Indian Bank(erstwhile Allahabad Bank) vs Smt Bithika Ganguly(Roy) on 27 February 2020

JUDGMENT

(Delivered 27^th February 2020)

The applicant bank is a body corporation, constituted under the Banking Companies (Acquisition and transfer of undertakings) Act, 1970, having its Head Office at Netaji Subhas Road, Calcutta – 700001 and Branch Office amongst other places one at Jhaljhalia, Station Road, Malda, known as 'Jhaljhalia Branch' within Post Office Jhaljhalia, Police Station English Bazar, District – Malda, West Bengal.

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

In view of the application of the defendant as sole Proprietor of M/s Ganguly Aluminum Pack, the applicant bank sanctioned an overall limit of Rs. 23,75,000.00 out of which Rs.15,58,000.00 as Term Loan and Rs. 8,17,000.00 as Cash Credit facility vide Sanction Advice dated 27/9/2010.

On 18/11/2010, the defendant executed the Demand Promissory Note for Rs. 8,60,000/-, Demand Promissory Note for Rs. 16,40,000/- and General Letter of Hypothecation applicable in the case of individuals and proprietorship firms in favour of the applicant bank.

In order to secure the repayment of outstanding of the aforesaid Term Loan of Rs. 15,58,000/- and Cash Credit facility of Rs. 8,17,000/-, the defendant created equitable (Contd...)

Siliguri mortgage of her landed property as mentioned in the Schedule-Y of the application on 18/11/2020 and executed one Letter of Mortgagor Confirming Deposit of Title Deeds on 18/11/2010. The defendant deposited the original Deed of Sale Being No. 6991 for the year 2010 registered at District Sub-Registry Office, Malda along with other related documents in respect of the said landed property.

It is the contention of the applicant bank that after availing the aforesaid loan facilities, the defendant failed and neglected to regularize its accounts inspite of repeated requests by the applicant bank, as a result of which, the loan account was classified as Non Performing Assets on 4/4/2012. After the account was classified as NPA, the applicant bank issued letters on 17/5/2012 and on 15/6/2012 to the defendant requesting her to regularize the loan accounts but the defendant did not pay any heed to the said letters.

Thereafter the applicant bank issued notice dated 11/12/2012 u/s 13(2) of the SARFAESI Act, 2002 but inspite of the said notice the defendant failed and neglected to repay the dues of the loan accounts.

However, the defendant made some deposits in almost every year in the said loan account after sanction of the said loan and last cash deposit of a sum of Rs. 3,000/- was made on 4/3/2013 by the defendant in the said Term Loan Account.

After giving credits for all sums of moneys paid by and/or realized on behalf of the defendant, there is now due from and owing by the said defendant to the applicant altogether a sum of Rs. 24,46,231.00 [Rs. 12,45,103.00 (in the Cash Credit Account) + Rs. 12,01,128.00 (in the Term Loan Account)] with interest calculated upto 5/2/2016.

Though the defendant appeared before this Tribunal through her counsel on 25/4/2018 & 5/7/2018, thereafter the defendant neither appeared nor filed any written statement against the claim of the applicant bank. Hence, the defendant was ordered to be proceeded ex-parte on 11/7/2019.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Aman Kumar Jha, the Chief 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 Advice dated 27/9/2010</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Demand Promissory Note for Rs. 8,60,000/-</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Demand Promissory Note for Rs. 16,40,000/-</td> <td>3</td> </tr> </tbody> </table>

Siliguri

(Contd...)

<table border="1"> <tr> <td>4.</td> <td>General Letter of Hypothecation applicable in the case of individuals and proprietorship firms</td> <td>4</td> </tr> <tr> <td>5.</td> <td>Letter of Mortgagor Confirming Deposit of Title Deeds dated 18/11/2010</td> <td>5</td> </tr> <tr> <td>6.</td> <td>Deed of Sale Being No. 6991 for the year 2010</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Letters dated 17/5/2012 and 15/6/2012</td> <td>7 &amp; 8</td> </tr> <tr> <td>8.</td> <td>Notice dated 11/12/2012 u/s 13(2) of the SARFAESI Act, 2002</td> <td>9</td> </tr> <tr> <td>9.</td> <td>Statements of accounts</td> <td>10 &amp; 11</td> </tr> </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. 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 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 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.

In the above circumstances, it is ordered:

ORDER

T.O.A.No.428/2017 arising out of O.A. No. 121/2016 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. 24,46,231.00 (Rupees Twenty four lakhs forty six thousand two hundred and thirty one) 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 account 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.

Siliguri

(Contd...)

The hypothecated property being raw materials, all stocks-in-trade, tools, machineries, furniture & fixtures, book debts etc. lying at M/s Ganguly Aluminum Pack situated at Narayan Paul, Post Office Narayan Pur, Police Station –Malda, District Malda, West Bengal as mentioned in the Schedule-X of the original application and mortgaged property being all that piece or parcel of land measuring 0.03 Acres, recorded in L.R. Khatian No.4 (old) 1769 (new), Part of L.R. Plot Nos. 253 and 254, held under the State of West Bengal, situated within Mouza Jhanhra, J.L. No. 101, Police Station Malda, District Malda, which is butted and bounded by North-Land of Mozaffar Hossain, South – Land of Sri. Jaydeb Saha, East – Land of Sri. Jaydeb Saha, West-Land of Anowar Hossain, [Deed of Sale executed and registered on 2/7/2010, being No. 6991 for the year 2010], as mentioned in the Schedule-Y 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 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 as aforesaid and is also entitled to 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 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