Allowed

Punjab National Bank v. Kiran Agro

DRT8 Sept 2023OA/138/2022

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal allowed an application by Punjab National Bank for a recovery certificate of Rs. 62,51,469.46 against Kiran Agro and personal guarantors. The court found unchallenged evidence of execution of loan documents and liability, ordering the release of the certificate with interest and costs.

What did the court decide?

Issuance of a recovery certificate for Rs. 62,51,469.46 with pending and future interest at 10.25% per annum and costs ordered against the defendants.

Punjab National Bank versus Kiran Agro — Contract and Commercial Disputes | DRT (2023)

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O.A. 1 3812022/DRT-Guwahati

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IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

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(rribunarorAssam, Nasarand, J#j:r:T::tiffi,tJ:P, Arunachar pradesh & rripura)

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O.A. No. 138/2022

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ln the matter of -

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Punjab National Bank Recovery (SASTRA) Centre, Guwahati Circle Office, Nilgiri Mansion, lstFloor, G. S. Road, Bhangagarh, Guwahati- 781 005, Assam

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. . .. .Applicant

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Vs.

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Kiran Agro

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Villag-e: Boragaon, (Near L.p. School), P.O. & P.S: Gorchuk, Guwahati,

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District-Kamrup(Metro), Assam_7g1 033.

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Sri Ajit Deka

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Son of Sri Debendra Deka

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Bezera, Village - Titkuchi,

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P.S. Baihata Chariali, DistriclKamrup(Rural), Assam

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Smt. Kiran Deka

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Wife of Debendra Deka

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Bezera, Village - Titkuchi,

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P.S. Baihata Chariali, DistrictKamrup(Rural), Assam

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Sri Ratul Deka

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Son of Debendra Deka

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Bezera, Village - Titkuchi,

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P.S. Baihata Chariali, DistrictKamrup(Rural), Assam

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Sri Jayanta Deka

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Son of Debendra Deka

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Bezera, Village - Titkuchi,

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P.S. Baihata Chariali, DistrictKamrup(Rural), Assam

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Sri Rajib Deka

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Son of Debendra Deka Bezera, Village - Titkuchi,

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P.S. Baihata Chariali, DistrictKamrup(Rural), Assam.

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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 Hatoi, Mr. S.U. Haque, Advocates.

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For the Defendants No^.l & 2 : Mr. A. K. Rai, Ms. K. Aganrval, Advocates (Right to file WS cum EA ctosed)

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For the Defendant No.3, 4, S & 6 : None (Ex_parte)

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O.A.'l 38/2o22lDRT-cuwahati

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Dated :08/09/2023

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JUDGMENT

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This is an apprication under section 19 of the Recovery of Debts Due to Banks and Financial lnstitutions Act, 1993 filed by the punjab National Bank, Recovery (SASTRA) centre, Guwahati circle office, Nirgiri Mansion, 1sr Froor, G. S. Road, Bhangagarh, Guwahati- 781005, Assam, with a prayer to issue Recovery certificate for the sum of Rs. 62,51,469.46 (Rupees sixty Two Lacs Fifty one Thousand Four Hundred sixty Nine and paise Forty six) onry as on 31 .03.2022 against the defendant with pendentelite and future interest at contractual rate till realization along with cost and other relief.

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A few facts giving rise to the present application are as under.

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The Defendant No.1 is a proprietorship Firm and the Defendants No. 2 is the proprietorof the Defendant No. 1 Firm and the Borrower. The Defendants No.2,3, 4, 5 and 6 stood as the personal guarantors and the Defendants No.2, 3,4, 5 and 6 had also created Equitable Mortgage over their landed properties. The Defendant No. 2 through his Defendant No. 1 Firm had been running business unit of seiling tractors, agricultural tools, implements and equipments etc.

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The Defendants No. 2 on beharf of the Defendant No. 1 Firm had approached the Applicant Bank and applied for financial assistance for running his day to day Agro-based business vide Loan Apprication dated 01.07.20.17and the Applicant Bank after considering the said Application had vide sanction Letter dated14.07.2017 sanctioned a cash credit(Hypo) of Rs. 60.00 Lacs with interest at 10.25% per annum (which at the time of sanction stood at BR g.35%+2.60% _ 0.75%) and the effective rate at the time of sanction stood at 1o.25o/o per annum with monthly rests ('0.75% concession on Ror where RV of coilaterar security is more than 100%) and the cash credit roan facility was repayable on demand. The Defendants No. 1 and 2had signed and executed various roan cum security documents which are mentioned below-

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a) Loan Application dated 01.07.2017

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b) Sanction Letter dated 14.07.2011and Acceptance all dated 14.07.2017 for Rs. 70.00 Lacs.

