Allowed

Union Bank of India v. Sri Debobrata Phukon

DRT25 Sept 2023OA/130/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal allowed an application under Section 17 of RDBFI Act. The court issued a Recovery Certificate for Rs. 34.55 lakhs against two respondents who failed to repay a housing loan, holding them jointly and severally liable despite no written statement. Interest was awarded at 10% p.a.

What did the court decide?

Issued Recovery Certificate for Rs. 34,55,399.97 with pendente-lite and future interest at 10% p.a., costs, and right to proceed against secured and personal assets.

Union Bank of India versus Sri Debobrata Phukon — Banking and Recovery | DRT (2023)

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O.A. l30202zoRT4uwahrti

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IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

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(North Eastern Region)

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(Tribunal ofAssam, Nagaland, Meghalaya, Manipur, Mizoram, Arunachal Pradesh & Tripura)

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Before Shri Shiv Sharan Dubev. Presidinq Ofticer

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O.A. No. 130/2022

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ln tha mattar of - Union Bank of lndia Jorhat Branch A.T.Road, P.O. Jorhat, Chowk Bazar, District- Jorhat, Assam-785001.

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..Appticant

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Vs.

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l. Sri Debobrata Phukon Son of Sri Tua Kanta Phukon. Club Road, Near Jimkhana Club Road, Jorhai, Assam, Jorha!78500'1.

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Smti Ranjita Phukon Wife of Debobrata Phukon Club Road, Near Jimkhana Club Road. Jorhat, Assam, Jorhat-785001.

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Defendants

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Presence of the Counsel:

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For the Applicant : Mr. Subrata Dutta, Ms. Rimly Haloi, Mr. S. U.Haque, Advocates.

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For the Defendants No 1 & 2 : Mr. H. Talukdar, Advocate (Right to file ws cum EA ctosed)

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Dated :25t09t2029

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JUDGMENT

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This is an application under section^.lg of the Recovery of Debts Due to Banks and Financial lnstitutions Act, 1993 filed by the Union Bank of lndia, Jorhat Branch, A.T.Road, P.O. Jorhat, Chowk Bazar, Distric! Jorhat, Assam_78SOOi, with a prayer to issue Recovery Certificate for the sum of Rs. 34,55,399.97 (Rupees Thirty_Four Laca Fifty-Five Thousand Three Hundred Ninety_Nine and paise Ninety-Seven) only as on 12.09.2017 against the defendant with pendenterite and future interest at contractual rate till realizalion along with cost and other reliei

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A few facts giving rise to the present application are as under. s[.,vdqg;6

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s[.,vdqg;6 &^L Presidrng Ofticerl-^I 114^V DRT GNahAli

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o.A. 130/2022loRT€ur.h.ti

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The Defendant Nos.1 and 2 are the co-Applicants/borrowe6 and had availed a Housing Term Loan for construction of a RCC building over the landed property of Defendant No. 2 which had been put into equitable mortgage by the Defendant No. 2 with the Applicant Bank as security for repayment of the loan and the also Defendant no. 2 had stood as the personal guarantor to the said loan.

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The Defendants No. 1 and 2 had approached the Applicant Bank and applied for financial assistance for construction of RCC building vide Loan Applications dated 20.07.2017 and after considering the said loan application, lhe Applicant Bank vide its Sanclion Letter daled 12.09.2017 sanctioned a Term Loan of Rs.26.50 Lacs under Union Home scheme with lnterest at 10% per annum with monthly rests. The term loan was repayable in^'198 EMI of Rs. 24,617.00 commencing from April, 2019 with a moratorium period of 18 months. The Applicant Bank also reserved the right to charge additional interest in case of default. The said Defendants No.^.l and 2 had also executed D.P. Note and D.P. Delivery Letter both dated 12.09.2017, lnterest Agreement dated 12.09.20'17.

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ln connection with the sanction of the Term Loan of Rs. 26.50 Lacs, sanclioned by lhe Applicant Bank and availed of by the Defendants No. 1 and 2, a Housing Loan Agreement with fixed and floating Rate of lnterest dated 12.09.2017 and Letter of Confirmation (for MCLR loans) dated 12.09.201A were signed and executed by the Defendants No. I and 2 in favour of the Applicant Bank as security for repayment of the loan and also agreeing to all the terms and conditions contained therein.

