Allowed

Canara Bank v. Mr Bendanganshi

DRT11 Dec 2023OA/188/2022

Case brief

AI extract

What is this about?

The Tribunal allowed the bank's application for a recovery certificate under Section 19 of the RDBFI Act. The court held the loan documents valid, the mortgage within limitation despite the account becoming NPA, and granted recovery of the principal amount with future interest.

What did the court decide?

Issued a Recovery Certificate for Rs. 80,28,388.69 with future interest at 12% p.a. and costs of the application.

Canara Bank versus Mr Bendanganshi — Banking and Recovery | DRT (2023)

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O.A. 18&2o22lDRT{uwahari

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IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

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(North Eastern Region)

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(Tnbunal of Assam, Nagatand, Meghataya, Manipur, Mizoram, Arunachat pradesh & Trapura) Before Shri Shiv Sharan Dubev. presidino Officer

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O.A. No. ,88/2022

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ln the matter of -
CANARA BANK
Dimapur Branch,
First Floor, Near Plaza Bakery,
Nyamo Lotha Road (Church Road)
Dimapur, Nagaland-7971 12.
Appticant
Vs.
I. MR BENDANGANSHI
K. KIRE COLONY, HALF NAGARJAN,
NEAR YIMCHUGNER CHURCH
DIMAPUR.7971 12, NAGALAND
2. MR. LANUCHUBA
C/O SR. AUTOMOBILE ENGINEER,
NAGALAND STATE TMNSPORT
DIMAPUR-797112.

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Defendants

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Presence of tho Counsel:
For the Applicant : Mr. Mukesh Sharma,
Ms. Ellora Bharali, Advocates
For the Defendants : None (Ex-parte)

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Oaled :1111212023

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JUDGMENT

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This is an application under section 19 of the Recovery of Debls Due to Banks and Financial lnstitutions Act, 1993 filed by the Canara Bank, Dimapur Branch, First Floor, Near Plaza Bakery, Nyamo Lotha Road (Church Road), Dimapur, Nagatand_ 797112, wilh a prayer to issue Recovery Certiticate for the sum of Rs. 80,28,388.69 (Rupess Eighty Lakhs Sevonty-Eight Thousand Threo Hundred Eighty-Eight and Paise Sixty-Nine) only as on 30.04.2022 against the defendants with 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.

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The Defendant No.1 is the borrower as well as mongagor lo the Home loan facility availed by Defendant No.^.l and Defendant no. 2 is the Guarantor.

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The Defendant No. t had approached the Applicant Bank and applied for ,inancial assistance by submitting a Loan Application dated O8.,IO.2OO7 for its business and after considering the said Application, lhe Applicant Bank vide its Sanction Memorandum dated 09.10.2007 had sanctioned Home Loan Facility of Rs. 12,00,0001 Lacs (Rupees Twetve Lakhs) only to the Defendant, with interest @^{PLR+1o1o=12yo per annum} compounded monthly subject to changes from time to time as per Banks guidelines. The Home Loan facility is payable on demand. In the event of default, the bank shall also be entifled to charge at its own discretion and the borrower shall be liable to pay such enhanced rate of interest on the said home loan facility. The Defendants had signed on the said Sanction Memorandum, thereby agreeing to the terms and condition laid down therein. A process Note dated 09.10.2007 thereby confirming lhe availing of the loan facility from the applicant bank and also accepted the terms and conditions conlained therein.

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ln connection with lhe sanction of lhe Home Loan of Rs. 12,OO,OOO/(Rupees Twelve Lacs), sanctioned by the Applicant Bank and availed of by the Defendants. But the applicant bank made a parfly payment to the defendanls account by a four nos. of Acknowledgement receipt of Rs. 4,OO,OOO/_ dated 09.10.2007, Acknowledgement receipt of RS.4,5O,OOO/- dated 01.1,1.2007, Acknowledgement receipt of Rs.1,46,0564 dated 17.05.2008, Acknowledgemenl receipt of Rs.2,00,0001 daled 27.02.2008 and House Loan Agreement dated 09.10.2007 has been signed and executed by the Defendant No.^,l and 2 in favour of the Applicant Bank as security for repayment of the loan, thereby agreeing lo all the terms and conditions laid down in lhe said Agreement.