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O.A. .t 38/2o2zDRT-Guwahati

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c) Agreement of Hypothecation of Goods and Book Debts to secure Cash

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Credit (Hypo) of Rs. 60.00 Lacs dated 17.07.2017(more specifically

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described in Schedule-A of the OA)

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d) Undertaking dated 14.02.2017

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ln connection with the sanction of the cash credit (cc) Limit of Rs. 60.00 Lacs sanctioned by the Applicant Bank and availed of by the DefendantNo.l Firm, three separate Agreements of Guarantee all dated 14.07.2017 were signed and executed by the Defendants No. 2,3, 4, s and 6who stood as the guarantors to the said loan facility in favour of the Applicant Bank as security for repayment of the loan.

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As security for repayment of the loan facility, the Defendant No. 3 had created equitable mortgage over 2(two) separate plots of land measuring 4 Kathas andS Lechas (Dag No. 1085 and 1089 of KP Patta No. 33) & 1 Bigha and 2 Kathas (Dag No. 80 Patta No. 170) respectively (more specifically described in Schedules B and C herein below) by deposit of Registered Sale Deeds dated 13.02.1989 and 21.01.1992 along with other relevant land documents with the Applicant Bank.

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The said Defendant No. 3 had also confirmed the creation of equitable mortgage over the said plots of land (more specifically described in Schedules B and C herein below) in connection with the loan facility avalled by Defendant No. 1 Firm by signing and executing Letter of Confirmation (Annexure-ll) dated '14.07.2017.

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Similarly, the Defendants No. 2, 4, 5 and 6 also created equitable mortgage over a plot of land measuring 3 Kathas 19 Lechas covered by Dag No. 1017 of KP Patta No. 78 (more specifically described in Schedule D herein below) by deposit of Registered Sale Deed daled 28.07.1967 along with other relevant land documents with the Applicant Bank.

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The said Defendants No.2, 4, 5 and 6 had also confirmed the creation of equitable mortgage over the said^plot of land (more specifically described in Schedule D herein below) in connection with the loan facility availed by Defendant No. 1 Firm by signing and executing a Letter of Confirmation (Annexure-ll) dated 14.07.2017.

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The Defendant No. 1 Firm had avaired of the said roan facirity from the Appricant Bank, but have not paid the roan amount as per the terms and conditions as agreed upon with the Appricant Bank, inspite of repeated demands and requests by the Applicant Bank. However, the Defendant No. 2 in his capacity as the proprietor of the Defendant No.'r Firm had confirmed the outstanding barance in the loan account by signing and executing Balance and Security Confirmation Letter dated 22.04.2020. rt is further stated herein that the Appricant Bank had arso sanctioned the GECL (Guaranteed Emergency credit Line) being 2s% of the outstanding barance of the MSME roan of the defendant no. 1 Firm as on 29.02.2020 as covid-19 sustenance and requested the Defendant No. 1 Firm to approach and contact the concerned Branch of the Applicant for further processing of the GECL roan. Moreover, vide Apprication dated 26.o2.2o2o,the Defendant No. 1 Firm through its proprietor i.e., Defendant No. 2 has requested the renewar of Cash Credit loan.

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The defendants have avaired of the said loan facirity from the applicant bank, but have not repaid the roan amount as per the terms and conditions as agreed upon with the applicant bank in spite of repeated demands and requests by the appricant bank. Hence the loan accounts became NpA on 31-03-2021 . After the account became NPA the appricant bank issued notices for repayment of the due amount, but the defendants failed to repay the loan amount or renew the loan account.

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The applicant bank thus became constrained to fire the present originar Appllcation for the recovery of Rs. 62,5i,469.46 (Rupees sixty Two Lacs Fifty one Thousand Four Hundred sixty Nine and paise Fofi Six) only as on 31.03.2022 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 filed service report on 2s.0s.2022 and brought on record the postal receipt along with kack consignment report which shows that the notice has been served upon the defendants No 1 & 2 and notice has not been served upon the defendants No. 3, 4, 5 & 6. Thereafter the Tribunal ordered paper publication of notice upon the defendants No. 3, 4, s & 6 and the

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sl.,;/ ( Presiding DRT,

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O.A. t 38/2o2zDRT-cuwahati

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applicant bank issued notice to the defendants on 30.06.2022 through paper Publication in two newspapers namely "The Times of tndia" and "Dainik Asam". Even after issuance of notice through paper publication also there was no representation on behalf of the defendants No. 3, 4, 5 & 6 either by the counsel or the person and hence the defendants No. 3, 4, 5 & 6 were set ex-parte on 27.0g.2022. The leamed counsel for defendants No 1 & 2 had appeared on 2S.OS.2OZ2 by filing Vakalatnama and sought time to file written statement cum evidence on affidavit. Thereafter, the case was listed on 23.06.2022, 30.06.2022, 22.07.2022, O3.OB.ZO22 & 11.08.2022, but the written statement cum evidence on affidavit has not been filed by the defendants No.1 & 2. HeRce, their right of the file written statement cum evidence on affidavit was closed on'11.08.2022. Thereafter the matter was fixed for hearing.

