Punjab National Bank Erstwhile United Bank Of India vs M/S Ankur Metal Manufacturing Pvt.Ltd And Ors. on 26 May 2020

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

**(Delivered on 26^th May 2020)**

The Applicant is a body corporate constituted under the banking companies (Acquisition and Transfer of Undertakings) Act, 1970 having its Head Office at 11, Hemanta Basu Sarani, Kolkata-700001 in the State of West Bengal and Branch Office amongst other place at 1 & 2, Dr. S.N Bhattacharjee Road, P.S. Berhampore, Dist; Murshidabad, Pin No- 742101, commonly known as 'Berhampore Branch'.

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

The defendant No.1 is the company under the companies Act, 1956, having its office at Village - Chayannagar, P.O. Rainda, P.S-Nabagram, District -Murshidabad, Pin No.742136, namely M/s. Ankur Metal Manufacturing Pvt. Ltd. and the defendant No.2 and defendant No 3 are the Directors of the said company.

The defendant No.1 as company on 18.08.2013 approached the Applicant bank for credit facility for expansion of their business and the applicant bank considering the request

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of the defendant No.1 sanctioned an overall limit of Rs.169.44 lakhs under Term Loan and Cash Credit facility vide its Sanction letter dated 03.12.2013 on the terms and conditions to repay the amount with interest @13.25%(subject to change as per RBI directive) on monthly rest, on securities inter-alia hypothecation charge of entire current assets present and future including stock & book debts, plant & machinery, equitable mortgage of land & building, personal guarantee of all the defendants, pledge/line of L.I.C policy etc. The defendant No 1 through its directors/authorized representatives accepted the terms of Sanction Letter dated 3.12. 2013 and as a token of acceptance they signed the Sanction Letter.

In terms of the said Sanction Letter the defendant company through its authorized signatory Directors executed Demand promissory Note, Hypothecation of Goods, Book debts, plant and Machineries, Agreement of Term Loan and Letter of Guarantee in favour of the applicant bank on 04.12.2013.

The defendants in terms of the sanction of loan to defendant No.1 guaranteed due repayment of the loan amount with interest thereon by executing a Letter of Guarantee by the defendants No. 2 & 3 dated 4.12.2013.

The defendants No. 2 and 3 created equitable mortgage of their properties in favour of the applicant bank and on 04/12/2013 they deposited three title deeds bearing No. 2320 of 2011, 9479 of 2008 and 9042 of 2000 with an intent to create security on the properties under the said deeds for the loan availed from the applicant bank. The particulars of the properties mortgaged by the defendant No.2 by deposit of said title deed described in the schedule annexed to the application.

After executing all documents as stated above the defendant No.1 availed the overall credit limit of Rs. 1,69,44,000.00 from the applicant bank through their loan account CC-0229253201840 of Rs. 50,00,000/- and TL-0229300168984 of Rs.1,19,44,000/- with an undertaking to repay the loan amount together with agreed rate of interest on monthly installment basis. The defendant No.1 availed the entire credit facility but defaulted in making repayment of the loan amount with interest. Their repayment was very irregular and as a result of which the account became NPA on 30.09.2015.

Under the facts and circumstances as mentioned herein above, several demands and requests were made by and on behalf of the Applicant bank upon the defendants to regularize the account but all such demands and requests of the applicant bank fell into deaf ears.

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In spite of several reminders by way of letter, notice as aforesaid, the defendants did not pay the dues of the Applicant bank. Finally the applicant bank issued Demand Notice u/s 13(2) through bank's within 60 days receipt of the notice, but there was no response from the defendants. Thereafter, the applicant bank on 04.12.2015 sent a possession notice u/s 13(4) of the SARFAESI Act, 2002, but the defendants failed to make any repayment.