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ln compliance with the terms and conditions of the sanction and in order to assure repayment of the said loan facility with interest, the Defendanl No. t had created mortgage by deposit of Gift deeds and other land documents and delivered

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to the Applicant Bank,s at its Dimapur Branch, all the tiUe deeds in respect of the immovable property (more specifically described in Schedule A of the oA). Further, the defendant no. I and 2 had executed a Gift Oeed Registered No. SD752(Ay06O4lO9t2O06 in favour of the appticant bank, thereby contirming the mortgage as securiry for repayment of the roan facility availed by the defendant no.1.

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ln connection with the sanctioning of the Home Loan facility of Rs. 12.00 Lacs sanctioned by the appricant bank and avaired off by the defendant no.1, Guarantee Agreemenl dated O9..IO.2OO7 was signed and execuled by the defendant no. 2 as Guaranlor, who stood as the personal guarantor to the said loan facility availed by the defendant no.1. The said Guarantee Agreement was duly signed and executed by the defendant no. 2, whereby in her capacity as the personal guarantor had not only confirmed the signing and execution of the Guarantee Agreement dated 09.,lO.2OO7 but atso acknowledged its obligation as the personal guarantor to the loan facility availed by the defendant no. 1.

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The Defendants had availed of the said home loan facility from the Applicant Bank, but have not paid the loan 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 Oefendant No. ,l had confirmed and acknowledged its indebtedness towards the bank by signing and executing Acknowledgement of Debt and Security dated 12.03.2010, OS.03.2O,l3, 18.02.20i6 also confirmed the execution of loan documents and the relative securities in connection with the said loan facility availed of by the Defendants. The Defendant No. I had confirmed and acknowledged its indebtedness towards the bank by signing and executing Acknowredgement of Debt and security dated 11.02.2019 and 30.01.2021 arso confirmed the execution of roan documents and the rerative securities in connection with the said loan facility availed of by the Defendants.

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The defendants had availed the said loan facilities from the applicant bank bul have not paid the oulstanding loan amount as per terms and conditions as

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agreed upon with the applicant^{bank,in spite of repeateddemands and requestby the} applicant bank. As the defendants^{failed to repay the loanamount,the saidloan} accounts became NPA on 08.01.2010.^{After theaccount becameNPAthe applicant} bank issued notices for repayment^{of the due amount,but thedefendants failed to} repay the loan amount.

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The applicant bank^{thus became constrained to ftle the present Original} Application for the^{recovery of Rs'80,78,388'69 (Rupees EightyLakh3Soventy-} Eight Thousand^{Three Hundred Eighty-Eightand Paise Sixty'Nine)only as on} 30.04.2022 along^{with interest and cost of the application.}

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After tiling of the^{OA theTribunal issued notices upon thedefendants through} registered^post and^{the applicant bank filed servicereport on 03.08'2022 and brought} on record the^{postal receipts along with track consignment reportwhich shows that} nolices have not been served^{upon the defendants. Thereafterthe Tribunalordered} paper publication of notice upon the^{defendants and the applicant bank issued notice} to the defendants on^{31.08.2022through Paper Publicationin two newspapers namely} "The Morung Express" and^"The Nagaland Posl'i^{Evenafterissuanceof notice through} paper publication also lhere was no representation^{on behalf of the defendants either} by the counsel or the^{person and hencethe defendants were set ex-parte on 10-02-} 2023 and their right^{to file written statement cum evidenceon affidavitwas closed and} the malter was listed^{for hearing on behalfof the applicant bank.lt is observed from} the record that learned counsel^{Mr.D Talukdar has appearedfor defendant No. 1 & 2} on 02.11.2022 and sought time^{for filingVakalatnamawhich was duly pemitted} Thereafrer the case was listed on several occasions,^{but theleamedcounselfor the} defendants has not filed the^Vakalatnama.

