Allowed

Idbi Bank v. Sri Hemonta Teron

DRT12 Sept 2023OA/169/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal allowed an application filed by IDBI Bank Ltd. for issuance of a recovery certificate against two defendants. The court found the defendants jointly and severally liable for an outstanding overdraft facility and confirmed the matter was within the limitation period, directing issuance of the certificate.

What did the court decide?

Issued recovery certificate for Rs. 23,49,735.59 with interest at 12.50% p.a.; charged secured property and personal assets.

Idbi Bank versus Sri Hemonta Teron — Banking and Recovery | DRT (2023)

¶1

O A. 169t2022/DRT-cu/t!hati

¶2

IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

¶3

(North Eastern Region)

¶4

( I nbunal of Assam. Nagatand l\reghataya, Manrpur. M;oram, Arunachat Pradesh I Tripura) Before Shri Shiv Sharan Dubey. iresidinq Officei

¶5

O.A. No. 169/2022

¶6

ln tho matter of -

¶7

lDBl Bank Ltd. Beltola Branch, 16r Floor, 26-Kanishka,

¶8

Dr. B. N. Saikia Road, Wiretess. Dispur, Guwahati-78,1008

¶9

Applcant

¶10

Vs.

¶11

l. Sri Hemonta Teron,

¶12

Proprietor of M/s J. R. EnterDrise. S/o Shri Guna Ram Teron.. RYo Bye lane No. 2, House No. 4/A, S. K. Baruah Road, Rukmini Nagar, Dispur,

¶13

Guwahati- 781006, District - Kainrup(M), Assam.

¶14

Sri Jatin Mahanta, S/o Shri Dhaneswar Mahanta,, R/o House No. 9, Sapta Sahid path, Bye lane No. 2, Sarumatoria.

¶15

cuwahati- 781006, District _ Kamrup(M), Assam.

¶16

Defendants

¶17

Presence of the Counsel :

¶18

For the Applicant : Mr. Gitartha Das, Mr. N. lslam, Ms. A. Singha, Advocates

¶19

For the Defendants

¶20

: Ms. R. Kaushik. Advocale (Right to fite WS cum EA ctosed)

¶21

Dated :12J0912023

¶22

JUDGMENT

¶23

This is an application under section 19 of the Recovery of Oebts Due to Banks and Financial lnstitutions Act, i993 filed bythe tDBt Bank Ltd., Beltola Branch, isr Floor, 26-Kanishka, Dr. B. N. Saikia Road, Wareless, Oispur, Guwahati_ 781008, with a prayer to issue Recovery Certificate for the sum of Rs. 23,49,735.59 (Rupses Twenty-Three Lakhs Fody-Nine Thousand Seven Hundred Thirty_Five and paisa Fifty-Nine) only as on 01.04.2022 against the defendants with pendenterite interest at the contractual rate till realization, along with cost and other relief.

¶24

gltiuo Sl.aa^a A,L

¶25

er""i.,rg Omf?f€l4 t DRT. Guwahati

¶26

¶27

o.a. 169/2o2zDRT€uw.h.ti

¶28

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

¶29

The defendant no.1 Sri Hemonta Teron is the proprietor of M/s J.R. Enterprise who availed overdraft facility of Rs 35.OO lakhs from the applicant. The loan was taken for working capital assistance of the borrower under propeny power product. The defendant no.2 secured the loan by creating equitabte mortgage of his land property. Furthermore, both the defendants stood as guarantors in connection with the said facility. The defendants have failed to discharge lheir liability arising out of the roan agreements which they have entered into with the Applicant Bank. As such the present application is filed for recovery of the outstanding balance from the defendants plus interest, costs, other expenses etc in connection therewith.

¶30

Pursuant to an application for loan dated 15.12.14 by the defendant no..l, the Applicant after considering his request sanction overdraft facility of Rs 3S.OO Lakhs only vide sanction letter dated^.17.12.14, subject to acceptance of the terms and conditions set forth therein by the defendants. As per the said sanction lefter for the overdraft facility the defendants are required to pay interest @ BBR +225 bps p.a. i.e.^'12.507o (BBR was 10.250lo p.a. at that relevant time) at monthly rest. The said facility is repayable on appticant,s demand. The defendants accepted the terms and conditions ofthe said sanction letter j7.12.2014 by duly signing and returning the duplicate copy of the said sanction letter.

¶31

ln order to avail ihe overdraft facility of Rs. 3S.OO Lakes, the defandants execuled the following loan & security documents_

¶32

a. Facifity Agreement dated 22.12.2014 executed by defendant no.l whereby he promised to pay to the applicant Bank a sum Rupees Thirty Five Lakhs only with interest on demand etc.

