Punjab National Bank Erstwhile UNITED BANK OF INDIA vs Smt Beauty Dutta 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 Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 and carrying on business at 16, Old Court House Street, Calcutta – 700001 and at Pradhan Nagar Branch, Pradhan Nagar, Siliguri, Post Office and Police Station Pradhan Nagar, District-Darjeeling, West Bengal.

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

Siliguri

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The defendants applied to the applicant bank for loan of a sum of Rs. 25,00,000/- vide their application dated 2/1/2010 and in consideration of the said application the applicant bank sanctioned a Term Loan of Rs.25.00 lakhs vide Sanction Letter dated 5/2/2010.

In compliance with the terms and conditions of the Sanction, the defendants executed on 6/2/2010 Agreement under United Housing Loan Scheme, Demand Promissory Note for Rs. 25.00 lakhs, Letter of Lien, Text of Consent Clause executed by Smt. Beauty Dutta, Text of Consent Clause executed by Sri. Sukumar Dutta, as security for the said loan.

In addition to the above, the defendant No. 3 in his personal capacity stood as guarantor and executed Letter of Guarantee dated 5/2/2010.

The defendants on 6/2/2010 created equitable mortgage of their landed property as mentioned in the Schedule-X of the application. The defendants executed one Memorandum Evidencing Deposit of Title Deeds on 6/2/2010 for creation of equitable mortgage of their landed property by deposit of Title Deed in favour of the applicant bank and deposited the original Deed of Conveyance Being No. 573 for the year 2010 registered at District Sub-Registry Office, Jalpaiguri in respect of the said property.

It is the contention of the applicant bank that the defendants availed of the loan facility but despite requests and reminders, the defendants did not keep regularized the said account and/or failed and neglected to repay the dues of the said loan account as per terms and conditions thereof. The applicant bank on 25/4/2013 sent to the defendants a Demand Notice through its advocate, for repayment of the dues, but the defendants failed to make any repayment.

According to the applicant bank, after giving credit for all amounts paid by the Defendants there becomes due from and owing by the Defendants to the Applicant Bank a sum of Rs. 35,14,133.00 inclusive of interest calculated upto 15/5/2013.

The defendant No.1 appeared before the Tribunal through his counsel but did not file the written statement against the claim of the applicant bank despite sufficient (Contd...)

Siliguri opportunities. The defendant No. 2 is reported to have expired. The defendant No.3 neither appeared nor filed any written statement despite the service of summons upon him through paper publication. Hence, the defendants were ordered to be proceeded ex-parte on 22/07/2019.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Pradip Kumar Shere, 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 2/1/2020</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Sanction Letter dated 5/2/2010</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Agreement under United Housing Loan Scheme</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Demand Promissory Note for Rs. 25.00 lakhs</td> <td>4</td> </tr> <tr> <td>5.</td> <td>Letter of Lien</td> <td>5</td> </tr> <tr> <td>6.</td> <td>Text of Consent Clause executed by Smt. Beauty Dutta</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Text of Consent Clause executed by Sri. Sukumar Dutta</td> <td>7</td> </tr> <tr> <td>8.</td> <td>Letter of Guarantee dated 5/2/2011</td> <td>8</td> </tr> <tr> <td>9.</td> <td>Deed of Conveyance Being No. 573 for the year 2010</td> <td>9</td> </tr> <tr> <td>10.</td> <td>Memorandum Evidencing Deposit of Title Deeds on 6/2/2010</td> <td>10</td> </tr> <tr> <td>11.</td> <td>Demand Notice dated 25/4/2013</td> <td>11</td> </tr> <tr> <td>12.</td> <td>Statement of account</td> <td>12</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 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

Siliguri

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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.O.A. No. 135/2017 arising out of O.A. No.618/2013 filed by the Applicant Bank is allowed against the defendants No. 1 & 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. 35,14,133.00 (Rupees thirty five lakhs fourteen thousand one hundred and thirty three) only with further interest @11.00% per annum 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 all that piece or parcel of land measuring 5 Kathas, recorded in Khatian No. 52/1, Sheet No. 15, Plot No. 347, held under the State of West Bengal, situated within Mouza Dabgram, J.L.No.2, Pargana Baikunthapur, under Police Station Bhaktinagar, District-Jalpaiguri, which is butted and bounded by North-8 feet wide kutcha Road, South-Land of Plot No. 347 & House of Das Babu, East-8 feet wide kutcha Road, West – 8 feet wide kutcha Road [Deed of conveyance registered on 16/2/2010, Being No. 573 for the year 2010], 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.

Siliguri

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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 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 18^th day of March, 2020.

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

(D.S. MAHRA)

DRT, Siliguri.

Siliguri