The Debts Recovery Tribunal allowed the applicant bank's application for issuance of a recovery certificate, finding the defendants jointly liable for the outstanding loan amount based on executed documents and unrefuted evidence.
Issuance of Recovery Certificate for Rs. 51,22,944.95 along with interest at 14% p.a. and costs.
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.
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6.A. 277zo2zDRTcu*ahali
IN THE DEBTS RECOVERY TRIBUNAL. GUWAHATI
(North Eastern Region) (Tribunal ol Assam, Nagatand, Meghataya, Manipur, M-koram, Arunachal pradesh g Tripura) Before Shri Shiv Sharan Dubev. presidino Officer
O.A. No.2Z7t2O22
ln the matter of -
SiJ#:ETlJnt**hiresvndicateBank) First Floor, Latika Comoler Nyamo Lotha Road (Church Road) urmapur. Nagaland_797.1.12
... .Appticanr
vs'
i. It /s samsung Electronics
r suken Mazumder f#:l,,;ffJq [lg,s
UlEiihl',n:i"""1+Y,,.' u tmaput-7 97 1 1 2, Nagaland
Also at:
ffi:gi:1#i",?Near Dors Horer
Defendants
Presence of the Counsel : For the Applicant : ilH,il,Tlf#ffia*"""
For the Defendants
None (Ex-parte)
Dated :O2tOAt2023
JUDGMENT
This is an application unde 19of the Recovery of Debts Dueto Banks and Financial lnstitutions Act, 199 o'uo by the canara Bank (Erstwhire syndicate Bank), Dimapur Branch, First a,oort , Latika complex, Nyamo Lotha Road (church
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O A. 27712022lDRT-G@ahati
Road), Dimapur, Nagaland-7g71 12, with aprayer to issueRecovery Certilicatefor
the sum of Rs. 51,22,944.85p (RupeesFifty One Lacs Twenty Two Thousand Nine Hundred Forty Four and Paiso EightyFlve) only as on 31.05.2022 againstthe defendants withpendentelite and future interestat contractual rates till realization along with cost and other relief.
A few factsgiving rise to thepresent applicationare as under.
The defendant no. 1 is theproprietorshipfirm of defendant no. 2 as wellas the borrower and defendantno. 3 is theguarantor to the loanavailedby the defendant no. 1 firm.
The defendant No. 2 asproprietorhad approachedthe applicantbank and applied forfinancial assistanceby submittinga Loan Applicationdated 26.09.2007for its business andafterconsidering the said application, the Applicant Bankvide Sanction Letter dated18.10.2007 had sanctioned an (SOD) of Rs. 8,00,0004 to the defendant firm withinterest @PLR+ 1o/o=14o/o ?etannum compounded monthly'
ln connection with thesanctionof the Overdraft Cash Credit Facilityof Rs' s,OO,OOO/- sanctionedby theapplicant bank and availedof by the defendanlfirm, a Demand PromissoryNote,Composite Hypothecation Agreement both dated 18.10.2007 havebeen signed and executed by the defendant No' 2 as the Proprietor of the firm infavourof the applicant bank as security for repaymenl of the loan' thereby agreeingto all the terms and conditions laid down in the said Agreement and alsocharged/hypothecationofpresentandfuturestocks,furnituresandfixturtesetcin favour of theaPPlicantbank.
ln connection withthe sanctioning of the Cash creditFacility of Rs 8'00'000L sanctioned bythe applicant bank and availedof by the defendantfirm'Guarantee Agreementdated18.'lO.2OO7was signed and executed by the defendantNo 3' who stood as thepersonalguarantor to the said loan facilityavailed by the defendantNo1 firm.ThesaidGuaranteeAgreementindefendantNo.3,scapacityaSthepersonal guarantor had notonly confirmedthe signing and execution of the Guarantee Agreement dated18.10.2007but also acknowledgedits obligationas thepersonal guarantor to the loanfacility availedby the defendantNo 'l firm'
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3
o.A. 27720224)RT€wrhari
The defendant no. 2 as the proprietor of the defendant no. 1 firm had approached the applicant bank for renewal of the cash credit facility and after considering the said request, lhe applicant bank had renewed the existing cash credit facility of Rs. 8,00,000/- only. The defendant No. 2 as the proprietor of the defendant No. 1 firm has signed and executed a Letter of Renewal dated 11.10.2009 thereby agreeing to the terms and conditions contained therein.
The defendant no. 2 as the proprietor of the defendant no. 1 firm had approached the applicant bank for renewal of the cash credit facility and after considering the said request, the applicant bank had renewed the existing cash credit facility of Rs. 7,00,000/- only. The defendant No. 2 as the proprietor of the defendant No.'l lirm has signed and execuled a Letter of Renewal dated 12.03.2010 thereby agreeing to the terms and conditions contained therein.
