...)

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. 192/2017 arising out of O.A. No. 344/2014 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.20,12,186.05p (Rupees twenty lakhs twelve thousand one hundred eighty six and paise 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 property being present and future stock of goods, Rice, Jute and Maize, machineries, furniture and fixtures, office equipments, vehicles or any other goods of the defendant No.1 lying in the office or wherever else the same may be and all book debts and outstanding monies, as given in the Schedule-A of the application and mortgaged property being all that piece or parcel of land measuring about more or less 23 sataks out of 47 sataks under Mouza Bajitpur, J.L. No. 218, L.R. Khatian No. 512, R.S. & L.R. Dag No. 146/982, P.S. & SRO Raigunj, District – Uttar Dinajpur, being No. 5794 for the year 2010, as given in the Schedule-B of

Siliguri

(Contd...)

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 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 17^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**