Allowed

Bank of Baroda v. M/s Gopal Chandra Paul

DRT14 Sept 2023OA/17/2022

Case brief

AI extract

What is this about?

In this application under Section 19 of the RDBFI Act, 1993, the Tribunal upheld the bank’s claim for a Recovery Certificate. The court affirmed liability based on executed security documents and the account’s NPA status, finding the application timely and supported by evidence.

What did the court decide?

Issued Recovery Certificate for Rs. 27,88,534.49 with pending and future interest at 11.40% p.a. from 01.01.2021 till realization along with costs.

Bank of Baroda versus M/s Gopal Chandra Paul — Contract and Commercial Disputes | DRT (2023)

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oA 122022lDRT-GMhati

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IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

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(North Eastern Region)

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{Tribunal^{ofAssam, Nagatand, Meghataya, Manipur,} tVtizoram, Arunachal^pradesh & Tripura) Befors Shri Shiv Sharan Dubev.^presidino Office,

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O.A. No.^,17 t2022

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ln the matter of -

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Bank of Baroda, Silchar Branch Shillongpatty, SP Mukherjee Road, PIN- 788001, Cachar, Assam.

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..Applicant

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Vs.

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l. M/s Gopal Chandra Paul Falak Bazar, Kalibari Road, Opp- M/s Sriram Bhandar, Silchar-788001, Dist- Cachar, Assam.

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Gopal Ch Paul Son of Sukhlal Paul Resident of Shib Colony, Krishna Nagar, Silchar, District-Cachar, PIN- 788005.

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Sukhlal Paul

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Son of Late Saday Paul Saratpally, Lane No. 3/1, Silchar, Cachar, Assam-788006.

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Srikanta Paul

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Son of Late Sridam Chandra Paul Shiv Colony, Ward No.20, Silchar, Assam-788005.

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Defendants

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Presence of the Counsel:

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For the Applicant : Sri Mrinmoy Dutta, Advocate

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For the Defendants No. 1 & 2 : Ms^puja Chakraborty, Advocate (Right to file WS cum EA ctosed)

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For the Oefendants No. 3 & 4 : None (Exparte).

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Dated :'14.09.2023

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JUDGMENT

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This is an application under section 19 of the Recovery of Debts Due to Banks and Financial lnstitutions Act, 1993 filed by the Bank of Baroda, Silchar Branch, Shillongpatty, SP Mukheriee Road, plN- 78gOO1, Cachar, Assam, with a prayer to

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sLi,r slnaa.^eqlu,* DRT, Gowahatl "^n[!1⁴⁰

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O A¹ 7/2022lDRT-G!*.heti

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issue Recovery Certificate for the sum of Rs. 27,88,534.49^{(RupegsTwsnty-Soven} Lakhs Eighty-Eight Thousand Five Hundred Thirty-Four and Paisa Forty-Nino) only as on 31.10.202'l against the defendants with^pendentelite and future interest thereon at contractual tale ttom 01.'l.1.2021 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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On^'17-10-2012 the erstwhile Dena Bank (now Bank of Baroda), Silchar Branch, sanctioned Cash Credit Limit of Rs 15 lakhs to the defendants No. I and 2 on the terms and condition, that the rate of interest would be BSR+6.55o/o -17.O0o/o (Subject to change in aSR), with the loan being secured by Primary Security of Hypothecation of entire stock of Jaggery & Grocery items etc. Collaleral Security of equitable mortgage of land and building of Srikanta Paul. and Lien on SDR of Rs.'1.00 lakh in the name of Gopal Ch Paul. Further, panel interest of 2% was to be charged in case of cerlain contingencies including delayed paymenunon-payment of interesuloan.

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On^'17-10-2012 the defendants executed the following documents binding

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themselves to repay the dues of the bank: -

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A) DP note

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B) Agreement of hypothecation of book Debts and other movable assets C) Letter of continuity.

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D) Letter of Linkage

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E) Letter of Guarantee by Srikanta Paul.

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F) Letter of General Lien and Set off by borrower.

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G) Letter of General Lien and Set off by guarantors.

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H) Confirmation of guarantee by guarantor.

