Allowed

Hdfc Bank v. M/S Sree Durga Motor Stores

DRT13 Sept 2023OA/253/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal allowed an application for a recovery certificate. The Bank proved loan documents, guarantees, and mortgages executed by the respondents, which are jointly and severally liable for the default.

What did the court decide?

Issue of recovery certificate for Rs.37,38,230.21 together with interest and costs against the four respondents who are jointly and severally liable.

Hdfc Bank versus M/S Sree Durga Motor Stores — Banking and Recovery | DRT (2023)

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O A. 253/zo2zoRI-Guwahati

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IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

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(North Eastern Region)

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{Tribuna^{ofAssam, Nagaland, Meghalaya, Manipur, Mizoram,Arunachal Pradesh& Tripura)}

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Before Shri Shiv Sharan Dubev. Presidinq Officer

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O.A. No.253/2022

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lnthe matter of-
HOFCBank Limited Barpeta Road Branch, Station Road, Barpeta Road, Barpera, Assam-781315. Applicant
Vs,
1.MtsSree DurgaMotor Stores AProprietorshipfirm Represented byitsPartners (i) Pabitra Kumar Sarkar &⁽ⁱⁱ⁾Jayanti Sarkar Simlaguri, N.H.31,P.O.^BarpetaRoad, District- Barpeta,Assam-781^315.
2.Pabitra Kumar Sarkar Son of Late Keshab Chandra^Sarkar, Resident ofSimlaguri,^N.H.31, P.O. Barpeta Road-781315, District- Barpeta, Assam.
3.Jayanti Sarkar C/oNirmalendu Saha, ResidentofSimlaguri,^N.H.31, P.O. Barpeta Road-781315, District- Barpeta, Assam.
4.PinkuDas SonofPulinDas. ResidentofSimlaguri,^N.H.31, P.O. BarpetaRoad-781 315, District- Barpeta, Assam. Defendants
Presence oftho Counsel^:
FortheApplicant : Mr. Mukesh Sharma, Ms Ellora Bharali,Advocates
FortheDefendants: Mr.A.F.N.U.Mollah, Mr.M.Z Shah, Mr.KZaman,Advocates (Right to file WS cumEAclosed) Dated:13109/2023

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tY"*s^.,tf?

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DRT GLrwahati

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o a 2s3Do22lDRT.Guwahati

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JUDGMENT

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This is an application under^{section 19 of the Recoveryof Oebts Due to} Banks and Financial lnstitutions^{Act, 1993 filed by the HDFC Bank Limited, Batpeta} Road Branch, Station Road,^{Barpeta Road, Barpera, Assam-781315'witha prayer to} issue Re@very Ceriilicate for the^{sum of Rs. 37'38'230.21 p (RupoosThirty} Seven Laca Thirty Eight^{Thousand Two HundredThlrty and PaiseTwentyOne)} only as on 3'l.03.2022 against^{the defendantswith further interest} @180/o^{per annum} from 01.04.2022 till realizaiion^{along with cost and other relief.}

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A few facts^giving rise to^{the present applicationareas under'}

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The defendant^{No.'l is a Partnershipfirm and the defendantNo 2 and 3 are} the Partners of the^{defendant No.1 firm as wellas Guarantors. The defendantNo 4} is also a^{guarantorto the loan facilityavaitedby the defendant No lfirm The} Defendant No.^{3 is themortgagorto theloan facility availed by the defendant No 'l} firm.

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The Defendant^{No.2 and 3 as the Partners of the defendantNo l firm had} approached the^{applicant Bank and appliedfor financial assistance for its business} by submitting a^{loan application daled 01j22014and afterconsideringthe said} application, the^{Applicant BankvideSanctionLetter dated '1001 2015had} sanctionedacashcreditfacilityofRs3O,OO,OOO'OO(RupeesThirtyLacs)onlywith [email protected]%(BaseRate+2'50%)[BaseRate1o.00%)perannumwith monthly rests.^{ln the eventof default in paymentor any irregulaityin accountthe} bank reserved^{the right to charge additional interest @ 11 00% per annum on the} overdue/ delays/^{default of anymonies payableThe Cash Credit loan was} repayable on^{demand. The Defendant No 2 as Partner of Defendant No 1 had} signed on^{the said Sanction Letterthereby agreed to all the terms and condition} mentioned^therein.

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lnconnectionwiththesanctionofthecashcreditfacilityofRS'30,00,000.00 (Rupees Thirty^{Lacs) onlyas aforesaid, the defendanis in orderto availand in order} to secure the^{said loan in favour of the Applicantbank' entered into an Agreement}

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s)".i, e0'arzrA"t'7 lb',1'ry^v Pr€sding fficer DRT. Guwaheti

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OA 2532022|DRT Guwahati

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being Master Facility Agreemenl daled 21.01.2015 with the Applicant Bank, at Barpeta Road. The Oefendant No. 2 as the Partner of the defendant No. I firm had signed and executed the same thereby accepting to the terms and conditions contained therein.