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Supporting the claim of the applicant bank Purtoshi^{A.O., Senior Manager of the} Applicant Bank has flled evidence on affidavit coupled with the security documents marked as Exhibit P, AW-1/1 to AW-120 supporting the claim of the applicant bank.

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Heard lhe leamed counsel for the applicant bank who^prayed for issuance of

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Recovery Certificate against the defendants as per pleadings made in the Application, supported by evidence on affidavit of their witness who afrirmed on oath the execution of the security and other documents by the defendants and arso 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 document filed by the applicant bank are supporting the claim of the applicant bank and establishing the liability of the defendants. lt is proved that the defendants are joinfly and severally tiable to pay to lhe applicant bank the ctaim made in the original Apprication. The roan was obtained and documenls have been executed on 09.10.2007. Acknowtedgement of Debt are dated ,2.03.2010, 05.03.2013, 18.02.2016, 11.02.20,t9 and 30.01.202,t. Moreover, aner perusing the documenb on remrd and laking into consideration of the facls and circumstances of lhe case, I find that the mortgage has been created by the defendant No..l where lhe 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 pedod of limitation. The account became NPA on 08.01.2010 and the OA has been fited on 24.05.2022. Hence, the OA is filed well within the period of limitation and this Tribunat having a jurisdiction to adjudicate the Original Application.

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Considering the unchallenged/unrebutted version of purtoshi A.O., the applicant's witness and allthe documents marked as exhibits, including duly certified copy of the statement of account along with interesl calculation sheet maintained by the applicant Bank in it's regular course of business, I hold that the applicant is enlitled to get the Recovery Certificate as prayed for.

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ln the result, the present Originat Application No. 1Bg of 2022 is allowed with cost as under: -

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(i) The defendants No. 1 & 2 are join y and severally tiable to pay to the applicant bank a sum of Rs. 80,78,388.69 (Rupeos Eighty Lakhs Seventy-

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Eight Thousand Three Hundred Eighty-Eight and paise Sixty_Nine) onty with pendentelite and tuture interest @12% p.a. with monthly rests from 01.05.2022 tifi the date of full payment/realization and also cost of the application.

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The charge of the certificaled amount be kept alive on mortgaged property i.e. all that part and parcel of immovable propedy covered by Oag No. 5571601, bearing patta No.458, situated at Mouza No.3, Nagarian Block, Dimapur fown-797'112, Nagaland; measuring O katha and 1g lechas, bounded by East: by Private property of Mrs. Delhoksie; West: by Approach Road; North: by remaining portion of property owned by Bendangashi; South: by private property of Mr. Rev. Z.yapong Aier, 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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iv) 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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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 to file the cost memo within 2 weeks from today.

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vi) lssue Recovery Certificate accordingty for a sum Rs. 80,78,388.69 (Rupees Eighty Lakhs Seventy-Eight Thousand Three Hundred Eighty-Eight and Paise Sixty-Nine) only in favour of the applicant bank against the defendants No. 1&2.

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vii) Communicate copy of this order to the concerned parlies. This order is dictaled and corrected by the undersigned.

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Judgment dated llh December 2023, signed and pronounced in the Tribunal loday under my signature.

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Copy of the JudgmenuFinal Order be uploaded in the Tribunal's Website and ,ite be consign€d to Record Room.

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Sl.rl '^{g [a.a,:.Q.} tt.12.?1^rL.., r/ (Shiv Shrr.n Duboy) - Prosiding Officer DRT, cuwahati.

Canara Bank v. Mr Bendanganshi

Case brief

What is this about?

What did the court decide?

Canara Bank v. Mr Bendanganshi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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Case details

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