In an ex-parte order, the Debt Recovery Tribunal allowed the bank's application under Section 19 of the DRBFI Act, holding the defendants jointly liable and directing the issue of a Recovery Certificate.
Issued Recovery Certificate for Rs. 58,16,923.00 with interest; retained charge on mortgaged property.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
I
o_A. 145,r2022lDRr€rrmhati
IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI
(North Eastern Region)
( r nbunar of Assam, Nagarand. Megharaya Manipur, Mizoram, Arunachar pradesh & Tnpura) Before Shri Shiv Sharan Dubev. presidino Officer
O.A. No. 't4s/2022
ln the matter of -
Canara Bank Jorhat Branch, Posl Box No.61..117l1.18. Garali, Jorhat-785 OO.t, Distric! Jorhat, Assam
..........Appticant
Vs. l. M/s Maa Lakshmi Stationerv A.T.Road, Kenduguri, Jorhat-785 010, District- Jorhat, Assam.
Defendants
Presonce of the Coungel :
For the Applicant : Mr Akhtarparvez, Mr Sanjit Singha, Mr. Dipanka Gogoi, Mr. Bidul Roy, Advocates For the Defendants : None (Ex_parte)
Dated : 25.07.2023
JUDGMENT
This is an application under section 19 of the Recovery of Oebts Due to Banks and Financial lnstitutions Act, 1993 filed by the Canara Bank, Jorhat Branch. post Box No.61, 112t118, Galali, Jorhat_785 OO1, Oistrict_ Jorhat, Assam, with a prayer to issue Recovery Certificate for the sum of Rs. 58,16,923.00 (Rupees Fifty Eight Lacs Sixteen Thousand Nine Hundred Twenty Threo) only as on 09.04.2022 against the defendants with pendentelite and future interest at the 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.
The Defendant No.1 M/s Maa Lakshmi Stationery is a proprietorship concern of the defendant No.2 smt. Deeptimoyee Mahanta. The defendant No.1 had avaired credit facilities from the appticant bank and have failed to pay the same back to the applicant bank in terms of covenants. The defendant No.3 Sri Oeepanjal Bora stood guarantor to the loan availed by the defendant No..l.
Based upon loan application made by the defendant No.1, the competent authod9 of the applicant bank had sanctioned Overall timit of Rs..lO,1O,OOOi- (Rupees Ten Lacs Ten Thousand) onry to the defendants vide sanction retter dated 27-1o-2o,r7 The defendants had availed the sanctioned loan by opening and operating Cash Credit Account No. 11S426i010406 and Term Loan Account No. ,1154768000077 [i.e., Rs.10.00 Lacs onry as cash credit rimit vide Loan Account No.1154261010406 and Rs.10,000/- only as Term Loan vide Term oan Account No. 11547680000771. As per the sanction letter dated 27-10- 2017, the appricabre rate of interest for the sanctioned Cash Credit limit was rixed at MCLR+1.55% i.e., 9.gS% p.m. with monthty rests and the rate of interest for the sanctioned Term Loan was fixed at MCLR+1.1S%, i.e., 9.4S% p.a. with monthly rests. The sanctioned loan was covered under CGSSI Guarantee Coverage. The defendant No.2 being proprietor of defendant No.,l had accepted all the terms and conditions of sanction by putting her srgnatures on the foot of the sanclion letter dated 27-10-2017. rt is preaded by the appricant that the Term Loan account being No. 1'154768000077 has now been closed and as such ihe applicant bank has no claim against the said Term Loan.
ln order to avail the sanctioned Cash Credit (CC) Loan of Rs. 1O.OO Lacs only, on 27-'10-2017 itsef the defendant No.2 being proprietor of defendant No..r had executed Pronote for Rs.,0.00 Lacs only, Cash Credit Agreement, Undertaking Letter, and Letter of Undertaking/Consent. The defendant No.2 being proprietor o, defendant No.,l had also executed retter dated 27-10-20'17 being Request for over Dran facirities and Agreement cum Deed of Hypothecation daled 2l_10_2017 interalia agreeing to the terms and conditions mentioned therein.