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ln order to secure the repayment of the credit facility, the Defendant No. 2 as the partner of the defendant No.'l firm had executed a Letter of Hypothecation and Power of Attorney for Hypothecated Book Debts both dated 21.0'1.2015, thereby hypothecating by way of first charge all the movable assets of the firm including current assets, stocks, book debts, both present and future and other which are more particularly described in the Schedule - A of this Original Application and also authorizing, nominating, constituting and appointing the Applicant Bank to recover and realize all present and future book debts, receivables owed or becoming owed to defendants in their course of business.

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ln order to further secure the repayment of the said loan with interest, the Defendant No. 2 as the partner of the defendant No.1 firm had also signed and executed a Demand Promissory Note on 21.01.2015, thereby undertaking to pay a sum of Rs.30,00,000.00 (Rupees Thirty Lacs) only with interest due thereon to the Applicant bank on demand. The Defendant No.2 as the partner of the defendant No. 1 firm had also signed and executed a Letter of Continuing Security and an undertaking cum indemnity both dated 21.01.20'15 agreeing thereby that the security shall be a continuing security at all times for the said facility or any other facility obtained and payable to the applicant bank.

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ln consideration of the Applicant bank agreeing to grant the said loan, the Defendants No. 2, 3 and 4 had executed a Letter of Continuing Guarantee dated 2'1.0'1.2015 in favour of the Applicant bank on the terms and conditions contained herein. The said guarantee is a continuing guarantee.

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Further the cash credit facility was secured by creation of equitable mortgaged of the immovable properties of Defendant No.3 being All that piece and parcel of land measuring 14 Lecha covered by Oag No.4 of patta No.S, situated at Jakhlipar under Mouza Howly in the District of Baksa, Assam, more fully described in

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$;tona^& Pn"ll,lnsW'*^Q DRT Guwahali

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o.A. 253/2022lDRr6ur.h5li

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Schedule- B & C of the OA. The Oefendant No. 3 had signed and executed a Declaration cum undertaking and a Memorandum Recording past Transactions both daled 21.01.2015 in connection with creation of security by equitable mortgage by deposit of title deeds as security. Accordingly, the defendant No. 3 deposited to the Applicant Bank, all the title deeds in respect of the immovable property (more specifically described in Schedules B and C of the OA).

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Further the Defendant No. 2 as^partner of Defendant No.1 had deposited a Fixed Oeposit Receipt of Rs.3.0O Lacs as security for the aforesaid credit facility which was fully adjusted in the loan account of the Oefendant No. 1 and in relating to the same the Defendant No. 2 as^partner of Defendant No. t had executed a Memorandum relating to charge over Fixed deposit d aled 21.O1 .2O15.

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The applicant bank further pleaded that on the request of the Defendants, the Applicant Bank vide Sanction letter dated OS.I 1.2016 had renewed the existing Cash Credit Facility of Rs.30.00.000/- (Rupees Thirty Lacs) only with interest at 11.05% per annum with monthly rests. ln the event of default in payment or any irregularity in the accounl the bank reserved the right to charge additional interest @ 1g.OO%o per annum on the overdue/ delays/ default of any monies payable. The Cash Credit loan is repayable on demand. The defendant No.2 as the partner of the defendant No.,l firm had signed on the said Renewal Sanction Letter thereby agreeing, accepting and acknowledging all the terms and condition therein.

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The Defendant No.2 as^partner of Defendant No.i on^.15.11.2016 had executed a Demand Promissory Note for RS.3O,OO,OOO/_ only in favor of the applicant bank, thereby promised to pay the aforesaid loan.

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ln terms of the Government of lndia^,,Emergency Credit Line Guarantee Scheme ("ECLGS"), the Appticant vide Sanctioned Letter dated j1.06.2020 had sanctioned Guarantee Emergency Credit Line (GECL) by way of working capital Term Loan of Rs.6,00,000/- (Rupees Six Lacs) only to the Defendants with the rate of interest @ 8.25^ok per annum. The aforesaid Term Loan was repayable in 4g Months from the date of disbursement after the expiry of the moratorium period. The

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sA,;sr,1i,*&h

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DRT. Guwahali

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O A 2532022/DRT-Guwahati

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Defendants were provided moratorium of 12 months on^principal amount, during which interest will continue to accrue and become^payable during the moratorium period. The Defendants had signed on the said Sanction Letter thereby accepting all the terms and conditions contained therein.

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ln order to secure the said GECL facility, the Defendants had executed a Facility Agreement, a Supplemental Deed of Hypothecation and a Declaration Cum Undertaking all dated 12.06.2020, in favour of the Applicant Bank. The aforesaid GECL loan was disbursed through the GECL Account No.8178404 standing in the name of Defendant No.^'l- The Defendants further executed a Letter of Authority for availing the credit facility.

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Further the aforesaid Term Loan was secured by creation of extension of equitable mortgaged of the immovable properties of Defendant No. 3 by deposit of title deeds which was originally created for the cash credit facility availed by the Defendant No.'I. more fully described in schedule B and C of the OA and in compliance with the terms and conditions of the sanction and in order to assure repayment of the said loan with interest. the Defendant No. 3 had signed and executed a Memorandum Recording Past Transactions of creation of mortgage dated^'12.06.2020 in connection with creation of security by equitable mortgage by deposit of title deeds as security.

