STATE BANK OF INDIA vs Sri Subrata Das on 19 August 2020

J U D G M E N T

(Delivered 19^th August 2020)

The applicant bank is a body corporation, constituted under the State Bank of India Act, 1955, having its Local Office at No.1, Strand Road, Kolkata-700001 and carrying on business, inter-alia, at its Pradhan Nagar Branch, Meghnad Saha Sarani, Pradhan Nagar, Siliguri, Post Office and Police Station Pradhan Nagar, District – Darjeeling, West Bengal, Pin – 734003.

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

The defendant on 13/12/2011 applied to the applicant bank for a Term Loan of Rs. 53,13,000/- for purchasing two AMW2518 TP4300 TIPPER BS III and the said proposal was recommended and forwarded to the applicant's RASMECCC Branch (presently known as Retail Assets Central Processing Centre), Sky Star Building, Panitanki More, Sevoke Road, Siliguri and in view of the said application, the applicant bank's RASMECCC Branch (presently known as Retail Assets Central Processing Centre) sanctioned a Term Loan of a sum of Rs. 53,13,000/- for purchasing two (Contd. )

Siliguri

AMW2518 TP4300 TIPPER BS III in favour of the defendant vide Letter of Arrangement dated 31/12/2011. The term loan was to be repaid by 57 monthly installments of Rs. 1,32,271.00 commencing from February, 2012 besides interest @15.50% per annum with monthly rests subject to changes from time to time as per Reserve Bank of India Directives.

The defendant executed one Agreement of loan cum-hypothecation (SME-2) in respect of the said term loan in favour of the Applicant Bank.

The applicant bank allowed the defendant to avail of the said facility and accordingly the defendant availed of the aforesaid facility by opening a Term Loan Account in the name of the defendant.

It is the contention of the applicant bank that after availment of loan by the defendant, the loan account became most irregular and inspite of requests and reminders the defendant did not regularize the said account and did not repay the installments in terms of the said loan the defendant failed and neglected to keep regularized the said account as per terms and conditions thereof and ultimately the account was classified as NPA on 29/08/2012.

The Applicant Bank submits that after the account was classified as NPA, the Applicant Bank issued Notice dated 17/12/2013 under Section 13(2) of the SARFAESI Act, 2002 upon the defendant and demanded a sum of Rs.51,32,416.00 as on 17/12/2013. Inspite of the said Notice, the defendant failed and neglected to repay the dues of the said loan accounts and/or comply the same.

Thereafter, the applicant bank through its Advocate issued Demand Notice on 19/10/2014 but inspite of the Demand Notices, the defendant failed and neglected to repay the dues of the loan account though the defendant paid a sum of Rs. 80,000/- on 31/7/2013 being last deposit in the said loan account.

According to the applicant bank, after giving credits for all sums of moneys paid by and/or realized on behalf of the defendant, there is now due from and owing by the said defendant in respect of the loan account altogether a sum of Rs.57,12,088.00 with interest calculated upto 30.09.2014.

Silliguri

(Contd...)

Despite the service of summons upon the defendant through newspaper publication, the defendant neither appeared nor filed the written statement against the claim of the applicant bank. Hence, the defendant was ordered to be proceeded ex-parte on 17/9/2019.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Suryanarayan Rakshit, the Chief Manager, State Bank of India, SARB, Siliguri, District – Darjeeling, West Bengal 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 31/12/2011</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Agreement of Loan-cum-Hypothecation dated 31/12/2011</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Demand Notice dated 19/10/2014</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Statement of account</td> <td>4</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 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.323/2017 arising out of O.A. No. 1284/2014 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.57,12,088.00 (Rupees fifty seven lakhs twelve thousand and eighty eight) only with further interest thereon @11.00% p.a. with quarterly rests from the date of filing of the application till realization of entire balance.

Siliguri

(Contd...)

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 hypothecated vehicles being (i) AMW2518TP, TP4300 Tipper BS III bearing Registration No. WB-73-C-3602, Engine No. 11H84015442, Chassis No. MBYB900BHA19988 (ii) AMW2518TP, TP4300 Tipper BS III bearing Registration No. WB-73-C-3606, Engine No. 11H84015849, Chassis No. MBYB24951BHA19989, 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 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 19^th day of August, 2020.

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

(D.S. MAHRA)

DRT, Siliguri.

Siliguri