STATE BANK OF INDIA vs Sri Bibhash Saha And Another on 27 February 2020

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

**(Delivered on 27^th February 2020)**

The Applicant is a Corporation, constituted under the provisions of State Bank of India Act, 1955, having its Central Office at Madam Cama Road, Mumbai – 400021 and Branch Office at Siliguri Town popularly known as Pradhan Nagar Branch, Pradhan Nagar, Meghnath Saha Sarani, P.O. and P.S. Pradhan Nagar, District – Darjeeling, Pin-734003. The applicant bank is represented by the Assistant General Manager, Stressed Assets Recovery Branch, State Bank of India, Mangal Deep Building, Hill Cart Road, P.O. and P.S. Siliguri, District – Darjeeling, Pin – 734001.

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 credit facility of Term Loan under House Building Loan Scheme for the purpose of purchase of land vide loan application dated 9/5/2005 and considering the said application, the applicant bank sanctioned a Term

Siliguri

(Contd...)

Loan upto the limit of Rs. 4,00,000/- in favour of the defendant No.1 vide Sanction letter dated 15/5/2005.

The defendant No.1 for the purpose of securing the repayment of the loan, executed Memorandum of Term Loan Agreement for Housing Loan Granted to Public, Consent to Mortgage, One Deed of Undertaking in respect of Housing loans for the public, Disclosure of Names of Defaulters Consent Clause and Form of Agreement with Power of Attorney, all dated 15/5/2005 in favour of the applicant bank.

The defendant No.2 stood as a guarantor and executed Guarantee Agreement dated 15/5/2005 in favour of the applicant bank.

In addition to the above, the defendant No.1 on 24/5/2005 deposited his original Title Deed with the applicant bank and created equitable mortgage of his landed property by depositing his original Title Deed being Deed No. 1687, registered on 18/5/2005 in the District sub-Registry Office at Jalpaiguri recorded in Book No. I, being Deed No. 1687, for the year 2005 with the applicant bank. The defendant No.1 on 5/6/2005 in writing confirmed the creation of mortgage of his original title deed with the applicant bank.

The said loan facility granted to the defendants was repayable in 180 equal monthly installments at the rate of Rs. 3,764/- per month till the entire loan with interest is fully repaid.

It is the contention of the applicant bank that after availment of the loan facility by the defendants, the Loan Account became most irregular and despite requests and reminders, the defendants failed and neglected to keep regularized the said accounts and defaulted to repay the dues of the said loan accounts as per terms and conditions thereof.

As the defendants failed to pay the dues, the applicant bank through its advocate issued the Demand Notices dated 15/5/2014 and 28/5/2014 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. 10,64,068.97p (Rupees ten lakhs sixty four thousand sixty eight and paise ninety seven) with interest calculated upto 13/05/2014.

The defendants neither appeared nor filed any written statement against the claim of the applicant bank despite the service of summons upon them through newspaper (Contd...)

Presiding

Siliguri publication. Hence, the defendants were ordered to be proceeded ex-parte vide order dated 26/4/2018.

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>Loan application dated 9/5/2005</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Letter of Arrangement dated 15/5/2005</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Memorandum of Term Loan Agreement for Housing Loan Granted to Public dated 15/5/2005</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Consent to Mortgage dated 15/5/2005</td> <td>4</td> </tr> <tr> <td>5.</td> <td>One Deed of Undertaking in respect of Housing loans for the public dated 15/5/2005</td> <td>5</td> </tr> <tr> <td>6.</td> <td>Disclosure of Names of Defaulters Consent Clause dated 15/5/2005</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Form of agreement with Power of Attorney, dated 15/5/2005</td> <td>7</td> </tr> <tr> <td>8.</td> <td>Guarantee Agreement dated 15/5/2005</td> <td>8</td> </tr> <tr> <td>9.</td> <td>Deed of Sale being No. 1687 for the year 2005</td> <td>9</td> </tr> <tr> <td>10.</td> <td>Letter of Confirmation for creation of equitable mortgage by deposit of title deed dated 5/6/2005</td> <td>10</td> </tr> <tr> <td>11.</td> <td>Demand Notices dated 15/5/2014 and 28/5/2014</td> <td>11 to 11/1</td> </tr> <tr> <td>12.</td> <td>Postal Receipts</td> <td>12 to 12/1</td> </tr> <tr> <td>13.</td> <td>Statement of account</td> <td>13</td> </tr> <tr> <td>14.</td> <td>Translation copy of Deed of Sale being Deed No. 1687 for the year 2005</td> <td>14</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. 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

Debts Recovery Tribunal (Contd...) Siliguri 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.A. No. 81/2017 arising out of O.A. No. 670/2014 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.10,64,068.97p (Rupees ten lakhs sixty four thousand sixty eight and paise ninety seven) 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 mortgaged property being all that piece or parcel of land measuring 3(three) Kathas or 0.0495 acre situated at Mouza Dabgram, J.L.No.2, Touzi No.3, Pargana Baikunthapur, appertaining to Khatian No. 745/3 (Hal), being part of Plot No. 315, P.S. Bhaktinagar, District – Jalpaiguri, which is butted and bounded by North-25 ft wide Road, South-Land of Nitai Paul and Raman Das, East-Land of Sanjay Saha, West-Land of Plot No. 315, 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

Siliguri (Contd...)

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 27^th day of February, 2020.

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

**(D.S. MAHRA)** **Presiding Officer** **DRT, Siliguri.**

Siliguri