According to the applicant bank after appropriating all items of credit to the item of debit in order of time there is now due and owing by the defendants to the applicant bank through their loan account CC-0229253201840 of and TL-0229300168984 of an overall a sum of Rs.1,57,18,813.00/- [Rs. 40,41,376.00 (CC) + Rs.1,16,77,437.00 (TL)] including of interest calculated up to 31.12.2015.

On 13/2/2018 the defendants appeared before the Tribunal through their counsel, but thereafter 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 6/12/2018.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Akhileshwar Narayan Singh, 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 18.08.2013</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Sanctioned Letter dated 03.12.2013</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Demand Promissory Note dated 4.12.2013</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Hypothecation of Goods, Book debts, Plant &amp; Machineries dated 4.12.2013</td> <td>4</td> </tr> <tr> <td>5.</td> <td>Agreement of Term Loan dated 04.12.2013</td> <td>5</td> </tr> <tr> <td>6.</td> <td>Letter of Guarantee dated 04.12.2013</td> <td>6</td> </tr> <tr> <td>7.</td> <td>Specimen of acknowledge letter relating to deposit of Title deeds by a borrower, specimen entry in the Title Deed register relating to mortgage by deposit of Title Deeds by a borrower Specimen of acknowledge letter relating to deposit of Title Deeds by Guarantor and Entry from when Title Deeds are deposited by guarantor in respect of guarantor in respect of guarantee obligation and photocopy of the said documents and Sale Deed Being Nos.2320 for the year 2011 09479 for the year 2008 and 9042 for the year 2000 registered at Additional District sub Registry office, Domkol.</td> <td>7 to 13 respectively</td> </tr> <tr> <td>8.</td> <td>Certificate of Registration Charge dated 23.12.2013 issued by the Register of Companies, West Bengal.</td> <td>14</td> </tr> </tbody> </table>

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<table border="1"> <tr> <td>9.</td> <td>Board of Resolution of Company dated 05.06.2012</td> <td>15</td> </tr> <tr> <td>10.</td> <td>Notice Section 13(2) of the SARFEASI Act, 2002 dated 01.10.2015</td> <td>16</td> </tr> <tr> <td>11.</td> <td>Possession notice under section 13(4) of the SARFEASI Act, 2002 dated 04.12.2015</td> <td>17</td> </tr> <tr> <td>12.</td> <td>Statement of Account</td> <td>18</td> </tr> </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 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. 508/2017 arising out of O.A. No.3/2016 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.1,57,18,813.00 (Rupees one Core Fifty Seven lakhs Eighteen Thousand Eight Hundred Thirteen) 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 hypothecated properties being all that hypothecated goods, Apparatus, Book Debts, Plant and Machinery and other Moveable Assets of the Company situated at the office/godown of the defendants at Village – Chayannagar, P.O.-Rainda, P.S.-Nabagram,

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District-Murshidabad, Pin No.-742136 and any other place [as mentioned in the Schedule-A of the application], and mortgaged property being (1) all that piece and parcel of land measuring 32.75 decimal with building lying at Dag No. 211, 214, Khatian No. 355, under Mouza – Chayannagar, P.S. Nabagram, District –Murshidabad, Pin No. – 742136, under Sale Deed No. 2320 of 2011, Book No.-1, Volume No. 7, Pages No. 2111 to 2119 and (2) piece and parcel of land measuring 3 decimal lying at Dag No. 7189, 5570, Khatian No. 6902, under Mouza – Rasalpur, P.S. Domkal, District – Murshidabad, Pin No. 742303, under Sale Deed No. 09479 of 2008, Book No.-1, Volume No. 25, pages No.-4811 to 4822 and (3) piece and parcel of land measuring 210.50 decimal lying at Dag No. 3181, 3181/5571, Khatian No.- 1896, under Mouza-25 No. Arup Rasalpur, P.S. Domkal, District – Murshidabad, Pin No. 742303, under Sale Deed No. 9042 of 2000 [as mentioned in the Schedule-B 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.

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 26^th day of May, 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**