Punjab National Bank vs Abdul Malek on 17 February 2020

J U D G M E N T

(Delivered on 17^th February 2020)

The Applicant is a body corporate, constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970, having its Head Office at 11, Hemanta Basu Sarani, Kolkata-700001 and carrying on Business, inter alia, from one of its Branch Office amongst others situated at Kaliachak, P.O.& P.S-Kaliachak, District-Malda, commonly known as 'Kaliachak Branch'.

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

The defendant No.1 as proprietor of M/s. Oneja Silk Enterprise engaged in the manufacturing of silk thread from cocoons of different varieties made an application to the Applicant Bank on 21.12.2006 under CGTMSE Scheme for sanction of cash credit facility for its manufacturing unit situated at Village – Mozampur (Balugram), P.O. Haruchak, District-Malda and the applicant bank vide its Sanction Letter dated 31.01.2007 sanctioned to the defendant a cash credit limit of Rs.20.00 lakhs under CGTMSE Scheme.

In consideration of the sanction of the cash credit limit of Rs.20.00 lakhs, the defendant as proprietor of M/s. Oneja Silk Enterprise executed Demand Promissory Note, Letter of Continuity, Letter of Lien, Hypothecation of Goods, Hypothecation of Debts and

Siliguri

(Contd...)

Moveable Assets, Hypothecation of Moveable Plant and Machinery and Letter of Undertaking, all dated 31.01.2007 in favour of the Applicant Bank.

In consideration of the sanction of said cash credit limit of Rs.20.00 lakhs, the defendant created equitable mortgage over his immovable property being the land admeasuring about 5 kathas, J.L. No. 166, Khatian No. R.S.100, L.R. – 1269, Dag No. 514 under Mouza-Haruachak, P.S. Kaliachak, District-Malda, Pin – 732201 [Schedule-B property] by depositing the original Title Deed being No. 914 of 2003 relating to the aforesaid property with the Applicant bank.

According to the applicant bank the defendant while operating the said loan account had deposited certain amounts on different dates i.e. on 1/10/2008, 26/3/2009, 27/2/2010, 22/3/2010 and 9/4/2010 in the cash credit account.

The defendant executed Letter of Balance Confirmation whereby the defendant confirmed that a sum of Rs. 23,65,398.74p inclusive of interest calculated as on 30/11/2010 in respect of Cash Credit Account is due and payable by him to the applicant bank as on 30/11/2010.

The applicant bank stated that although the defendant availed the entire cash credit Limit of Rs. 20.00 lakhs, but the defendant failed to operate the said account as per terms and conditions of the sanction and thus the said Loan Account became irregular in course of time, as a result of which, the loan account was declared as NPA on 30/6/2011.

Thereafter, on 23/2/2016 the Applicant Bank through its Advocate issued legal notice upon the defendant calling upon the said defendant to pay a sum of Rs.40,45,005.90 (Rupees Forty Lakhs forty five thousand five and paisa ninety) inclusive of interest calculated up to 31.01.2016 with further interest from 01.02.2016 at contractual rate with monthly rests till realization within 7 days from the receipt of the said notice. In spite of the issuance of the said notice the said defendant failed and neglected to pay the dues of the bank.

After giving due credit to the cash credit account of Defendant for all sums paid and/or received on behalf of the said defendant and after appropriating all items of debit to the items of credit in order of time, there is now due and owing by the defendant to the Applicant Bank, a sum of Rs. 41,59,239.20p (Rupees forty one lakhs fifty nine thousand two hundred thirty nine and paise twenty ) only inclusive of interest calculated up to 10/04/2016.

Siliguri

(Contd...)

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 newspaper publication. Hence, the defendant was ordered to be proceeded ex-parte vide order dated 1/10/2019.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Satyendra Pratap Singh, the Deputy 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 31.01.2007</td> <td>A</td> </tr> <tr> <td>2.</td> <td>Demand Promissory Note</td> <td>B</td> </tr> <tr> <td>3.</td> <td>Letter of Continuity</td> <td>C</td> </tr> <tr> <td>4.</td> <td>Letter of Lien</td> <td>D</td> </tr> <tr> <td>5.</td> <td>Hypothecation of Goods</td> <td>E</td> </tr> <tr> <td>6.</td> <td>Hypothecation of Debts and Moveable Assets</td> <td>F</td> </tr> <tr> <td>7.</td> <td>Hypothecation of Moveable Plant and Machinery</td> <td>G</td> </tr> <tr> <td>8.</td> <td>Letter of Undertaking dated 31.01.2007</td> <td>H</td> </tr> <tr> <td>9.</td> <td>Letter executed by the defendant dated 31/01/2007</td> <td>I</td> </tr> <tr> <td>10.</td> <td>Title Deed being No. 914 of 2013</td> <td>J</td> </tr> <tr> <td>11.</td> <td>Balance Confirmation Letter dated 30/11/2010</td> <td>K</td> </tr> <tr> <td>12.</td> <td>Legal Notice dated 23/2/2016</td> <td>L</td> </tr> <tr> <td>13.</td> <td>Statement of account</td> <td>M</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 the loan by the defendant, in spite of demands made, as per exhibited documents filed by the applicant bank.

Siliguri

(Contd...)

In the above circumstances, it is ordered:

ORDER

T.O.A. No. 446/2017 arising out of O.A. No. 330/2016 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. 41,59,239.20p (Rupees forty one lakhs fifty nine thousand two hundred thirty nine and paise twenty ) 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 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 hypothecated properties being stock of silk cocoons, silk yarn, silk sarees and other silk items, raw materials, manufactured goods, finished products, semi-finished products, plant and machinery, accessories, spares, parts, stores and all other assets and rights wherever they might be situated are remaining hypothecated and/or as security for payment of the applicant's claims either in transit or lying at the factory situated at Village Mozampur (Balugram), P.O. Haruchak, District – Malda [as mentioned in Schedule- A of the application] and the mortgaged property being all that piece and parcel of land admeasuring about 5 kathas, J.L. No. 166, Khatian No. R.S.-100, L.R.-1269, Dag No. 514 under Mouza – Haruchak, P.S. Kaliachak, District-Malda, in respect of Title Deed being No. 914 of 2003, 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 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 and is also entitled to

Siliguri

(Contd...)

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 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**