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l) Letter of consent for Disclosure by the Borrower

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J) Letter of consent for Disclosure by the Guarantor.

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K) Undertaking by the Borrower

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L) Undertaking by the guarantor

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The Defendants also executed the following documents for creation of

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equitable mortgage of land and building in the name of the guarantor Sri Srikanta

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Paul.

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a) Lefter dated 17.10.2012 for deposit of documents for creation of Equitable mortgage.

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b) Letter to Srikanta Paul from Bank dated 18-10-2012 regarding creation of equitable mortgage

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The said property was subsequently replaced by the properties of the

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w DRT, Guwahali

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O.A 17/202ZDRT60.h.li

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defendantNo3in2olEandhencethe|anddocumentsofthemortgagorsriSrikanta Paulwere returned.

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On 29-07-2017^{the Cash Credit Limitto the defendant No 1 was enhancedto} Rs. 23.00 lacs^{interalia on the terms and conditionswith the Rate oI lnterest at} MCLR^{+2.80%-11.40% (Subjectto changein MCLR),secured with Primary Security} of Hypothecation^{of enlire stockincludingstore and godown' Collateral Security by} creation of^{Equitable mortgageof land at lane No 3/1 SaratpallySilchar and Deposit} ofsDRofRsl.3glakhsandlLakhandbothareadiusted'FurtherPanelinterest wastobechargedincaseofcertaincontingenciesincludingdelayedpaymenunon.

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payment of interesuloan.

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The defendants executed^{the following documents on 29-O7'2017'}

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A) 'gi DP Note Agreement^{ot nypothecation of goods, book debts and other movable} Assets. C) Letter of^Conlinuity

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D) Letter of^guarantee.

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E) General Undertaking

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F) Letter of Lien and^{Set otf by Borrower'} G) Letter^{of Lien and Set off by Guarantor' Srikanta Paul'}

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H) Letter of^Linkage. - l) Letter of consent^{tor Disclosure by Borrower} - il i"it'"i oi "o""""t for Disclosure^{by Guarantor'Srikanta Paul'}

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The^{properties of Sri Srikanta Paul were mortgagedand accordinglythe}

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following^{documentswere executed.}

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A) lrrevocable^{Power of Attorneyd aled 28'072017.} . ^ ^ ^- gi ;;;;;i;; i"r.spect of^{equitablemortsase dated 28.07 2017} 6i L"iL, oia"p".it^{of documents for creation of equitable mortgage dated} 29.07.2021.

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On 30-07-2017^{a memorandumof entry for extension of mortgagewas}

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prepared with regard^{to the propertiesof Srikanta Paul'}

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The applicant^{bank further pleaded that the propertyof Sri SrikantaPaulwas} subsequently^{replacedby the propertiesof the defendant No 3 and hencethe land} documents^{of the mortgagor Sri SrikantaPaul were returned A Note on replacement} of the mortgaged^{property in respectof the account of G C Paul dated 19-05-18 was}

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stirlq6|"1"1 J Presding Offc6r ' DRT, Guwahali

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O.A. 1 7/2o22lDRT.Gurih.ti

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prepared allowing replacement of the property of Srikanta Paul by the properties of

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Sukhlal Paul.

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Accordingly, the defendant No 3 offered his properties for creation of equitable mortgage and for such purpose deposited the land documents of the schedule properties and also executed the documents at serial no A to K:

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A) Sale deed dared 30-12-80

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B) Sale deed dated 25-02-81

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C) Sale deed dated 23-02-82

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D) Sale deed dated 30-08-01

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E) NEC dated 28-03-16

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F) Provisional certificate regarding class and status of land dated 28_10_2010.

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G) Provisional Land Mutation and Occupation Certificate

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H) Revenue receipt dated 01-12-2015

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l) Letter of Deposit of documents for creation of mortgage dated 19- O5-1g. J) Declaration regarding the creation of equitable mortgage by deposit of Title deeds dated^'19-05-18

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K) lrrevocable General Power of Attorney dated 19-0S-,18

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Accordingly, a Memorandum of Entry dated 21-OS-j8 was prepared along

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with a letter of confirmation of mortgage dated 21-05-18.