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As security for repayment of the aforesaid loan facility availed of by the Defendants No. 1 and 2 both stood as the personal guarantors to the said loan by signing a Lefter of cuarantee dated 12.09.2017. The Oefendants No. 1 and 2 had also signed and executed Letter of Undertaking from Borrower and Guarantor both dated 't2.09.2017.

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Besides the securities for repayment of the abovementioned loan facility, the Defendant No. 2 had created Equitable Mortgage over a plot of land measuring 1 Katha 10 Lechas covered by Patta No. 761, Dag No. 784 more specifically described in Schedule-A ofthe OriginalApplication owned and possessed by her, by deposit of

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01W,I

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DRT. Guwahati

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O A 1 302022rDRT-Gwahali

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title deeds and other related land documents including Affidavits both dated 18.08.2017 as security for repayment of the abovementioned loan facility availed of by Defendants No. 1 and 2. Further, the said Defendant No. 2 had confirmed the creation of the Equitable Mortgage by signing and executing a Letter of Confirmation dated 12.09.2018.

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The Defendants No. I and 2 had availed of the said loan facility from the Applicant Bank, but have not paid the loan amount in the loan account as per the ierms and mnditions as agreed upon with the Applicant Bank, lnspite of repeated demands and requests by the Applicant Bank. However, the Defendant no. 2 had confirmed and acknowledges their indebtedness towards lhe Bank by signing and executing a Oebit Balance Confirmation and Acknowledgement dated O7.Og.2O2O and also confirm and acknowledge the outstanding balance as on 07.09.2020.

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As the Defendants have failed to repay the installments in the loan account, there accrued huge outstanding in the loan account and the Applicant Bank had demanded and requested the Defendants through Demand Letter dated 02.04.2021 lo pay the outstanding amount in the loan account including the accrued interest thereon on the failure to do so legal action shall be taken against the Defendants. But the Defendants failed to regularize the loan account. lt is for the information of this Hon,ble Tribunal that the Applicant bank had initiated proceedings under SARFAESI Act, 2OO2 by issuing a Demand Notice dated 17.04.2021 to the Defendants, but they failed to respond to the same.

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The defendants had availed the said loan facility from the applicant bank but have not paid the ouistanding loan amount as per terms and conditions as agreed upon with the applicant bank, in spite of repeated demands and request by the applicant bank. However, the defendant No. 2 had confirmed and acknowledged their indebtedness towards the Bank by signing and executing an Acknowledgement of Debit Balance confirmation and acknowledgement dated 07.09.2020. As the defendants failed to repay the installments in the loan account, the said accounts became NPA on 29.01.2021. After the account became NpA the applicant bank issued notices for repayment of the due amount, but the defendant has neither chosen

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o.A. l3cr2o22lDRT6uw.hati

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for repayment of the remaining installments in the loan account nor approached to the applicant bank for seftling the loan account.

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The applicant bank thus became constrained to tlle the present Original Application for the recovery of Rs. 34,55,399.97 (Rupees Thirty-Four Lacs Fifty-Five Thousand Three Hundred Ninety-Nine and paise Ninety-Seven) only as on 12.09.2017 along with interest and cost of the application.

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After filing of the OA the Tribunal issued notice upon the defendants through registered post and the applicant bank flled service report on 24.05.2022 and brought on record the postal receipt along with track consignment report which shows that the notice has not been served upon the defendants. Thereafrer the Tribunal ordered paper publication of notice upon the defendants and the applicant bank issued notice to the defendanls on 7.06.2022 through Paper Publication in two newspapers namely 'Ihe Times of lndia" and "Dainik Asom". The learned counsel for defendants had appeared on 25.07.2022 by filing Vakalatnama and sought time to file written statement cum evidence on affidavit. Thereafter, the case was listed on 08.08.2022, 22.O8.2022, 05.09.2022 & '12.09.2022, but the written statement cum evidence on affidavit has not been filed by the defendants. Hence, their right of the file written statement cum evidence on affidavit was closed on 12.09.2022. Thereafter the matter was fixed for hearing.