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OA 14s/2o22lDRT-Guwahali
Subsequently, considering the defendant's application, the competent authority of the applicant bank had enhanced the existing CC limlt of the defendanls from Rs.10.00 Lacs only to Rs.40.00 Lacs only vide Sanction Memorandum dated 10-05-2018. Asper the sanction Memorandum dated 10-05-2018 the applicable rate of interest for the enhanced limit was fixed at 10.600/op.a. with monthly rests. The primary security for the enhanced limit was Hypothecation of stock in trade. The enhanced limit was collaterally secured by equitable mortgage of immovable property owned by defendant No.3. The defendants had accepted all the terms and conditions of sanction by putting their signatures on lhe foot of the Sanction Memorandum dated'10-05-2018. Further the defendant No.2 being proprietor of defendani No.1 had executed Acknowledgement of Oebt and Security dated 10-05-2018 interalia admitting her debts and liabilities towards the applicant bank.
After enhancement of the existing CC limit from Rs.,lO.OO Lacs only to Rs.40.00 Lacs only, on 11-05-20.18 the defendant No.2 being proprietor of defendant No.l had executed Pronote for Rs.30.00 Lacs only, Letter of Renewal, Link Letter and supplementar Agreemenr (NF 718) interaria agreeing to the terms and conditions mentioned therein.
ln order to secure the loan availed by the defendannt No.1, the defendant No.3 Sri Deepanial Bora had extended his guarantee by executing Guarantee Covering Letter and cuarantee Agreement both dated 11_OS_2OlB.
Vide Sanction Memorandum dated 27-06_2019 the applicant bank had renewed the CC loan account of the defendants which has duly been acknowledged by the defendants by putting their signatures on the foot of the sanction memorandum. The defendant No.2 being proprietor of defendant No.1 further had executed Letter of Renewaldated 27-06-2019 and Acknowledgement of Debl & Security dated 27_06_2019 interalia admitting their debts and liabilities towards the applicant bank. The defendant No.3 also had executed Guarantee Contd. Letter dated 27_06_ 2019.
The applicant bank had further renewed the CC loan acmunt of the defendants vide Sanction MemoEndum dated 21-09_2020 and the defendants had acknowledged the same by putting rheir signatures on the foot of rhe sanction memorandum. The
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defendant No.2 being proprietor of defendant No.i had further executed Letler of Renewal dated 21-O9-2O2O and Acknowledgement of Oebt and Security dated 21-09-2020 rnteraria admitting her debts and riabirities towards the appricant bank. The defendants further had executed Link Letter dated 21 -Og_2020.
rt is stated by the appricant bank that in order to suppod the defendants from the effect of COVTD-1g pandemic, as per policy of the bank, the appticant bank had sanctioned a sum of Rs. 2,0'r,'rggr' (Rupees Two Lacs one Thousand one Hundred Eighty Three) onry to the defendants on o r-09-2020 and the defendants had avaired rhis limit by opening and operation CFITL Account No. .t15471OOOOO41 with the appticant bank.
Subsequenfly, vide Loan application daled 22_Og-2O2Othe defendant No.2 being proprietor of defendant No.1 had applied for financial assistance for development of its business. Considering the loan application, the competenl authority of the appllcant bank had sanctioned a sum of Rs.g.2g Lacs only to the defendants under Guaranteed Emergency Credit Line (GECL) scheme vide sanction Memorandum dated 23_09-2020 As per the Sanclion Memorandum dated 23_09_2020 the applicable rate of interest for the sanctioned loan was fixed atT.SVo p.a. with monthly rests and lhe primary security for the loan was Hypothecation of tock. The defendant No.2 being proprietor of the defendant No..l had accepted all the terms and conditions of sanction by putting her signatures on the foot of the Sanction Memorandum daled 23_ Og_2020 and had availed the sanctioned roan by opening and operating Loan Account No. 1154755000079.
ln order to avail lhe sanclioned loan, the defendant No.2 being proprietor of defendant No.1 on 23_09-2020 itself had executed pronote for Rs.g.28 Lacs only, Link Letter, Letter of Undertaking, Agreement cum Deed of Hypothecalion and Supplemental Agreement interaria agreeing to the terms and conditions mentioned therein.
rn order to secure the roan avaired by the defendant No.1, the defendant No.3 sri Deepanial Bora had created equitable mortgage of his immovable property being a plot of land measuring 03 Katha covered by Dag No. 2266 of K.p.paua No. 482 of revenue Village - Kotohabaria under Mouza_ Charigaon in Jorhat district, Assam (fully described in the SCHEDULE) in favour of the appticant bank by deposit of tifle deeds. tn
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O A. 145/zo22lDRT'Guwahati
order to create the mortgage,defendant No.3 has executed lefter Evidencing Depositof Title Deeds dated'11-05-2018 interalia depositing the originaltitle deedswith the applicant bank. The defendantNo.3further extended the mortgage by executingDraft of Letter Evidencing Depositof Title Deeds dated 23-09-2020.
