Dismissed

Bank of Baroda v. Malay Das

DRAT18 Dec 2024MISC APPEAL/21/2024

Case brief

AI extract

What is this about?

The DRAT disposed of two miscellaneous appeals filed by the Bank of Baroda challenging an earlier order. The Tribunal upheld the lower court's direction for the Bank to refund the balance amount to the borrowers, relying on Statement of Accounts and an affidavit filed by the Bank itself, and set aside costs. Both appeals were dismissed.

What did the court decide?

Direction to the Appellant Bank to refund Rs. 3,02,789.91 to the Respondents within thirty days with interest at 9% p.a. from 15.12.2023.

Bank of Baroda versus Malay Das — Contract and Commercial Disputes | DRAT (2024)

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Reportable/Non-Reportable

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Misc. Appeal No. 21 of 2024 & Misc. Appeal No. 22 of 2024 -DRAT-Kolkata IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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THE HON'BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON

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Misc. Appeal No. 21 of 2024

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(Arising out of S.A. 383 of 2022 in DRT-III, Kolkata) With Misc. Appeal No. 22 of 2024

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(Arising out of S.A. 383 of 2022 in DRT-III, Kolkata)

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Bank of Baroda Body, a Body Corporate constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, having its head office at Baroda Bhavan, R.C. Dutt Road, Alkapuri, Baroda- 390 007, having its branch office at Ghatakpukur Branch, Village Ghatakpukur, Post Office Gobindapur, Police Station Bhangar, District - South 24 Parganas, Pin Code – 743 502;

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The Authorised Officer, Bank of Baroda, having its branch office Ghatakpukur Branch, Village Ghatakpukur, Post Office Gobindapur, Police Station Bhangar, District - South 24 Parganas, Pin Code – 743 502.

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… Appellants

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-Versus-

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Malay Das, Son of Late Subhash Chandra Das, residing at village Uttar Bagirhual, Police Station & Post Office - Minakhan, District – North 24 Parganas, Pin Code -700 105;

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Mrs. Indumati Das, Wife of Late Subhash Chandra Das, residing at village Uttar Bagirhual, Police Station & Post Office - Minakhan, District – North 24 Parganas, Pin Code -700 105.

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… Respondents

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Counsel for the Appellant … Mr. Dipanjan Datta Counsel for Respondents … Mr. Debasish Karmakar Mr. Arya Nandi Mr. Parikshit Lakhotia

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JUDGMENT : 18^th December, 2024

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THE APPELLATE TRIBUNAL :

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1. Heard the Learned Counsel for the parties and perused the records.

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Misc. Appeal No. 21 of 2024 & Misc. Appeal No. 22 of 2024 -DRAT-Kolkata 2. Both these Misc. Appeals are being decided simultaneously as issue involved in both the appeals arises out of one common question.

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3. S.A. 383 of 2022 was filed before the Learned DRT-III, Kolkata for reliefs challenging an auction undertaken by the Bank under the SARFAESI Act. Pending S.A., Borrowers cleared all the dues as per the Statements of Account of the Bank dated 16^th September, 2022 and 30^th September, 2022; showing amount of Rs.3,64,180.33p and Rs.3,57,576.83p respectively, as credit amount in the ledger of the SARFAESI Applicant. Since accounts were settled, Learned DRT passed an order to issue ‘No Due Certificate’ and to return the original title deeds of the secured assets to the Borrower by the secured creditor, i.e. the Bank and also to refund the balance amount with 10% interest till the date of payment, if so found on calculation. In the order dated 28.11.2023, Learned DRT also recorded that the Learned Counsel for the Bank does not oppose the petition.

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4. A Review Petition, being I.A. 3476 of 2023, is filed by the Bank to recall/review of the order dated 28^th November, 2023 on the pretext that no such consent was ever given by the Learned Counsel for the Bank. Review Petition No. 3476 of 2023 was dismissed by the Learned DRT with cost of Rs.15,000.00. 5. Learned Counsel for Appellant would submit that after settlement of the account, an amount of Rs.3,57,576.83 was shown as credit as on 30^th September, 2022. However, a

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Misc. Appeal No. 21 of 2024 & Misc. Appeal No. 22 of 2024 -DRAT-Kolkata letter was submitted by the Respondent Borrower to the effect that he shall pay all the remaining due of Rs. 1,26,841.00 and other expenses which the Bank has incurred, upon production of proper bills/invoices, during the recovery procedure of N.P.A. Account. Borrower also undertook to pay the same by 17.12.2022.

