CANARA BANK vs ASIS DAS on 11 June 2020

J U D G M E N T

(Delivered 11^th June 2020)

The Applicant Bank is a body corporate, constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having their Head Office at 112, J.C. Road, Bangalore, Karnataka and having their Branch Office amongst others at DPSC Market Complex, D.B.C. Road, Jalpaiguri – 735101 (Jalpaiguri Branch), P.S. Kotwali.

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

The defendant is the sole Proprietor of Proprietorship concern in the name and style of M/s Amar Udog and carrying on the business of trading of electrical goods and instruments.

At the request of the defendant vide Application dated 10/02/2014, the applicant bank on 26/2/2014 sanctioned a Cash Credit facility of Rs.10,00,000.00 (Rupees ten lakhs) only to the defendant vide Sanction Letter dated 26/2/2014.

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Pursuant to the above sanction, the defendant on 26/2/2014 executed Letter of Proprietorship, Request for Overdraft Facilities, Cash Credit Agreement and Pronote, all dated 26/2/2014 in favour of the applicant bank as security.

The defendant to secure the due repayment of the credit facility availed by the defendant created equitable mortgage in favour of the applicant bank by depositing the original Title Deed being No. 2695 for the year 2013 registered at ADSR-Jalpaiguri in Book No.I, CD Volume No.7, Pages – 2523 to 2544.

Again on the request made by the defendant, the applicant bank enhanced the cash credit facility from Rs. 10,00,000/- to Rs. 12,00,000/-.

In respect of the enhanced cash credit facility of Rs. 12,00,000/- the defendant executed Supplemental Agreement dated 25/7/2015 for an amount of Rs. 12,00,000/- and Pronote dated 25/7/2015 in favour of the applicant bank as security.

It is the contention of the applicant bank that the defendant availed the sanctioned credit facilities but the defendant failed and neglected to conduct the account in accordance with the terms and conditions on which the aforementioned facilities were granted to the defendant. The said account became irregular and in spite of repeated demands and requests the defendant did not regularize the account and did not take any effective measures/ steps to repay the over dues balance of the loan account and ultimately the Applicant Bank classified the said loan accounts as a Non-Performing Asset (N.P.A.) with effect from 2.11.2015 in accordance with the guidelines issued by Reserve Bank of India.

Thereafter, the applicant bank issued re-call Demand Notice dated 15/3/2016 through their Advocate calling upon the defendant to repay the dues amounting to Rs.12,94,793.10 as on 29/2/2016.

The applicant bank proceeded against the defendant as per the provisions of 'The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002' ( the SARFAESI Act, 2002) and issued notice dated 15/12/2015 under section 13(2) of the SARFAESI Act upon the defendant to settle his liability towards the applicant bank.

According to the applicant bank after giving due credit to the defendant for all sums paid by or received on behalf of the said defendant there was due and owing by the President Officer Debts P. Tribunal (Contd...)

defendant to the Applicant Bank in the loan account a sum of Rs.13,75,524.10p (Rupees Thirteen lakhs seventy five thousand five hundred twenty four and paise ten) only including the interest calculated up to 31.5.2016.

Despite the service of summons upon the defendant through speed post as well as affixing the summons/notice at the residential address of the sole defendant, the defendant neither appeared nor filed the written statement. Hence, the defendant was ordered to be proceeded ex-parte on 18/7/2018.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Somenath Pan, Senior 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 10/2/2014</td> <td>A</td> </tr> <tr> <td>2.</td> <td>Sanction Letter dated 26/2/2014</td> <td>B</td> </tr> <tr> <td>3.</td> <td>Letter of Proprietorship dated 26/2/2014</td> <td>C1</td> </tr> <tr> <td>4.</td> <td>Request for Overdraft Facilities dated 26/2/2014</td> <td>C2</td> </tr> <tr> <td>5.</td> <td>Cash Credit Agreement dated 26/2/2014</td> <td>C3</td> </tr> <tr> <td>6.</td> <td>Pronote dated 26/2/2014</td> <td>C4</td> </tr> <tr> <td>7.</td> <td>Particulars of assets of defendant dated 26/2/2014</td> <td>C5</td> </tr> <tr> <td>8.</td> <td>Letter Evidencing Deposit of Title Deeds dated 26/2/2014</td> <td>D</td> </tr> <tr> <td>9.</td> <td>Deed of Sale being No. 2695 for the year 2013</td> <td>E</td> </tr> <tr> <td>10.</td> <td>Supplemental Agreement dated 25/7/2015</td> <td>F1</td> </tr> <tr> <td>11.</td> <td>Pronote dated 25/7/2015</td> <td>F2</td> </tr> <tr> <td>12.</td> <td>Re-call Demand Notice dated 15/3/2016</td> <td>G</td> </tr> <tr> <td>13.</td> <td>Statement of claim</td> <td>H</td> </tr> <tr> <td>14.</td> <td>Statement of account</td> <td>I</td> </tr> <tr> <td>15.</td> <td>Notice under section 13(2) of the SARFAESI Act, 2002 dated 15/12/2015</td> <td>J</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. defendant 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

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defendant. In the present matter the defendant has 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 defendant and on default in repayment of the loan by the defendant, 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.473/2017 arising out of O.A. No. 466/2016 filed by the Applicant Bank is allowed against the sole defendant and it is hereby ordered that the Applicant Bank is entitled to recover from the above said defendant the total debt amount for Rs.13,75,524.10p (Rupees Thirteen lakhs seventy five thousand five hundred twenty four and paise ten) 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 defendant in the loan account 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 defendant.

The mortgaged property being all that piece and parcel of bastu land measuring 3.70 khatas or 2663 sq.ft out of total 5 khatas land be the same a little more or less lying and situated at Mouza – Kharia, Pargana – Baikanthapur, R.S. Plot No. 9, R.S. Khatian No. 16829, J.L.No. 5(7), Sheet No. 13, P.S. Kotwali, District – Jalpaiguri, ADSR-Jalpaiguri, which is butted and bounded by North- Municipality Road (7 feet wide), South- Land of Sri. Swapan Dutta, East- Karala River, West- Municipality Road (12 feet wide), as mentioned in the Schedule-A of the original application, and hypothecated properties being (i) the whole of borrower's present and future stocks lying at Pabitra Para, Jalpaiguri Town, P.S. – Kotwali, District – Jalpaiguri, West Bengal – 735 101 together with all store components and spares which now belong to or may hereafter from time to time during the continuance of this security belong to the borrower and which are or shall or may be brought into stored or

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be in or upon or about the borrower's godown, or wherever else the same may be situated, stored or lying or being, including any such raw material articles or goods, stores, spares and components or other similar moveable property in course of transit or delivery to the borrower (ii) all the proprietorship concern's present and future book debts, including monies, receivables, claims due and owing or which may at any time become due and owing to the borrower in the course of its business by any person, firm, company or body corporate or by the Government of India or any State Government or Indian Railways or any Government Department or office or any Municipal or local or Semi – Government body or authority or any undertaking or project in the Public Sector, 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 defendant is debarred from transferring; alienating, encumbering or disposing of the hypothecated/mortgaged properties or any other property and assets belonging to the defendant till the aforesaid adjudicated debt amount is recovered from the defendant.

The defendant is 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 defendant 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 defendant 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 defendant 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 11^th day of June, 2020.

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

**(D.S. MAHRA)** **Presiding Officer** **DRT, Siliguri.**

Siliguri