STATE BANK OF INDIA vs SUNIL KUMAR SINGH AND ANR on 19 March 2020

**J U D G M E N T**

**(Delivered on 19^th March 2020)**

The Applicant is a body Corporate constituted under the provisions of State Bank of India Act, 1955 having its Local Head Office at "Sambriddhi Bhawan" No.1, Strand Road, Kolkata – 700001 and carrying on business of banking, inter alia, at Berhampore, known as A.D.B. Berhampore Branch, at 1 A, Choudhury Churamon Road, P.O. & P.S. Berhampore, District – Murshidabad.

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

The defendant No.1 is carrying on his wholesale Grocery business under the name "MA JAGDAMBA TRADING CO." at Chunakhali, Nimtala, P.O. Cossimbazar Raj, P.S. Berhampore Town, District – Murshidabad. The defendant No.2, wife of the defendant No.1 is the guarantor.

Siliguri

(Contd...)

The defendant No.1 applied to the applicant bank for granting credit facility for the purpose of carrying on his business vide his application dated 25/9/2006 and the applicant bank vide its Letter of Arrangement dated 27/9/2006 granted a credit facility to the tune of Rs. 40.00 lakhs in favour of the business of the defendant No.1.

To avail of the aforesaid Credit Facility to the limit of Rs. 40,00,000/- the defendants executed the banking/security documents being the Agreement of Loan-cum-Hypothecation and Guarantee Agreement in favour of the applicant bank on 27/9/2006.

For the purpose of creating equitable mortgage by way of collateral security for the amount due to the applicant bank, the defendants by Registered Letter dated 29/09/2006 confirmed the deposit of their Title Deed relating to the landed property, in Mouza Chunakhali, within P.S. and District – Murshidabad, which was registered in Additional District Sub-Registry, Lalbagh, Murshidabad on 4/1/2006, vide Deed of Conveyance No. 29.

According to the applicant bank, after giving credit for all sums of money paid by and/or realized on behalf of the defendants there became due from and owing by the defendants to the applicant Bank an aggregate sum of Rs. 54,90,017.87p inclusive of interest calculated upto 29.2.2010.

Despite the service of summons upon the defendants through newspaper publication, 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 23/7/2019.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Shere Kumar, the Field 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>Letter of Arrangement dated 27/9/2006</td> <td>A</td> </tr> <tr> <td>2.</td> <td>Agreement of Loan-cum-Hypothecation dated 27/9/2006</td> <td>B</td> </tr> <tr> <td>3.</td> <td>Guarantee Agreement dated 27/9/2006</td> <td>C</td> </tr> <tr> <td>4.</td> <td>Letter of confirmation for deposit of title deed dated 29/9/2006</td> <td>D</td> </tr> <tr> <td>5.</td> <td>Demand Notice dated 12/2/2010</td> <td>E</td> </tr> </tbody> </table>

Siliguri

(Contd...)

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 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. 697/2017 arising out of O.A. No. 650/2010 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. 54,90,017.87p (Rupees fifty four lakhs ninety thousand seventeen and paise eighty seven) 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 hypothecated properties being stock-in-trade of the wholesale Grocery business under the name "MA JAGDAMBA TRADING CO.", all present and future goods, Book Debts, all other movable assets including the goods-in-transit, outstanding moneys, receivables, securities, investments, belonging to or in possession of defendant No.1 lying at Chunakhali, Nimtala, Post Office Cossimbazar Raj, District – Murshidabad, Pin Code –

Siliguri

(Contd...)

742102, and the mortgaged property being all that piece and parcel of "Bastu" land measuring .033 Acre on Sabek Dag No. 170/390 (Hal 503), under Sabek Khatian No. 563 (Hal 171, 633) and also land measuring .049 Acre on Sabek Dag No. 170/385 (Hal 497), under Sabek Khatian No. 789 (Hal 633, 564), i.e. total land measuring .082 Acre in Mouza Chunakhali, J.L. No. 24, within P.S. and District Murshidabad, which is butted and bounded by West – Berhampore Jalangi Road, East- Building of Giasuddin Sk., North- Building of Paritosh Nandi, South – Nimtala Seba Miloni Club, [Deed of Conveyance registered on 4/1/2006 Being No.29], as mentioned in the Schedule annexed 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 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 in charge 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 19^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