Indian Bank(erstwhile Allahabad Bank) vs Md. Rahul Sk. on 17 March 2020

J U D G M E N T

(Delivered 17^th March 2020)

The Applicant is a body corporate constituted under the Provision of Banking Companies (Acquisition & Transfer of Undertakings Act) 1970 having its Branch, among others, at Allahabad Bank, Sahapur Branch, P.O. Sahapur, P.S. Sagardighi, District-Murshidabad.

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

The defendant applied to the applicant bank for financial assistance for purchase of a tractor, make New Holland Tractors (I) P. Ltd., vide application dated 14.12.2011 and considering the said application, the applicant bank sanctioned a Term Loan of Rs.8,99,000.00 vide sanction letter dated 20.12.2011.

On acceptance of the terms and conditions as contained in the aforesaid Sanction Letter dated 20.12.2011 the defendant executed Demand Promissory Note and Hypothecation agreement, both dated 20.12.2011 in favour of the applicant bank.

In addition to the above, the defendant created mortgage by executing Mortgage Deed No-1 (Form No ACM-1) and deposited the original Title Deed being No. 9136 for the year 1998 in the name of Md. Rahul Sk, S/o Md. Ajjul Sk relating to property i.e. land

Siliguri

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measuring 233 satak, lying and situated at Mouza – Mahismara, Khatian No. 508, Dag No. 1307, P.S. & ADSRO Hariharpara, Dist. Murshidabad.

The Defendant No. 1 also executed Revival Letter on 23.12.2015 in favour of the Applicant Bank.

It is the contention of the applicant bank that the defendant availed of and enjoyed the aforesaid Term Loan facility and also built up assets but neglected to repay the same and/or to comply with the terms and conditions under which the said facility was sanctioned. Consequently, the loan account turned highly irregular and became a non-performing asset (NPA) on 29.04.2012.

Thereafter, the Applicant Bank through its Advocate issued a demand notice recalling the advance and demanded to the defendant by sending the demand notice dated 15.1.2016 by Registered Post for repayment of the borrower's debts due to the Applicant Bank.

After giving due credit to the defendant for all sums paid by or received on behalf of the said defendant there was due and owing by the defendant to the Applicant Bank in the said Term Loan account a sum of Rs.14,07,250.00 (Rupees Fourteen Lakhs Seven Thousand Two Hundred and Fifty) only with interest up to 23.02.2016.

Despite the service of summons upon the defendant through hand service, the defendant neither appeared nor filed the written statement. Hence, the defendant was ordered to be proceeded ex-parte on 15/1/2019.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Subrata Kumar Dey, 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>Application dated 14.12.2011</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Sanction letter dated 20.12.2011</td> <td>1a</td> </tr> <tr> <td>3.</td> <td>D.P. Note dated 20.12.2011.</td> <td>2</td> </tr> <tr> <td>4.</td> <td>Hypothecation agreement dated 20.12.2011.</td> <td>2a</td> </tr> <tr> <td>5.</td> <td>Mortgage Deed No. 1 in Form No. ACM.I and the title deeds.</td> <td>3</td> </tr> <tr> <td>6.</td> <td>Revival Letter dated 23/12/2015</td> <td>4</td> </tr> <tr> <td>7.</td> <td>Demand Notice and postal receipt</td> <td>5</td> </tr> <tr> <td>8.</td> <td>Statement of account</td> <td>6</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. 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.524/2017 arising out of O.A. No. 281/2016 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.14,07,250.00 (Rupees Fourteen Lakhs Seven Thousand Two Hundred and Fifty) only with further interest thereon @11.00% 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.

The hypothecated property being a tractor make New Holland Tractors (I) P. Ltd. Trailer and other relative equipments and accessories etc., as mentioned in the Schedule-A of the original application and the mortgaged property being land measuring 233 satak, lying and situated at Mouza – Mahismara, Khatian No. 508, Dag No. 1307, P.S. & ADSRO Hariharpara, Dist. Murshidabad, [Title Deed being No. 9136 for the year 1998 in the name of Md. Rahul Sk ], as mentioned in the Schedule-B of the original application, shall remain charged to the Applicant Bank and the Applicant Bank shall have paramount charge thereon.

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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 in charge 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 17^th day of March, 2020.

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

(D.S. MAHRA)

DRT, Siliguri.

Siliguri