The defendants availed thecredit facilityfrom the applicant bank by opening and operating OCC Loan AccountNo. 1 154261010406, CFITL AccountNo. 1154710000041 and GECL AccountNo. 1154755000079with the applicant bank.At the initial stagethe loan accounts wererunning smoothly as the defendants were making regular repayments towardstheir loan accounts. Subsequentlythey started committing default in making repayments towardstheir loanaccountsDue to irregularity committed by the defendant in repaymentof the loanamounts,the loan Accounts have become Non Performing Assets on 31lO3l2O21After declaringthe loanaccounts NPA' the applicant bank served Section13(2) SARFAESI Notice dated0210412021 upon thedefendants and asked themto paythe entire debtswithin a period of 60 daysfrom the date of receipt of the notice.However,the defendantshave failed to pay any heed to the applicant bank'sdemand.On 30.04.2021,the applicant bank has also served demand notice upon thedefendants.
The applicant bank thusbecame constrainedto lile the presentOriginal Application for lhe recovery ofRs. 58,16,923.00(RupeesFifty Eight Lacs Sixteen Thousand NineHundredTwentyThree)onlyasonog.o4.2022alongwithinterestandcostofthe application.
After filing ofthe OAthe Tribunal issued notices upon the defendants through registeredpost and the applicant bank filed service reporton 06'062022 and brought on record lhepostal receipts alongwith track consignment report lt is observedthat the summonshavenot been served uponthe defendantsThereafterthe Tribunal orderedpaper publicationof notice upon the defendantsand theapplicantbank issuednoticestothedefendantson16'06.2022throughPaperPublicationintwo newspapersnamely "The Timesof tndia" and"Dainik Asom".Evenafter issuance ofnotices upon the defendants through paper publication also there was no
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0.A. 145,2022lDRl€uvahati
representation on behalf of the defendants either by the counsel or lhe person and hence the defendants were made set ex-parte on 0g.08.2022 and their right lo ,ile written statement cum evidence on affidavit was crosed and the matter was posted for hearing on behalf of the applicant bank.
Suppoding the claim of the applicant bank Mr. Rajeev prasad, Manager of the Applicant Bank has fired evidence on affidavit coupred wior the security documents marked as Exhibit AW-.1/1 to AW_1/rt4 supporting the ctaim of the applicant bank.
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 exhibils.
Considering the facts and circumstances of the case, I am of the considered view that the documents ,iled by the applicant bank are supporting the claim of the applicant bank and establishing the liabitity of the defendants. lt is proved that the defendants are riabre to pay to the appricant bank the craim made in the originar Application. The loans were obtained and documents have been executed on 27.10.2012, i1.05.2018, 2,t.Og.2o2O & 23.0g.2020. The accounts became NpA on 31.03.2021 and the OA has been filed on ZO.O4.2OZ2. Hence, the OA is filed wetl within the period of limitation and this Tribunal having a jurisdiction to adjudicate the Originat Application.
Considering the unchallenged/unrebutted version of Mr. Rajeev prasad, the applicant's witness and all lhe documents marked as exhibits, including duly certiried 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 lhat the applicant is enti ed to get the Recovery Certiricate as prayed for.
ln the resurt, the present originar Apprication No. 14s of 2022 is alowed with cost as under :-
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O.A 14512022/oRT-Gwahan
(l^.u !-{ ana- D.*L'-1 )s l r)a )2 I (Shiv Sharan DubeYl '- u Presiding Officer DRT, Guwahati.
2 issues framed by the court
Whether the Debt Recovery Tribunal has jurisdiction to pass an order under Section 19 of the DRBFI Act when the loan accounts became NPA.
Whether the evidence and documents submitted by the bank sufficiently establish the liability of the defendants for the claimed amount.
1 provisions across 1 enactments
Canara Bank Jorhat Branch
M/s Maa Lakshmi Stationery
Deeptimoyee Mahanta
Deepanjali Bora
Shiv Sharan Dubey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