¶33

b. Hypothecation -cum- Loan Agreement daled 22.1|2.20,14. The defendant no.1 also agreed to hypothecate all tangible movable machineries and plants etc. The borrower also agreed to hypothecate all tangible movable property, assets and S\nt^{gotott&.'<Lu'r} ';;^"6&1611a I

¶34

ORT, Guu/.hali

¶35

¶36

O.A 159/2022lDRT€uwahati

¶37

stocks both present and future etc. more specifically described in Schedule A of the OA.

¶38

C. Guarantee Agreement dated 22.12.2014 executed by defendant no. I inter-alia making himself ioinfly and severally liable to the Appticant for lhe repayment the said loan amounl with interest.

¶39

d. undertaking to be furnished by the personar cuaranror dated 22.12.2014 execuled by defendant no.^.1.

¶40

e. Guarantee Agreement dated 22.,12.2014 executed by defendant no. 2 lnter-alia making himself joinfly and severally liable to the Appticant for the repayment of the said loan amount with interest.

¶41

f. undertaking to be furnished by the personar Guarantor dated 22.12.2014 execuled by defendant no. 2.

¶42

g. Undertaking- cum - Affldavit dated 22.12.20,14 executed by the defendant no. I whereby he authorized the bank lo collect proceeds of Book Debts direclly. The said defendant atso affirmed that no titigation is pending against him etc.

¶43

h. Declaration and Undertaking dated 22.12.20,14 executed by the defendant no. 2 that the immovable properties mortgaged with the Applicant is free from all encumbrances or charges etc.

¶44

i. Undertaking for fulfillment the shortcomings/rectification dated 22.12.2014 executed by the defendants.

¶45

The defendant no.2 secured ihe overdraft facility of Rs 3S.OO Lakhs by creating equitable mortgage of his tanded property measuring 1 Katha (2.68 Are) covered by Dag No. 65n 57(O)/53i (N), K.p. patta No_ 3ti106 (O)/540(N) situated at Revenue Village Sarumotoria, Mouza-Beltola, District- Kamrup(M), Assam mora specifically described in schedure B of the oA by depositing tifle documents with the applicant bank.

¶46

The defendants had availed the loan facility from the applicant bank

¶47

A,/,t ty DRT, Guwahali

¶48

¶49

o.A. 169/20?2./DRr€u\r.h.li

¶50

not paid the outstanding amount as per terms and condition made with the applicant bank in spite of repeated demands and request by the applicant bank, hence the said loan accounls became NPA on 31.'12.2021. After the account became NpA the applicant bank issued notices for repayment of the due amount, but the defendants failed to repay the loan amount or renew the loan account.

¶51

The applicant bank thus became constrained to file the present Original Application for the recovery of Rs. 23,49,795.59 (Rupeos Twenty-Three Lakh3 FortyNine Thousand Ssven Hundred Thirty-Fivo aod paisa Fifty-Nin€) only as on O'1.U.2022 along with interest and mst of the application.

¶52

After fling of the OA the Tribunal issued notices upon the defendants through registered post and the applicant bank filed service report on 19.07.2022 and brought on record the postal receipts along with track consignment report which shows that notice has not been served upon the defendants. Thereafter the Tribunal ordered paper publication of notice upon the defendants and the applicant bank issued notice to the defendants on 24.09.2022 through paper publication in two newspapers namely "Times of lndia^,' and^.Dainik Akham". On 19j02022 Ld. Counset Smt. R. Kaushik has appeared by filing vakalatnama and sought time for ,iling wriften statement cum evidence on affidavit. Thereafter lhe case was listed on several occasions i.e. on 23.1i.2022, 09]12.2022, 26.,t2.2O22, 1O.O,t.ZO23, but the written slatement cum evidence on affidavit has not been filed by the learned counsel for the defendanrs. Hence the right of the defendants ro fire the written statement cum evidence on afndavit was closed on 02.02.2023 and Thereafter the matter was posted for hearing.

¶53

Supporting the claim of the applicant bank Mrs. Kabita Devi, Assistant Generat Manager of the Appricant Bank has tiled evidence on aftidavit mupled with the security documents marked as Exhibit AW-1/1 to AW_1/30A, supporting the ctaim of the applicanl bank.

