CANARA BANK (SYNDICATE BANK) vs SABYASACHI RAY on 25 January 2024

J U D G M E N T

1. The Original Application has been filed by the Applicant against the Defendants before Ld. DRT-III, Mumbai, which stands transferred to this Tribunal as per the Govt. Notification dated 26/09/2016 and registered as TA No. 436/2016. The OA has been filed by the Applicant for recovery of Rs. 37,37,323.40 (Rupees Thirty Seven Lakh Thirty Seven Thousand Three Hundred Twenty Three and Paise Forty Only) with further interest at the rate of 16% p.a. at monthly resets from the date hereof till the payment and or realization.

2. Facts as succinctly set out in the present OA are that the Defendant No. 1 is the Borrower and is in profession of producing/ directing Television Serials. Defendant No.2 is the wife of the Defendant No.1 and also the borrower with the Applicants on account of development of dues due to return of cheques discounted to them. It is stated that upon the request made by the Defendants, the Applicant on 17/12/2002 opened two separate savings bank accounts in the same of Defendant No. 1 and Defendant No. 2 respectively. Further, on request made by the Defendant No. 1, the Applicant, on 09.05.2003 opened a current account in the name of Defendant No. 1.

3. It is also stated that personal loans were availed by the Defendants from the Applicant in the month of December, 2002. Upon request made by Defendant No. 1, somewhere in May 2002, Applicant has opened a current account in the name of Defendant No. 1 & Defendant No. 2 as Proprietor of M/s. Telestial Communicates.

4. In the month of June 2003, the Defendants approach the Applicant with a request to discount the cheques which was permitted by the Applicant and during the course of the said cheque discounting the following cheques were discounted with the Applicants for valuable consideration: i. Cheque No. 040842 dated 06.06.03 for Rs. 8 Lakh. The said cheque was drawn on Standard Chartered Bank, Chowpatty Branch, Mumbai, drawn by one Mangal Singh Negi favouring Defendant No. 1. The Applicants gave credit of the said cheque to the First Defendants current Account No. 2752. ii. Cheque No. 887079 dated 04.06.2003 for Rs. 8 Lakh. The said cheque was drawn on Punjab & Maharashtra Co- Operative Bank Limited, Andheri (East), Branch, drawn by Shri. Mangal Singh Negi in favour of Defendant No. 1. iii. Cheque No. 887074 dated 02.06.2003 for Rs. 8 Lakhs was drawn on Punjab & Maharashtra Co-Operative Bank Limited, Andheri (East), Branch, by Shri. Mangal Singh Negi in favour of Defendant No. 2.

5. It is further stated that upon request made by Defendant No. 2, a 4th Cheque for Rs. 8 Lakh being Cheque No. 251167 dated

06.06.2003 for which credit was given in the account of Defendant No. 2. The said cheque was cleared by the Defendants on 05.08.2002 with interest.

6. It is stated that the three cheques which were discounted by the Applicant were dishonoured when presented for payments. Further, in consideration of the Defendant No. 1 have executed the following documents on 10.06.2003 in favour of the Applicant: i. Letter of 10.06.2003 requesting the Applicant to open an overdrawing account ii. Demand Promissory Note iii. Letter for waiver of Notice of interest iv. Letter dated 10.06.2003 enclosing the demand promissory note

7. It is further stated that Defendant No. 2 by her letter dated 05.06.2003 requested the Applicant to debit the current account to the extent of the amount dishonoured cheque of Rs. 8 Lakh which was debited to the savings account of Defendant No. 2. By the said letter Defendants also informed the Applicant that they had submitted a proposal for loan with Cosmos Co-operative Bank Ltd. which was almost sanctioned. Thereafter, Defendants by their letter dated 10.06.2003 have admitted and confirmed that the aforesaid cheques which were dishonoured will be paid in full along with necessary charges on or before 30.06.2003.

8. It is further stated that Defendant No. 1 vide his covering letter dated 10.01.2004 deposited 3 cheques towards repayment of the dues of the Defendants which are: i. Cheque No. 088990 dated 12.01.2004 for Rs. 12 Lakh. The said cheque was drawn on UTI Bank, Andheri (W) Branch, Mumbai. ii. Cheque No. 088991 dated 17.01.2004 for Rs. 13 Lakh. The said cheque was drawn on UTI Bank, Andheri (W) Branch, Mumbai. iii. Cheque No. 088992 dated 14.01.2004 for Rs. 80,000/- was drawn on UTI Bank, Andheri (W) Branch, Mumbai.

9. Pursuant thereto, the Defendant No.1 had forwarded 2 cheques in March 2005 for R.5 lakh each towards payment of his dues. The said cheques were dishonoured when presented for payment therefore, the Applicant filed proceeding under Section 138 of Negotiable Instrument Act, before Ld. CMM, Mumbai being Cash No.4925 dated 12.05.2005.

10. It is also stated that the Defendants admitted the fact that the said cheques were dishonoured. The Defendant No.2 admitted the return of cheque and requested the Applicant to debit (adjust) the same of Rs.8 lakhs in the current account of Defendant No.1 by allowing temporary overdrawings.

11. It is further stated that Defendant No. 1 by a letter of acknowledgement dated 13.06.2003; 21.08.2003; 23.01.2004

have admitted and acknowledged the liability to make payments to the Applicant.

12. However, after availing the aforesaid credit accounts, the Defendants failed to regularise the said account. Thereafter, the Applicant by their letter dated 16.12.2003 and also Advocate’s letter dated 10.06.2004 called upon the Defendants to make the payment of the outstanding dues but they failed to pay the dues. Hence, the present OA has been filed.

13. Notices were issued to the Defendants. Defendants put their appearance through counsel on 08.06.2023 however, thereafter, none appeared for the Defendant No. 1 & 2 nor filed the WS.

14. The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed on 13.04.2010 through Senior Branch Manager Nitin.

15. I have heard the Ld. Counsel for the Applicant Bank and perused the record.

16. The witness of the Applicant Bank has fully corroborated the averments made in the OA, even otherwise the whole case of the Applicant Bank is based on documents and the witness has duly proved all these documents as against the defendants. In my view there is no question of disbelieving the evidence led by the Applicant Bank and the Applicant Bank has proved its case beyond reasonable doubt. The liability of Defendant No. 1 & 2 is joint and several.

17. In the light of the abovesaid discussions, the Original Application filed by the Applicant Bank deserves to be allowed against the Defendant No. 1 & 2.

O R D E R

(i) I allow the present O.A. and direct the Defendant No. 1 & 2, to pay to the Applicant, jointly and severally, within a period of 60 days, a sum of Rs. 37,37,323.40 (Rupees Thirty Seven Lakh Thirty Seven Thousand Three Hundred Twenty Three and Paise Forty Only) with further interest at the rate of 16% p.a. at monthly resets from the date of filing of the present OA till its realization.

(ii) Failing which the aforesaid amount shall be recovered from the sale of personal moveable and immoveable assets of the Defendants.

(iii) Defendants are hereby directed not to deal with their properties till further direction of Ld. Recovery Officer.

(iv) Defendants shall also pay the cost and expenses of the OA.

(v) Recovery Certificate be issued forthwith and be sent to the Recovery Officer of this Tribunal. Copy of this order be sent to the parties as per rules. File be consigned to record.

Place: Mumbai.

(Dr. Rekha G. Dhakar) Date : 25.01.2024

Presiding Officer, DRT-1, Mumbai.

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