STATE BANK OF INDIA vs Sri Arun Kumar Majhi And Others on 18 March 2020

J U D G M E N T

(Delivered on 18^th March 2020)

The Applicant is a body corporation, constituted under the provisions of State Bank of India Act, 1955 having it's Central office at Mumbai and having one of it's Branch Office at Retail Assets Central Processing Centre, Sky Star Building, Sevoke Road, Panitanki More, Siliguri, Post Office and Police Station Siliguri, District Darjeeling, West Bengal.

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

The defendants applied to the applicant bank for a Housing Loan for construction of a new house vide loan application dated 23/2/2007 and in consideration of the said

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application, the applicant bank sanctioned the Term Loan of Rs. 8,98,000/- in favour of the defendants vide Sanction Letter dated 12/3/2007.

In acknowledgment of grant of the said facility, the defendants duly executed Memorandum of Term Loan Agreement for Home Loan Granted to Public, Affidavit, Agreement to Mortgage, Deed of Undertaking, Annexure-I, Affidavit and Undertaking cum Declaration cum Indemnity, all dated 15/3/2007 in favour of the applicant.

To secure the credit facility granted to the defendants, the defendant No. 3 created equitable mortgage of her immovable property as mentioned in the Schedule 'Y' of the application. The defendant No.3 executed one Confirmatory Letter for creation of equitable mortgage of her immovable property by deposit of Title Deed in favour of the applicant and deposited the original Deed of Conveyance Being No. 2742 executed on 3/3/2003 and registered on 31/3/2006 at District Sub-Registry Office, Jalpaiguri in respect of the said immovable property in favour of the applicant.

It is the contention of the applicant bank that the defendants availed of the aforesaid credit facilities but neglected to repay the same, as a result of which, the account turned highly irregular. Consequently, the account was classified as NPA on 19/4/2002. However, before the account was classified as NPA on 19/4/2002, the applicant bank issued notices dated 6/11/2010, 6/09/2011 and 28/10/2011 to the defendants requesting them to pay the irregular amount in the loan account, but the defendants did not pay any heed to pay the irregular amount.

Thereafter, the applicant sent one Demand Notice on 26/2/2013 along with copy of statement of account from 18/7/2007 to 4/2/2013 and requested to pay the outstanding dues but the defendants did not pay any amount. The applicant bank issued notice u/s 13(2) of the SARFAESI Act, 2002 on 13/12/2012 upon the defendants and thereby demanded to pay a sum of Rs. 8,31,095.00. Inspite of the said Demand Notices, the defendants failed and neglected to repay the dues of the said loan.

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. 10,51,635.00 with interest calculated upto 30/09/2015.

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The defendants appeared through one counsel but did not file any written statement against the claim of the applicant bank despite several opportunities. Hence, the right of the defendants to file the written statement was closed.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Krishna Dev Tunga, the Manager (NPA), 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 23/2/2007</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Sanction Letter dated 12/3/2007</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Memorandum of Term Loan Agreement for Home Loan Granted to Public</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Affidavit</td> <td>4</td> </tr> <tr> <td>5.</td> <td>Agreement to Mortgage</td> <td>5</td> </tr> <tr> <td>6.</td> <td>Deed of Undertaking</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Annexure -I</td> <td>7</td> </tr> <tr> <td>8.</td> <td>Affidavit</td> <td>8</td> </tr> <tr> <td>9.</td> <td>Undertaking cum Declaration cum Indemnity</td> <td>9</td> </tr> <tr> <td>10.</td> <td>Confirmatory Letter for creation of equitable mortgage</td> <td>10</td> </tr> <tr> <td>11.</td> <td>Deed of Conveyance Being No. 2742 executed on 3/3/2003 and registered on 31/3/2006</td> <td>11</td> </tr> <tr> <td>12.</td> <td>Notices dated 6/11/2010. 6/09/2011 and 28/10/2011</td> <td>12</td> </tr> <tr> <td>13.</td> <td>Demand Notice dated 26/2/2013</td> <td>13</td> </tr> <tr> <td>14.</td> <td>Notice u/s 13(2) of the SARFAESI Act, 2002 dated 13/12/2012</td> <td>14</td> </tr> <tr> <td>15.</td> <td>Statement of account</td> <td>15</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 disbursement/availment of loan to/by the defendants and on default in repayment of the

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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. 53/2017 arising out of O.A. No. 477/2015 filed by the Applicant Bank is allowed against the defendants No. 1, 2 & 3 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. 10,51,635.00 (Rupees ten lakhs fifty one thousand six hundred and thirty five) 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.

The mortgaged properties being all that piece or parcel of land measuring 0.0825 Acres or 5 Kathas, recorded in Khatian No. 307/8, Sheet No. 19, Part of Plot No. 174, West Bengal, situated within Mouza Dabgram, J.L. No.3, Pargana Baikunthapur, Police Station Bhaktinagar, District – Jalpaiguri, which is butted and bounded by North-10 Feet wide road, South – sold land of Praneswari Roy, East- Land of Kamala Bati Devi, West – Land of Kamala Bati Devi, [Deed of Conveyance/Sale executed on 3/3/2003 and registered on 31/3/2006, Being No. 2742 for the year 2006], as given in the Schedule-Y to 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 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

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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 18^th day of March, 2020.

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

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

**Presiding Officer** **Debts Recovery Tribunal** **Siliguri**