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Vide Letter of acknowledgement of Debt by Borrower and /or Guarantor dated 30-03-19, the defendant No 2, the borrower and the defendant No 4 the guarantor acknowledged the debt.

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The bank addressed several letters to the borrowers and the^guarantors to regularize the account, including letters to renew the accommodation, on 1 4.0s.201 9, 03.06.201 9,3. 1 1.201 9, 1 9.¹ 1.20 1 9, 1.1.2020, 17.1 1.2020',to.01.2021, 04.03.2021. However, these letters failed to^yield any result.

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The defendants had availed the said loan facility, from the applicant bank but have not paid the outstanding amount as^per terms and condition made with the applicant bank in spite of repeated demands and request by the^{applicantbank. Hence the loan} accounts became NPA on 31.03.2021. After the account became NPA the applicant bank issued nolices for repayment of the due amount, but the defendants have neither chosen for repayment of the loan amount nor approached to the applicant bank for renewal of the loan account.

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The applicant bank thus became constrained to file the^present Original Application for the recovery of Rs. 27,88,534.49^(Rupees Twenty-Seven Lakb Eighty-

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-tl'urs-[flS4"&f Presiding Ofiber DRT, Guwahati

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o.A. 17zo22lDRT'Guwahali

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Eight Thousand^{Five HundredThirty'Four and Paba Forty-Nine)only as on} 31 .10.2021 along^{withinterest and coslof the application'}

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After filing of the^{OAthe Tribunalissuednotices uponthe defendants through} registered^post and^{theapplicant bank filed service report on13 05 2022 and brought} on record the^{postal receipts along with trackconsignment reportOn the same day ie'} on'13.05.2022^{Ld. CounselMs Puja Chakrabarty has appeared by filing vakalatnama} onbehalfofallthedefendantsNo'1&2andsoughttimeforfilingVakalatnamaon behalfofdefendantNo.3&4andwrittenstatementcumevidenceonaffidavitwhich was duly^{permifted. Thereafterthe case was listed on several occasions ieon} 27.05.2022. 10.06.2022,^{29.06.2022 & 18.07'2022, but theVakalatnamaon behalf of} defendantNo.3&4andwrittenstatementcumevidenceonaff]davithasnotbeen'iled by the learned^{counselfor the defendantsMoreover, on 13 05'2022the learned} counsel for^{the applicant bank has filed service reportand brought on recordthe postal} receipts along^{with track consignment report which showsthat the service is completed} upon the defendant^{No. 3 & 4. Hence the right of the defendants No 1'2'3& 4 to file the} written statement^{cum evidenc€ on affidavitwas closed on 1a'07 2022 and Thereafter} the matter^was Posted^{for hearing.}

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Supporting^{the claim of the appticant bank Sri AbhijitSarkar' Senior Manager} of the Applicant^{Bank has filed evidenceon affidavit coupledwith the securitydocuments} marked as^{Exhibit N1to A,/61, supporting the claimof the applicantbank'}

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Heard the learned^{counsellor the applicant bank who prayedfor issuanceof} Recovery Certificate^{againstthe defendants as perpleadings madein the Application'} supported^{by evidence on affidavitof their witnesswho aftirmedon oath the execution} of the security^{and other documents by the defendants and also execulionof their own} documents^{relied upon, which have been markedexhibits'}

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Considering^{the facts and circumstances of the case' I am of the considered} view that the^{documentsfiledby the applicant bankare supportingtheclaimof the} applicant bank^{and establishingtheIiability of the defendants lt is proved that ihe} defendants are^{liable to pay to the applicantbank the claimmadein the} Original Application.^{The loan was obtained and documents have been executedon}

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iY-WU ORT, Guwahati

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o A 17|20220RT-Guwahat

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'17 .1o.2012, 28.07.2017, 29.o7.2017 , 30.07 .2017 , 2'1.o5.2018. Vide Letter^of Acknowledgment of Debt by^{borrower and/or guarantor dated30.03.20'19, the} defendant No. 2, the borrower and^{the defendantNo. 4 the guarantoracknowledged} the debt. Moreover, after^perusing the^{documents on recold and takinginto} consideration of the facls and^{circumstancesof the case, I lind that the mortgagehas} been created by the defendant^{No.3where the limitationavailableis for 12 years andas} such taking into account of^{the creation of the mortgagethe application appears to have} been tiled \€llwithin the^period of limitation.^{The accounl becameNPAon 31.03.2021} and the OA has been tiled on 19.01.2022.^{Hence, the OA is filed well withinthe period} of limitation and this^{Tribunal having} a^{jurisdiction to adjudicatethe Original} Application.

