STATE BANK OF INDIA vs Sri Utpal Karmakar And Another on 28 February 2020

J U D G M E N T

(Delivered on 28^th February 2020)

The Applicant is a Corporation, constituted under the State Bank of India Act, 1955, having its Central Office at Madam Cama Road, Mumbai – 400021 and Branch Office at North Bengal University, Shivmandir, P.O. Kadamtala, P.S. Matigara, District Darjeeling popularly known as N.B.U. Campus Branch, P.O. Kadamtala, P.S. Matigara, District Darjeeling and represented by the Assistant General Manager, Stressed Assets Recovery Branch, State Bank of India, Siliguri, Mangal Deep Building, 4^th Floor, 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 defendants applied to the applicant bank for credit facility of Term Loan under House Building Loan Scheme for the purpose of purchasing a plot of land for construction of dwelling house under SBI-Realty Scheme, vide loan application dated 4/2/2006 and considering the said application, the applicant bank under SBI-Realty Scheme sanctioned a Term Loan upto the limit of Rs. 1,13,000/- in favour of the defendant No.1 vide Sanction Letter dated 12/2/2006. The defendants were required to make the repayment of the loan in 180 equated monthly installments.

Siliguri

(Contd...)

The defendants for the purpose of securing the repayment of the loan, executed a Term Loan Agreement for Housing Loan Granted to Public, Consent to Mortgage, Agreement with Power of Attorney, Letter of Undertaking and Consent Clause, all dated 20/02/2006 in favour of the applicant bank.

In addition to the above, the defendants on 28/4/2006 created equitable mortgage of their landed property by depositing the Title Deed of Sale in respect of their land measuring 3(three) Kathas situated at Mouza Jitu, J.L. No. 69, Touzi No.8, Pargana Patharghata, appertaining to Khatian No. 199/4, being part of Plot No.7(hal), P.S. Matigara, District Darjeeling in respect of Deed No. 4254 for the year 2006 which was registered on 27/4/2006 in the Additional District Sub-Registry Office, Bagdogra recorded in Book No.1, Being Deed No. 4254 for the year 2006. Both the defendants on 28/4/2006 in writing confirmed the creation of equitable mortgage by deposit of Title Deed and executed one Letter of Confirmation for creation of equitable mortgage by deposit of Title Deed.

Thereafter, at the request of the defendants, the applicant bank on 21/3/2007 sanctioned an additional Term Loan of a further sum of Rs. 11,48,000/- for construction of house building, vide Sanction Letter dated 21/3/2007. The said additional term loan facility granted to the defendants was repayable in 240 equal monthly installments at the rate of Rs. 11,655/- per month till the entire loan with interest is fully repaid.

In order to avail the said additional Term Loan facility both the defendants executed Term Loan Agreement for Housing Loan Granted to Public, Undertaking cum declaration cum Indemnity, Deed of Undertaking, Declaration of Equitable Mortgage in case of enhancement, Agreement with Power of Attorney, Disclosure of names of defaulter, Consent Clause, Declaration of the defendants and Confirmation Letter, all dated 23/3/2007.

In terms of the aforesaid sanction both the defendants on 23/3/2007 confirmed the creation of equitable mortgage by deposit of title deed covering enhanced additional limit which was previously deposited on 28/4/2006 of their landed property. Both the defendants on 23/3/2007 in writing confirmed the creation of enhanced additional limit of equitable mortgage by deposit of Title Deed and executed one Letter of Confirmation for creation of equitable mortgage by deposit of Title Deed.

It is the contention of the applicant bank that after availment of the loan facilities by the defendants, the Loan Account became most irregular and despite requests and reminders, the

Siliguri

(Contd...)

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 28/3/2014 to the defendants. But inspite of the said notice, the defendants did not comply with the same.

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. 11,61,236.89p [Rs. 2,05,404.77 in account No. 30037897152 + Rs.9,55,832.12 in account No. 30149375490].

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 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 4/2/2006</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Sanction Letter dated 12/2/2006</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Term Loan Agreement for Housing Loan Granted to Public dated 20/02/2006</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Consent to Mortgage dated 20/02/2006</td> <td>4</td> </tr> <tr> <td>5.</td> <td>Agreement with Power of Attorney dated 20/02/2006</td> <td>5</td> </tr> <tr> <td>6.</td> <td>Letter of Undertaking dated 20/02/2006</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Consent Clause dated 20/02/2006</td> <td>7</td> </tr> <tr> <td>8.</td> <td>Deed of Sale Being Deed No. 4254 for the year 2006</td> <td>8</td> </tr> <tr> <td>9.</td> <td>Letter of Confirmation for creation of equitable mortgage dated 28/4/2006</td> <td>9</td> </tr> <tr> <td>10.</td> <td>Sanction Letter dated 21/3/2007</td> <td>10</td> </tr> <tr> <td>11.</td> <td>Term Loan Agreement for Housing Loan Granted to Public dated 23/3/2007</td> <td>11</td> </tr> <tr> <td>12.</td> <td>Letter of Undertaking dated 23/3/2007</td> <td>12</td> </tr> <tr> <td>13.</td> <td>Deed of Undertaking dated 23/3/2007</td> <td>13</td> </tr> <tr> <td>14.</td> <td>Declaration of Equitable Mortgage in case of enhancement dated 23/3/2007</td> <td>14</td> </tr> <tr> <td>15.</td> <td>Power of Attorney dated 23/3/2007</td> <td>15</td> </tr> <tr> <td>16.</td> <td>Disclosure of names of defaulter dated 23/3/2007</td> <td>16</td> </tr> </tbody> </table>

Siliguri

(Contd...)

<table border="1"> <tr> <td>17.</td> <td>Consent Clause dated 23/3/2007</td> <td>17</td> </tr> <tr> <td>18.</td> <td>Declaration of the defendants dated 23/3/2007</td> <td>18</td> </tr> <tr> <td>19.</td> <td>Confirmation Letter (enhancement of extending mortgage) dated 23/3/2007</td> <td>19</td> </tr> <tr> <td>20.</td> <td>Letter of Confirmation for creation of Equitable Mortgage dated 23/3/2007</td> <td>20</td> </tr> <tr> <td>21.</td> <td>Demand Notices dated 28/3/2014</td> <td>21</td> </tr> <tr> <td>22.</td> <td>Postal Receipts</td> <td>22 to 22/1</td> </tr> <tr> <td>23.</td> <td>Closed envelopes with postal A.D. Cards</td> <td>23 to 23/1</td> </tr> <tr> <td>24.</td> <td>Statements of accounts</td> <td>24 to 24/1</td> </tr> </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 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. 85/2017 arising out of O.A. No. 653/2014 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.11,61,236.89p (Rupees Eleven lakhs sixty one thousand two hundred thirty six and paise eighty nine) only with further interest thereon @10.00% 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.

Siliguri

(Contd...)

The mortgaged property being all that piece or parcel of land measuring 3(three) Kathas situated at Mouza Jitu, J.L. No. 69, Touzi No.8, Pargana Patharghata, appertaining to Khatian No. 199/4, being part of Plot No. 7 (hal), P.S. Matigara, District Darjeeling, which is butted and bounded by North-23'-0" ft. wide Road, South-Land of Smt. Rashnara Sarkar, East-6'-0" ft. wide Road, West-12'-00" ft. wide Road, 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 28^th day of February, 2020.

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

(D.S. MAHRA)

DRT, Siliguri.

Siliguri