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6. Learned Counsel for Appellant Bank further submits that a supplementary affidavit was filed by the Bank with an undertaking that charges, etc., would be deducted by the Bank. This statement is not a Statement of Account rather it is a typed statement. This statement is not in accordance with Bankers’ Books Evidence Act. However, subsequent to it, the supplementary affidavit of Ms. Saba Iram, Senior Branch Manager of the Appellant Bank, was filed wherein balance amount was also shown in the Statement of Account which was being maintained by the Bank. 7. Learned Counsel for Respondent denied the contents of this letter and submitted that although the letter bears the signature of the Borrower but contents are not admitted. Signature was obtained on blank paper. But this submission cannot be accepted as no material on record is produced to substantiate such submission. When a letter is signed by a person he is bound by the contents in the letter. Further, in the supplementary affidavit filed by the Bank on 3^rd July, 2024 a Statement of Account with effect from 1.12.2023 to 15.12.2023 is annexed wherein a balance of Rs.3,02,789.91p was shown in the account of the Borrower. This Statement of Account is filed by the Bank itself. It is

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Misc. Appeal No. 21 of 2024 & Misc. Appeal No. 22 of 2024 -DRAT-Kolkata stated in the affidavit that the account has been closed; ‘No Due Certificate’ has been issued and original title deeds have also been returned. No details regarding Statement of Accounts are mentioned in the affidavit rather Statement of Account has been annexed to the affidavit. Since the same is filed by the Appellant Bank itself, genuineness of the same cannot be put to doubt. This statement is dated 15.12.2023 that is much after the alleged letter signed by the Borrower wherein it is stated that the amount would be settled by 17.12.2022. It means after considering the debit and credit amount, Statement of Account dated 15.12.2023 was prepared by the Bank which is filed with the affidavit by one Ms. Saba Iram, Senior Branch Manager of the Appellant Bank. Accordingly, in view of the affidavit and the Statement of Accounts it is crystal clear that that Appellant owes the liability of Rs.3,02,789.91p towards the Borrower. Accordingly, Appellants are liable to make payment of this amount to the Borrower. However, since litigation is going on one pretext or the other, I do not find any reason to impose any cost upon the Bank. 8. As far as consent of the Learned Counsel for Appellant Bank recorded by the Learned DRT is concerned, since no written objections were filed before the Learned DRT, it appears that it was treated as consent given by the Learned Counsel for the Bank. 9. On the basis of basis of the discussion made above, I am of the considered view that both the appeals are liable to be disposed of with a direction to the Bank to refund an

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Misc. Appeal No. 21 of 2024 & Misc. Appeal No. 22 of 2024 -DRAT-Kolkata amount of Rs.3,02,789.91p to the Respondents within a period of thirty days from today. If the amount is not paid within the stipulated period, Respondents shall be entitled to interest at the rate of 9% per annum from 15.12.2023 till the date of actual payment. Order regarding imposition of cost upon the Appellant is set aside.

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O R D E R

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Both the appeals, being Misc. Appeal No. 21 of 2024 & Misc. Appeal No. 22 of 2024 stand disposed of with a direction to the Bank to refund an amount of Rs.3,02,789.91p to the Respondents within a period of thirty days from today. If the amount is not paid within the stipulated period, Respondents shall be entitled to interest at the rate of 9% per annum from 15.12.2023 till the date of actual payment. Order regarding imposition of cost upon the Appellant is set aside.

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Copy of this judgment be placed in the records of Misc. Appeal No. 22 of 2024.

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Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.

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File be consigned to Record room.

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Order dictated and pronounced in open Court.

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(Anil Kumar Srivastava,J) Chairperson

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Dated: 18^th December, 2024 12 & 13/ac

Bank of Baroda v. Malay Das

Case brief

What is this about?

What did the court decide?

Bank of Baroda v. Malay Das

Case brief

What is this about?

What did the court decide?

What the court decided

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