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Supporting the claim of the applicant bank Sri Hemanta Khatarniar, Seniol Manager of the Applicant Bank has filed evidence on affjdavit coupled with the security documents marked as Document- P, Exhibit AW-1 to AW-21, supporting the claim of the applicant bank.

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Heard the learned counsel for the applicant bank who prayed for issuance of Recovery Certificate against the defendants as per pleadings made in the Application, suppo(ed by evidence on affidavit of their witness who affimed on oath the execution of the security and other documents by the defendants and also execution of lheir own documents relied upon, which have been marked exhibits.

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Considering the facts and circumstances of the case, I am of the considered view that the documents filed by the applicant bank are supporting the claim of the

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5 o-A. 130/2022lDRr4uwah.ri

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applicant bank and establishing the tiabitity of the defendants. tt is proved that the defendants are liable to pay to the applicant bank the claim made in the Original Application. The loans were obtained and documents have been executed on 12.09. 2017. The defendant No.2 had confirmed and acknowledged their indebtedness towards the Bank by signing and executing an Acknowledgement of Debit Ealance contirmation and acknowledgement dated 07.O1.2O2O. The account became NPA on 29.01.2021 and the OA has been filed on 01.04.2022. Hence, the OA is filed well within the period of limitation and this Tribunal having a jurisdiction to adjudicate the Original Apptication.

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Considering the unchallenged/unrebutted version of Sri Hemanta Khatarniar, the applicant's witness and all the documents marked as exhibits, including duly certified copy of the statement of account arong with interest carcuration sheet maintained by the applicant Bank in it's regular course of business, I hold that the applicant is entitled to get the Recovery Certificate as prayed fo[.

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ln the result, the present Original Apptication No. i30 of 2022 is allowed with cost as under: -

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i) The defendants No. 1 & 2 are join y and severally liable to pay to the applicant bank a sum of Rs. 34,55,399.97 (Rupees Thirty_Four Lacs FifryFive Thousand Three Hundred Ninety-Nine and paise Ninety-Seven) only with pendentelite and future interest @10% per annum with monthly rests frcm 13.09.2017 tifl the date of full paymenurealization and also cost of fhe application.

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ii) The charge of the certificated amount be kept alive on mortgaged property i.e. A plot of land measuring 1 Katha, 10 Lechas covered by p.p No. 761, Dag No. 2122 situated at Charigaon Mouza, Kalakhowa Gaon, District - Jorhat, Assam and bounded by-, East: Ali Chiga pool, West: Road, North: Land of Thaneswar Mudoi, South: Road Land of pinki Dutta Bora, as described in Schedule-A of the OA till the amount is realized in full.

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iii) The applicant bank is entifled to proceed against the secured items towards recovery of the debts.

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e P'esid,ng ofi-+i DRT, Gt wahali

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O.A. 130/2022lDRT-Guwahati

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iv) The applicant bank is also entitled to^proceed against the^personal assets and properties of the defendants towards recovery of the dues.

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v) The applicant bank is entitled to the costs of the O.A. which includes the advocate fees of the applicant bank. Applicant is directed lo lile the cost memo within 2 weeks from today,

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vi) lssue Remvery Certilicate accordingly for a sum of Rs. 34,55,399.97 (Rupeos Thirty-Four Laca Fifty-Five Thousand Three Hundrsd NinstyNine and pabe Ninety-Sevsn) only in favour of the applicant bank against the defendant No. 1 & 2.

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vii) Communicate copy of this order to the concemed^pariies. This order is dictated and conected by the undersigned.

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Judgment dated 25th September' 2023, signed and^pronounced in the Tribunal

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today under my signature.

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Copy of the JudgmenuFinal Order be uploaded in the Tribunal's Website and

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file be consigned to Record Room.

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d,,;L$q -Ytq dz^^a^A"$^- \r l?.^/1 lShiv^Shar r^{n h&ffiy1 \l Presiding Officer DRT, Guwahati.

Union Bank of India v. Sri Debobrata Phukon

Case brief

What is this about?

What did the court decide?

Union Bank of India v. Sri Debobrata Phukon

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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