STATE BANK OF INDIA vs ASRAF JAHAN CHOWDHURY AND OTHER on 16 March 2020

J U D G M E N T

(Delivered on 16^th March 2020)

The Applicant is a body corporate, constituted under the provisions of State bank of India Act, 1955 having its Central Office at State bank of India Bhawan, Madam Cama Road, Mumbai – 400021 and carrying on business through its different branches including one at State Bank of India, Kaliachak Branch, P.O. Kaliachak, District – Malda, West Bengal commonly known as State Bank of India, Kaliachak Branch.

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 grant of a cash credit facility for the purpose of his business – trading of paddy, vide application dated 7/11/2008 and in consideration of the said application, the applicant bank sanctioned a Cash Credit Limit of Rs.10,00,000.00 in favour of the defendants vide Letter of Arrangement dated 17/11/2008.

In compliance with the terms and conditions of the sanction, the defendant No.1 on 12/11/2008 executed an Agreement of Loan cum Hypothecation in favour of the applicant bank.

On 17/11/2008 the Defendant No.2 stood as a guarantor in his personal capacity and executed a Guarantee Agreement dated 17/11/2008.

In addition to the above, the defendant No.1 created an equitable mortgage in respect of his immovable property being Mouza Mathabari, J.L. No. 127, Khatian No. 2665, Plot No. 1196,

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1197/1427, Land Area 2½ deci + 5½ total .08 decimal as more particularly mentioned in the Schedule X of the application. The defendants No. 2 & 3 executed one Letter of confirmation for creation of mortgage in favour of the applicant on 20/6/2007.

It is the contention of the applicant bank that after availment of loan facility, the defendants failed and neglected to repay the loan in accordance with the terms and conditions on which it was granted. The loan account became irregular and in spite of repeated demands and requests the defendants did not regularize the account. However, the defendants admitted and acknowledged the liability time to time and lastly on 11/11/2011 by executing Revival Letter in favour of the applicant bank.

Thereafter, the applicant bank through its Advocate issued Demand Notice dated 1/7/2014 to the defendants.

According to the applicant bank, after giving due credit to the loan account of defendants for all sums paid and/or received on behalf of the said defendants, there is now due and owing by the defendants to the Applicant Bank, jointly and severally a sum of Rs.12,11,261.00 (Rupees Twelve lakhs eleven thousand two hundred and sixty one) only inclusive of interest calculated up to 31.05.2014.

Despite the service of summons upon the defendants through speed post, the defendants neither appeared nor filed any written statement against the claim of the applicant bank. Hence, the defendants were ordered to be proceeded ex-parte on 11/9/2018.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Arup Ray, the Officer 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>Application Letter dated 7/11/2008</td> <td>A</td> </tr> <tr> <td>2.</td> <td>Letter of Arrangement dated 12/11/2008</td> <td>A-1</td> </tr> <tr> <td>3.</td> <td>Agreement of Loan cum Hypothecation dated 12/11/2008</td> <td>B</td> </tr> <tr> <td>4.</td> <td>Guarantee Agreement dated 17/11/2008</td> <td>C</td> </tr> <tr> <td>5.</td> <td>Letter of confirmation for creation of mortgage and the Deed of Conveyance</td> <td>D &amp; D-1</td> </tr> <tr> <td>6.</td> <td>Revival letter dated 11/11/2011</td> <td>E</td> </tr> <tr> <td>7.</td> <td>Demand Notice dated 1/7/2014</td> <td>F</td> </tr> <tr> <td>8.</td> <td>Statement of account</td> <td>G</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

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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.

In the above circumstances, it is ordered:

ORDER

T.O.A. No. 893/2017 arising out of O.A. No. 1187/2014 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. 12,11,261.00 (Rupees Twelve lakhs eleven thousand two hundred and sixty 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 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 Land Area 2½ deci + 5½ total .08 decimal, Mouza Mathabari, J.L. No. 127, Khatian No. 2665, Plot No. 1196, 1197/1427, as mentioned in the Schedule-X of the application, 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 defendants to pay the dues within the time as aforesaid, the Applicant Bank is entitled to

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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 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 16^th day of March, 2020.

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

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

Siliguri