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Supporting the claim of the applicant bank Sri Guru Prasad Talukdar, Chief Manager of the Applicant Bank has filed evidence on affidavit coupled with the security documents marked as Document- P, Exhibit AW-1 to A-37, 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, supported by evidence on affidavit of their witness who affirmed on oath the execution of the security and other documents by the defendants and also execution of their 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 clairn of the applicant bank and establishing the liability of the defendants. lt is^proved that the defendants are liable to pay to the applicant bank the claim made in the Original Application. The loan was obtained and documents have been executed on 14.07.2017. the Defendant No. 2 in his capacity as the^proprietor of the Defendant No.1 Firm had confirmed the outstanding balance in the loan account by signing and executing Balance and Security Confirmation Letter dated 22.04.2020. The account became NPA on 31.03.2021 and the OA has been filed on 13.04.2022.

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s{-, Presiding DRT,

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0.A.^{,t38/2o22lDRT€uwahati}

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Hence, the oA is filed well within the period of rimitation and this Tribunar having a jurisdiction to adjudicate the Original Application.

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considering the unchallenged/unrebutted version of sri Guru prasad ralukdar, the applicant's witness and all the documents marked as exhibits, including duly certified copy of the statement of account along with interest calculation 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 for.

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ln the result, the present original Application No. i3g ot 2022 is allowed with cost as under :-

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i) The defendants No. 1, 2, 3, 4, s & 6 are joinfly and severaily riabre to pay to the applicant bank a sum of Rs. 62,s1,rr69.46 (Rupees sixty Two Lacs Fifty one Thousand Four Hundred sixty Nine and paise Forty Six) onry with pendentelite and future interest @1o.2so/o per annum with monthly rests from 01.04.2022 tilr the date of full paymenurealization and arso cost of the application.

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iD The charge of the certificated amount be kept arive on hypothecated

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properties as described in schedule-A of the oA till the amount is realized in full.

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iii) The charge of the certificated amount be kept alive on mortgaged property i.e. A plot of land measuring 4 katha 8 lechas covered by Dag No. 10gs and 10g9 of K.P.Patta No. 33 of Village Titkuchi (Salmara), Mouza_ Karara, p.O. Bezera, P.S. Baihata Chariali, District- Kamrup (Rural), Assam_ 7g1121 with a building standing thereover in the name of the defendant No. 3 and bounded by - North: Land of Dag No. 1090; South: Land of Dag No. 10gg; East Land of Dag No. 1086 & 1092; West: Road, as per Registered Sale Deed No. 640 dated 13.02.1989, as described in Schedule-B of the OA till the amount is realized in full.

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iv) The charge of the certificated amount be kept alive on mortgaged properg i.e. A plot of land measuring 1 Bigha 2 Kathas covered by Dag No. g0 of K.P.Patta No. 170 of Village Titkuchi (Salmara), Mouza- Karara, p.O. Bezera,

SN.4J

Presiding DRT,

o.A. 13812022/DRT-Guweh.ii

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P.s. Baihata chariari, District- Kamrup (Rurar), Assam- 7g1121 in the name of the defendant No. 3 and bounded by _ North: Land of Dag No. 7g; South: Land of Dag No. 40.1 and others, East: Land of Dag No. g1; West Land of Dag No.79, as per Registered sare Deed No.32g dated 21.01.19g2, as described in schedure-c of the oA tiil the amount is rearized in fuil.

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v) The charge of the certificated amount be kept arive on mortgaged property i.e. A plot of rand measuring 3 Kathas 19 Lechas covered by Dag No. 1070 of K.P.Patta No. 78 of vilrage Titkuchi (sarmara), Mouza- Karara, p.o. Bezera, P.s. Baihata chariari, District- Kamrup (Rurar), Assam- 7g1121 in the name of the defendants No. 2, 4, 5 & 6 and bounded by - North: Jagat Das; south: Madan Sarma; East: Kiran Deka & Road; West: Kiran Deka, as per Registered Sale Deed No. s882 dated 29.07.1967, as described in scheduleD of the OA till the amount is realized in full.

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

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

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viii) The applicant bank is entitled to the costs of the o.A. which includes the advocate fees of the applicant bank. Applicant is directed to file the cost memo within 2 weeks from today.

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ix) lssue Recovery Certificate accordingly for a sum of Rs. 62,51,469.46 (Rupees Sixty Two Lacs Fifty One Thousand Four Hundred Sixty Nine and paise Forty Six) only in favour of the applicant bank. against the defendant No. 1,2, 3,4, 5 & 6.

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x) Communicate copy of this order to the concerned parties.

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This order is dictated and corrected by the undersigned.

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Judgment dated 8th September' 2023, signed and pronounced in the Tribunal 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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Slard^o^4.h( 1srri,^snarafl Sf,ffi Presiding Offiber DRT, Guwahati.

Punjab National Bank v. Kiran Agro

Case brief

What is this about?

What did the court decide?

Punjab National Bank v. Kiran Agro

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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