The defendant No. 2 as proprietor of defendant No.1 had confirmed and acknowledged its indebtedness towards the bank by signing and executing Acknowledgement of Oebt and Security dated 04112009, 12.O3.2O|O, 28.02.2013, 16.02.2016, 10.02.2019 and 08.09.2021 also confirmed the execution of loan documents and the relative securilies in connection with the said loan facility availed of by the defendants.
The defendants had availed of the said loan facility 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 29.09.2009. Afrer 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.
The applicant bank thus became constrained to file the present Original Application for the recovery of Rs. 51,22,944.85 p (Rupees Fifty Ono Lacs Twenty Two Thousand Nine Hundred Forty Fou. and Paise Eighty Fiv€) only as on 31.05.2022 along with interest and cost ofthe application.
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O A. 27 7 t2O22tDRI-GNaha'J
After filing of the OA the Tribunal issued notices upon the defendants through registered post and the applicant bank filed service report on 09.11.2022 and brought on record the postal receipts along with track consignment report which shows that the notice has been served upon the defendant No. 1 and notices have not been served upon the defendants no. 2 & 3 by name (defendant No. 2 is the proprietor of the firm), hence the service was not completed upon the defendants no. 3. Thereafter the Tribunal ordered paper publication of notice upon the defendants no. 2 & 3 and the applicant bank issued notice to the defendant No.3 through paper publication in two newspapers namely "The Morung Ex@ss " datd fi.12.2122 and "Tir yim yim" dated 23.12.2022. Even after proper service of notice upon the defendant No. 1 firm (defendant No. 2 is the proprietor of defendant No..l firm) and even after issuing notice lhrough paper publication upon the defendanls no. 3 there has been no representation on behalf of the defendants No. 1,2 & 3 either by the counsel or the person and hence the defendants No..1,2 & 3 were set ex-parte on 19.04.2023 and the matter was posted for ex-parte hearing on behalf of the applicant bank. Argument heard by the ld counsel for the applicant bank.
Supporting the claim of the applicant bank Sri purtoshi A.O, Senior Manager of the Applicant Bank has liled evidence on affidavit coupled with the security documents marked as Exhibit -p, Exhibit AW-1/1 to AW_1/16, supporting the claim 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 execulion of the security and other documents by the defendants and also execulion of their own documents relied upon, which have been marked exhibits.
Considering the facls and circumstances of the case, I am of the considered view that the documents 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 liable to pay to the applicant bank the claim made in the Original Application. The loan was obtained and documents have been executed on
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5
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18.1O.2002, 1 1.10.2009 & 12.O3.2O1O. The defendant No. 2 as proprietor of defendant No.1 had confirmed and acknowtedged its indebtedness towards the bank by signing and executing Acknowredgement of Debt and security dated 04.1.r.2009, 12.09.2010, 28.02.2013, 16.02.2016, 10.02.2O1g and 08.09.202i. The account became NpA on 29.09.2009 and the OA has been ,ited on 29.06.2022. Hence, the OA is filed well within the period of timitation and this Tribunal having a jurisdiction to adjudicale the Original Apptication.
Considering the unchallenged/ unrebutted version of Sri purtoshi A.O, the applicant,s witness and all the documents marked as exhibits, including duly certilied copy of the statement of account along with interest calculalion sheet maintained by the applicant Bank in it,s regular cou business' I hold that the applicant is entitled to get the Recovery c",tifi"rt" ""pr:;of
ln the result, the present Original Application No. 277 of ZO22 is allowed with cost as under :-
i) ttre defendants No.l, 2 & 3 are joinfly and severafly tiable to pay to the applicant bank a sum of I Twenty Two Thousand ,,"".',,,,,,*.85p (RupeesFifty one Lacs Hundred Forty Four and Paise Eighty Five) onry with pendenterite and futu re interest @14% per annum with monthly rests rtom 01.06.2022tifl the date f full paymenurealization and also cost of the apprication.
ii) The charge of the certiricated amount be kept alive on hypothecated properties as described in Schedule-A of the OA till the amount is realized in fuI.
iii) The appticant bank is entifled to proceed against the secured items towards recovery of the debts.
v) The applicant bank is entifled to the costs of the O.A. which includes the advocate fees of the applicant bank. Applicant is directed to file the cosl memo within 2 weeks from today.
,k#rt
6
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under my signalure.
Copy of the JudgmenuFinal Order be uploaded in the Tribunal's Website and
file be consigned to Record Room.
s[*rSlo,.g9]5;[,.1 (Shiv Sharan oubdlf 12 l| Presiding Oflicsr DRT, Guwahati.
1 issue framed by the court
Whether the recovery court has jurisdiction to issue a recovery certificate against the defendants given the unchallenged evidence of liability and proper service of notices by publication.
Syndicate Bank (erstwhile Canara Bank)
Shiv Sharan Dubey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