¶54

Heard the learned counsel for the applicant bank who prayed for issuance of

¶55

skrrrtl6B# Presidlng Ofltcer I^,l_r\r DRT. Guwahati

¶56

¶57

o.a. t69zo22lDRT€umhiri

¶58

Recovery Certificate against the defendants as per pleadings made in the Application, supported by evidence on affidavit of their witness who affirmed on oath lhe execution of the security and other documents by the defendants and also execution of lheir own documents relied upon, which have been marked exhibits.

¶59

Considering the facts and circumstances of the case, I am of the considered view that the documents ,iled by the applicant bank are supporling the claim of the applicant bank and establishing the liabitity of the defendants. tt is proved that the defendants are^jointly and severally liable to pay to the applicant bank the claim made in the Original Application. The loan was obtained and documents have been executed on 22.'12.2014 & 23.'12. 20'14. Moreover, afrer perusing the doc1jments on record and taking into consideration of the facts and circumstances of the case, I tind that the mortgage has been created by the defendant No.2 where the limitation available is for 12 years and as such taking into account of the creation of the mortgage the application appears to have been filed well within the period of limitation. The account became NpA on 31.12.2021 and the OA has been filed on 12.05.2022. Hence, the OA is filed well within the period of limitation and this Tribunal having a jurisdiction to adjudicate the Original Application.

¶60

Considering the unrebutted/unchallenged version of by Mrs. Kabita Oevi, the applicanl's witness and all the documents ma*ed as exhibits, including duly cedified copy of the stalement of account along with interest calculation sheet maintained by the applicant Bank in it's regular course of business, I hotd that the applicant is entilled to get the Recovery Certificate as prayed for.

¶61

ln the result, the present Original Application No. 169 of 2022 is allowed with cost as under:-

¶62

i) The defendants No. 1 & 2 are join y and severally liable to pay to the applicant bank a sum of Rs.23,49,735.59 (Rupees Twenty-Thres Lakhs Forty-Nine Thousand Seven Hundred Thirty-Five and paba Fifty-Nine) only with pendentelite and future inlerest @12.50% p.a. with monthly rests

¶63

S!^AsNp^"h,^+ ,-,0"n*B1oT1?9 U DRT, G'rv.ahati

¶64

¶65

6.A. 169t2o22/DRT€rMh.ti

¶66

itom O2.U.2022 till the date of full paymenurealization and atso cost of the application.

¶67

ii) The charge of the certiticated amount be kepl alive on hypothacated properties, as described in Schedule-A of the OA till the amount is realized in full.

¶68

iiD The charge of the certificated amount be kept alive on mortgaged property i.e. Landed measuring I Kalha (2.3g Are) with structure thereon covered by Dag No. 65757(0)/531(N), K.p. patta no. 31/106 (oys4o(N) situared at Revenue village- Sarumolia, Mouza- Beltola, District- Kamrup(M), Assam and is bounded by North: Land of Dusmanla Dutta, South: Land of Mr. Borthakur, East: Land of Jamuna Saikia, West: Road, as described in Schedule_B of the OA till the amount is realized in full.

¶69

iv) The applicant bank is entifled to proceed against the secured items towards

¶70

recovory of the debts.

¶71

v) The applicant bank is also entifled to proceed against the personalasseb and properties ofthe defendants lowards recovery of the dues.

¶72

v0 The applicant bank is entifled to the costs of the O.A. which includes the

¶73

advocate fees of the appricant bank. Appricant is directed to fira the cost memo within 2 weeks from today.

¶74

yii) lssue Recovery Certificate accordingly for a sum Rs. 23,,f9,735.S9 (Rup€os

¶75

Twanty-ThreE Lakh3 Forty_Nine Thousand Sovon Hundred Thlrty.Five and^peba Fifty-Nine) only in favour of the applicant bank against the defendants No. 1&2.

¶76

viiD Communicate copy ofthis orderto the concemed parties. This order is dictated and corrected by the undersigned.

¶77

Judgment dated 12h September 2023, signed and pronounced in the Tribunal today under my signature.

¶78

copy of the JudgmenuFinar order be uproaded in the Tribunals website and file be consigned to Record Room.

¶79

s)"ilr

¶80

Presiding Officei DRT, cuwahati.

Idbi Bank v. Sri Hemonta Teron

Case brief

What is this about?

What did the court decide?

Idbi Bank v. Sri Hemonta Teron

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

Coram

Case details

Similar cases

Bank of Baroda versus M/s North East Tubes and Pipes

Ram Ekbal Sah versus Canara Bank

Yes Bank versus Bhanu Pratap Singh

Hdfc Bank versus M/S Aadinath Traders

Canara Bank (Syndicate Bank) versus M/S N. S. Prints

Punjab National Bank versus Deepak Mishra