Punjab National Bank Erstwhile UNITED BANK OF INDIA vs Poly Rice Enterprise And Ors. on 23 March 2020

J U D G M E N T

(Delivered on 23^rd March 2020)

The Applicant is a body Corporate constituted under the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its Head Office at 16, Hemanta Basu Sarani, Kolkata - 700 001 carrying on Banking business through its different branches including one at Kaliachak, District-Malda, West Bengal, PIN - 732201, commonly known as United Bank of India, Kaliachak Branch.

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

The defendant No.1 is a proprietorship firm of the defendant No.2, having its office at Village Uttar Raipur ( Dhulauri), P.S. Kaliachak, P.O. Baluachara, District Malda dealing in Rice and related business. The Defendant No. 3 is the guarantor of the loan.

Siliguri (Contd...)

At the request of the defendant No. 1, the proprietorship firm of the defendant No.2, against application dated 27.12.2012 the applicant Bank on 24.01.2013 sanctioned a sum of Rs. 37,00,000.00 as cash credit facility in favour of the defendants.

In acknowledgement of granting of the said credit facility to the defendant No.1 and for the purpose of securing repayment of the debit balance lying outstanding from time to time in the aforesaid loan account, the defendant No.1 the proprietorship firm of the defendant No.2, on 24.01.2013 executed One Demand Promissory note for Rs 37,00,000.00, Letter of Continuity, Letter of Lien, Hypothecation Agreement for goods, book debts, plant and machineries and Letter of Hypothecation of Goods in favour of the Applicant Bank.

The defendant No. 3 in her personal capacity stood as guarantor and executed Letter of Guarantee dated 24/1/2013 in favour of the Applicant Bank.

In addition to the above, the defendant No.3 on 21.01.2013 created an Equitable Mortgage of her immovable property being registered with the office of A.D.S.R. Kaliachak and recorded thereon in Book No. I, being No. 153, Pages 71 to 73, deed No. 7957 for the year 2000 as more fully and particularly mentioned in the Schedule "X" of the application and deposited the original Title Deed in respect of the immovable property as aforesaid.

It is the contention of the applicant bank that the defendants enjoyed and utilized the said credit facility but they did not adhere to the terms and conditions of the credit facility and in spite of repeated requests the defendants did not clear the dues within the time as specified in the terms and conditions of the concerned facility and thus the account of the defendants became irregular. The defendants however acknowledged and admitted their liability by executing banking and security documents from time to time.

As the defendants failed to pay the Bank's dues, the Applicant Bank on 19.01.2015 issued the Notice under section 13(2) of the SARFAESI Act, 2002 upon the defendants.

Thereafter, the applicant bank on 01.05.2015 through their Advocate issued the Demand Notice upon the defendants.

According to the applicant bank after giving due credit for all sums paid by or received on behalf of the defendant No. 1 and after appropriating all items of credit to the

Siliguri (Contd...)

item of debit as are appropriate and applicable in the said open, mutual current account, there became due and is still due and owing by the Defendants to the Applicant Bank a total sum of Rs. 39,79,597.49p (Rupees Thirty Nine Lakhs Seventy Nine thousand Five Hundred Ninety Seven and Paisa Forty Nine) only including interest as calculated upto 31.03.2015.

Though the defendants appeared before the Tribunal through their counsel but did not file the written statement against the claim of the applicant bank despite sufficient opportunities. Hence, the defendants were ordered to be proceeded ex-parte on 16/11/2018.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Suvobrata Pathak, 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 Letter dated 27.12.2012</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Sanction Letter dated 24/1/2013</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Demand Promissory Note for Rs 37,00,000.00 dated 24/1/2013</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Letter of Continuity dated 24/1/2013</td> <td>4</td> </tr> <tr> <td>5.</td> <td>Letter of Lien dated 24/1/2013</td> <td>5</td> </tr> <tr> <td>6.</td> <td>Hypothecation Agreement for goods, book debts, plant and machineries dated 24/1/2013</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Letter of Hypothecation of Goods dated 24/1/2013</td> <td>7</td> </tr> <tr> <td>8.</td> <td>Letter of Guarantee dated 24/1/2013</td> <td>8</td> </tr> <tr> <td>9.</td> <td>Title Deed Being No. 7957 for the year 2000</td> <td>9</td> </tr> <tr> <td>10.</td> <td>Specimen of acknowledgment letter relating to deposit of title deeds</td> <td>10</td> </tr> <tr> <td>11.</td> <td>Notice under section 13(2) of the SARFAESI Act, 2002 dated 19.01.2015</td> <td>11</td> </tr> <tr> <td>12.</td> <td>Demand Notice dated 01.05.2015</td> <td>12</td> </tr> <tr> <td>13.</td> <td>Statement of account</td> <td>13</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

Siliguri

(Contd...)

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 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. 382/2017 arising out of O.A. No.257/2015 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. 39,79,597.49p (Rupees Thirty Nine Lakhs Seventy Nine thousand Five Hundred Ninety Seven and Paisa Forty Nine) only with further interest @12.00% 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 Immovable property registered with the office of A.D.S.R. Kaliachak and recorded thereon in Book No. I, being No. 153, Pages 71 to 73, deed No. 7957 for the year 2000, 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.

Debts Recovery Tribunal (Contd...) Siliguri

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 23^rd day of March, 2020.

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

(D.S. MAHRA)

DRT, Siliguri.

Siliguri