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Considering the unchallenged/^{unrebuttedversion} of^{Sri Abhijit Sarkar, the} applicant's witness and all the documents^{marked as exhibits,includingduly certitied} copy of the statement of account along^{with interest calculation sheet maintainedby} the applicant Bank in it's regular course of^{business,I hold that the applicantis entitled} to get the Recovery Certificate as^{prayed for.}

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ln the result, the^present Original Application^{No. 17} of^{2022is allowed with} cost as under: -

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i) The defendants No. 1, 2, 3 & 4 are^jointly and severally^liable to^pay to^the applicant bank a sum of Rs. 27,88,534.49^{(RupeesTwenty€evenLakhs} Eighty-Eight Thousand Fivs Hundred^{Thirty-Fou,and PaisaForty-Nine)} only with^pendentelite and future^interest @11.40%^{p.a. with monthlyrests} lrcm 01.1'1.2021 till the date of full^{paymenurealization} and also cost of the application.

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ii) The charge of the certmcated amount be kept alive on^{mortgaged propertyi.e.} All that piece and^parcel of Land measuring 5 Kathas 11 Chhataks 10 Gondas comprising of 4 Kathas 11 Chhataks¹⁰ Gondas^{covered by Dag no 199of 2d} RS 75 and Land measuring o'l Katha in Dag 198 of 2nd^{RS PattaNo.} 79^pertaining to Mouza Kanakpur Part-1 of Porgana^{Barakparin the District of}

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sl"',Yjrff'Y? DRT, Guwahali

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. ':

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oA l7l2o22lDRl€uwahlti

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Cachar, Assam^{in the nameof SukhlalPaul bounded and buttedby the} following boundaries:^{North: Lane32 Saratpally;South:Lane3/1' Saratpally:} East: Land of Sri^{RanjitDebnath; West: Landof Sri Sasanka Dey'as} described in^{Schedule-Aof the OAtill the amount is realizedin full'}

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iii) The^{charge of the certificatedamounlbe kept alive on hypothecated} properties, as described^{in Schedule-B of the OA till the amount is realizedin} full.

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iv) The applicant^{bank is entitled to proceed against thesecured items towards}

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recovery of^{the debts'}

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The applicant^{bank is also entitledto proceed againstthe personalassets}

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v) and^{propertiesof the defendants towards recovery of the dues'}

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The applicant^{bank is entitledto lhecostsof the O A whichincludes the}

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vi) advocate^{fees of the applicant bank Applicant is directed to file the cost} memo^{within 2 weeks from today'}

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vii)^{lssue Recovery Certilicateaccordinglyfor a sum Rs' 27'88'534'49(Rupees} Twenty-Soven^{Lakhs Eighty-Eight ThousandFive Hundred Thirly-Four} and Paisa^{Forty-Nine)only in favour of the applicantbank againstthe}

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defendants^{No. 1,2,3 & 4'}

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Communicate^{copy of this orderto the concemed parties'}

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This order^{is dictated and correctedby the undersigned'}

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Judgment^{dated'14rhSeptember' 2023' signed and pronouncedin the Tribunal}

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today under^{mY signature'}

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Tribunal's^Websiteand Copy^{of theJudgmenuFinal Order be uploaded in the}

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file be^{consignedto Record Room'}

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st,rstq#T#Bi', (shiv Sharan\DirboY)^! Presiding^Otficer DRT, Guwahati.

Bank of Baroda v. M/s Gopal Chandra Paul

Case brief

What is this about?

What did the court decide?

Bank of Baroda v. M/s Gopal Chandra Paul

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

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