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Further the Oefendant Nos.2 and 3 have executed a supplementary Letter of continuing guarantee dated '12.06.2020 in favor of the Applicant Bank as personal guarantors for repayment of the aforesaid term loan availed by the Oefendant No. 1.

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The defendants had availed of the said loan facilities from the Applicant Bank, but have not paid the loan amount as per the terms and conditions as agreed upon with the Applicant Bank, inspite of repeated demands and requests by the Applicant Bank. As the defendants failed to repay the loan amount or further renew the Cash Credit account, the said account became NPA on 29.01.2022. 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 further renew the loan account.

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o A 253/2022IDRT Glwahan

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The applicant bank thus became constrained to file the^{present Original} Application for the recovery of^{Rs.37,38,230.21 p (Rupee3ThirtySevsn Laca Thirty} Eight Thousand Two Hundred Thirty and^{Paiss Twenty One) only as on} 31.03.2022 along with interest and cost^{of the application.}

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After filing of ihe OA the Tribunal issued^{notices upon the defendants through} regisiered post. On 02.09.2022 Ld. Counsel^{Mr. A.F.Nasirhas appeared by filing} vakalatnama on behalf of all the defendants^{and sought timefor Iiling written} stalement cum evidence on affidavit which^{was duly permitted.Thereafter the case} was listed on several occasions^{i.e. on 30.09.2022, 14.'l.0.2022 & 02.02.2023, but the} written slatement cum evidence on affidavit^{hasnot been filed by the learned counsel} for the defendants. Hence the right of the defendants^{to file the written statement cum} eviden@ on affidavit was closed on 02.02.2023^{and Jhereafter the matter was posted} for hearing.

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Supporting the claim of the applicant bank^{Sri Debojit Mukherjee, Manager&} Authorized Signatory of the Applicant^{Bank has filed evidence} on affdavit^coupled with the security documents marked as Exhibit^-P, Exhibit AM/'l^{to AW-128,} supporting the claim of the applicant^bank.

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Heard the learned counsel for the applicant bank^{who prayedfor issuance of} Recovery Certificate against the defendants as^perpleadings madeⁱⁿ 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 executionof 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^{supportingtheclaimof 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 21.01.2015, 15.11 .2016, 12.06.2020. Moreover, after^perusing the documenb 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.3 where the limitation available is fo|l2

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5h,,r|,ora.!.ly 12.01.23 U Presding tmcer ORT, Guwahati

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O A. 253/2022loRT-Guwahaii

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years and as such taking into acmunl of the creation of the morlgage the application appears to have been filed wellwithin the^period of limitation. The account became NPA on 29.01.2022 and the OA has been filed on O'1.07.2022. Hence, the OA is filed well within the period of limitation and this Tribunal having a^jurisdiction to adjudicate lhe Original Application.

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Considering the unchallenged/ unrebutted version of Sri Debojit Mukherjee, 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. 253 of 2022 is allowed with cost as under i

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The defendants No.1, 2,3 & 4 are^jointly and seve€lly liable to pay to the applicant bank a sum of Rs. 37,38,230.2, p (Rupees Thirty Seven Laca Thirty Eight Thousand Two Hundred Thirty and Pais€ Twenty One) only with pendentelite and future interest @12.50% per annum with monthly rests lrcm 01.04.2022 till the date of full paymenurealization and also cost of the applicalion.

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ii) The charge of the certificated amount be kept alive on hypothecated 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 amounl be kept alive on mortgaged property, i.e. all that piece and parcel of land measuring 7 lecha covered by Oag No. 4 of Patta No. 5 of village Jakhlipar under Mouza Howly in the district of Baksa, B.T.R., Assam standing in the name of defendant No.3, 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 morlgaged property, i.e. all that piece and parcel of land measuring T lecha covered by Dag No. 4 of Patta No. 5 of village Jakhlipar under Mouza Howty in the district of Baksa,

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.qu, l,t a

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O A 2s3l2o22lDRT-Guwahali

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B.T.R., Assam standing in lhe name of defendant No.3, as described in

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Schedule-C ofthe OA till the amount is realized in full.

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

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

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

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viii) lssue Recovery Certificate accordingly for a sum Rs. 37,38,230.21 p (Rupess Thirty Seven Lacs Thirty Eight Thousand Two Hundred Thirty and Paise Twenty One) only in favour of the applicant bank against the defendants No. 1,2,3 & 4.

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

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This order is dictaied and corrected by the undersigned.

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Judgment dated 13h September 2023, signed and pronounced in the Tribunal

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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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suirsftd%.9*-k (Shiv Sharan Dubeyl - U Presiding Officer DRT, Guwahati.

Hdfc Bank v. M/S Sree Durga Motor Stores

Case brief

What is this about?

What did the court decide?

Hdfc Bank v. M/S Sree Durga Motor Stores

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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