IDBI BANK vs Smt Kanchan Mandal And Another on 24 February 2020

J U D G M E N T

(Delivered on 24^th February 2020)

The Applicant is a company registered under the Companies Act, 1956 (1 of 1956) a Banking Company within the meaning of Section 5(C) of the Banking Regulation Act, 1949 (10 of 1949) and having its Registered office at IDBI Tower, World Trade Complex, Cuffe Parade, Mumbai – 400005 and a Branch Office at Siliguri.

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

The defendant No.1 applied to the applicant bank for financial assistance for the purpose of her business of wholesale of home appliances and the applicant bank vide its Letter of Intent (LOI) dated 29/7/2009 sanctioned a Cash Credit Limit of Rs. 30.00 lakhs to the defendant No.1.

In order to secure the said cash credit limit of Rs 30.00 Lakhs the Defendant No 1 executed Loan-cum-Hypothecation Agreement dated 16/6/2009, Demand Promissory Note (Contd...)

Siliguri dated 18/6/2009, Declaration dated 16/6/2009 and Undertaking of Negative Lien dated 16/6/2009 in favour of the applicant bank. In addition to the above, the defendants No. 1 & 2 executed Undertaking to be furnished by the Personal Guarantor dated 18/6/2009 and Unconditional and Irrevocable Guarantee Agreement dated 16/6/2009 in favour of the applicant bank.

On 16/6/2009 the defendant No.2 deposited with the applicant bank the title deed in respect of the immovable properties belonging to the defendant No.2 measuring an area of 0.66 decimal situated in Plot No. 53, 54, 55/670, 62/860, 79, Khatian No. 529, Mouza Binnaguri, J.L. No. 3, Sheet No.3, Block Rajganj in the District of Darjeeling more particularly described in the Schedule-I with an intent to create mortgage by deposit of title deeds.

In addition to the above, the defendant No.1 as security lien her fixed deposit to the tune of Rs.4,00,000/- in favour of the applicant. Due to non-payment of the applicant's dues, the applicant exercised its line and encashed the proceeds of the fixed deposit receipt and duly credited the proceeds to the account of the defendant No.1.

The defendant No.1 acknowledged her liabilities in respect of the cash credit amount by signing two separate Balance Confirmation dated 3/1/2012 for Rs. 29,75,158.00 with interest as on 3/1/2012 and another dated 27/4/2012 for Rs. 29,85,153/- with interest as on 31/4/2012.

It is the contention of the applicant bank that after availment of the loan facility, the defendants in spite of several requests and reminders failed to comply with the terms and conditions on which the said loan was sanctioned. Therefore, the Applicant Bank issued a letter dated 15.10.2013 to the defendants recalling the loan. However, the defendants failed and neglected to repay the dues to the applicant bank.

According to the applicant bank after giving credit of all sums of money paid by /or at the instance of the Defendants there became due from the Defendants a sum of Rs.44,84,000.00 (Rupees forty four lakhs and eighty four thousand) only inclusive of interest calculated upto 27.08.2014.

One learned counsel on behalf of the defendants appeared on 24/1/2018 and filed vokalatnama and undertook to file the written statement but thereafter neither the defendants nor any counsel representing the defendants appeared before the Tribunal and also not filed any

Siliguri

(Contd...)

written statement against the claim of the applicant bank. Hence, the defendants were ordered to be proceeded ex-parte on 29/01/2019.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Deep Kumar Prasad, the Branch Head 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 15/6/2009</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Loan-cum-Hypothecation Agreement dated 16/6/2009</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Declaration not to change the Constitution of the Proprietorship Firm dated 16/6/2009</td> <td>2/1</td> </tr> <tr> <td>4.</td> <td>Guarantee Agreement dated 16/6/2009</td> <td>3</td> </tr> <tr> <td>5.</td> <td>Undertaking as Personal Guarantors dated 16/6/2009</td> <td>4</td> </tr> <tr> <td>6.</td> <td>Title Deed of Gift being No. I-783 dated 15/2/2006</td> <td>5</td> </tr> <tr> <td>7.</td> <td>Affidavit dated 22/5/2009</td> <td>5/1</td> </tr> <tr> <td>8.</td> <td>Affidavit/Declaration dated 16/6/2009</td> <td>5/2</td> </tr> <tr> <td>9.</td> <td>Declaration and Undertaking dated 16/6/2009</td> <td>5/3</td> </tr> <tr> <td>10.</td> <td>Demand Promissory Note dated 18/6/2009</td> <td>6</td> </tr> <tr> <td>11.</td> <td>Letter of Renewal of Working Capital Limit dated 29/7/2010</td> <td>7</td> </tr> <tr> <td>12.</td> <td>Balance Confirmation dated 3/1/2012 with interest as on 3/1/2012</td> <td>8</td> </tr> <tr> <td>13.</td> <td>Balance Confirmation dated 27/4/2012 with interest as on 31/4/2012</td> <td>8/1</td> </tr> <tr> <td>14.</td> <td>Notice dated 15/10/2013 and Post Receipts</td> <td>9</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.

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.

Siliguri

(Contd...)

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 in charge 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 24^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**