Canara Bank vs Tapas Sarkar And Others on 1 June 2020

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

**(Delivered on 1^st June 2020)**

The applicant bank is a body corporate, constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, and running its business on and from Thakurpath Dhupguri Branch, Dhupguri Via Jalpaiguri, Police Station – Dhupguri, District – Jalpaiguri, Pin – 735210.

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

The defendant No. 1 on 03.05.2010 applied to the applicant bank for a credit limit of Rs. 7,00,000/- for his business of Auto Parts Selling in the nature of OSL at Village - Madhya Para, P.O. & P.S.- Dhupguri, Jalpaiguri, 735210. In consideration of the request of the defendant No.1 the applicant bank sanctioned a credit limit of Rs. 7,00,000/- on 03.05.2010, vide Sanction Letter dated 3/5/2010 and opened an account being No. 722/2169.

In terms of the said Sanction Letter, the defendant No.1, executed the Composite Hypothecation Agreement dated 13.05.2010 for an amount of Rs.7,00,000/-.

Presiding Officer

Siliguri

(Contd...)

The defendant No. 1 executed the Letter of Undertaking on 14.05.2010 to declare the value of the stocks etc. The defendant also executed the money receipt by acknowledging the amount on 26.06.2013.

The defendant No. 2 stood as guarantor and executed the Guarantee Agreement on 15.05.2010.

It is the contention of the applicant bank that although the defendants availed the loan facility, they failed to operate the loan account as per the terms of sanction, as a result of which the loan account became irregular. The applicant bank on several occasions requested and reminded the defendants to regularize the account but the defendants could not feed the overdue amount in the loan account.

Thereafter the applicant bank recalled the loan account through its Advocate Prabir Kumar Sikdar on 20.02.2015. The applicant in the said letter specifically and categorically pointed out that if the liabilities and/or dues of the applicant are not liquidated within the time specified therein the applicant will initiate appropriate legal proceedings against the defendants. But there was no response from the defendants.

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. 10,10,097.02p (Rupees Ten Lakhs Ten Thousand Ninety Seven and Paise Two only) as on 01.07.2015.

The defendants neither appeared nor filed any written statement against the claim of the applicant bank despite the service of summons through newspaper publication. Hence, the matter is proceeding ex-parte against both the defendants vide order dated 3/9/2018.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Jyana Ranjan Rout, 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>Sanction Letter dated 3/5/2010</td> <td>A</td> </tr> <tr> <td>2.</td> <td>Composite Hypothecation Agreement dated 13/5/2010</td> <td>B</td> </tr> <tr> <td>3.</td> <td>Letter of Undertaking dated 14/5/2010</td> <td>B-1</td> </tr> <tr> <td>4.</td> <td>Money Receipt dated 20/6/2010</td> <td>B-2</td> </tr> <tr> <td>5.</td> <td>Guarantee Agreement dated 15/5/2010</td> <td>B-3</td> </tr> <tr> <td>6.</td> <td>Acknowledgement of Debts dated 13/6/2013</td> <td>D</td> </tr> </tbody> </table>

Presiding Officer

Siliguri

(Contd...)

<table border="1"> <tr> <td>7</td> <td>Letters dated 20/2/2015</td> <td>E</td> </tr> <tr> <td>8</td> <td>Statement of Account</td> <td>M</td> </tr> </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 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. 91/2017 arising out of O.A. No. 421/2015 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. 10,10,097.02 p (Rupees Ten Lakhs Ten Thousand Ninety Seven and Paise Two only) with further interest thereon @12.00% 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 properties hypothecated with the applicant bank 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.

Presiding Officer (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 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 1^st day of June, 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**