Allowed

Canara Bank v. Sri Himanta Borah

DRT27 Jun 2023OA/41/2022

Case brief

AI extract

What is this about?

The tribunal allowed an application under the RDBFI Act for issuing a recovery certificate against a defendant who had defaulted on a term loan for purchasing refrigerators. The court held the application was within limitation due to a Supreme Court order excluding a period for judicial proceedings.

What did the court decide?

Issuance of Recovery Certificate for Rs. 23,87,945.24 with pendentelite and future interest, and right to proceed against secured and personal assets.

Canara Bank versus Sri Himanta Borah — Contract and Commercial Disputes | DRT (2023)

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O A.^{,t1zo2ZDRT-G(mh.li}

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IN THE DEBTS^{RECOVERYTRIBUNAL,GUWAHATI}

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(North Eastern Region)

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(Tribunal ofAssam, Nagaland, Meghalaya, Manipur, Mizo€m, Arunachal^{Pradesh& Tripura)}

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Before Shri Shiv Sharan Dubev. Presidinq^Officer

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o.A. No. 4'U2022

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ln the matter of -

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Canara Bank, llT Guwahati Branch, llT Guwahati Campus, North Guwahati, Kamrup, Assam, 781039.

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.Applicant

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Vs.

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Sri Himanta Borah Son of Amal Bora

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Village- Putoni Kamar Gaon, P.O.- Barhampur, P.S.-Samoguri.

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District- Nagaon, Assam, Pin-782003.

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Defendant

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Presencs of tho Counsel :

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: Mr.MKBora,Advocate For the Applicant For the Defendant : None (Ex-parte)

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Dated :27lOGl2O23

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JUDGMENT

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This is an application under section^{19 of the Recoveryof Debts Dueto Banks} and Financial lnstitutions Act,^{1993 filed by theCanara Bank,llT GuwahatiBranch,} llT Guwahati Campus, North Guwahati, Kamrup, Assam, 781039,^with a^prayerto issue Recovery Certificate^for the sum of^{Rs.23,87,945.24(Rupees Twenty} Three Lakhs Eighty Seven Thousand^{Nine Hundred FortyFive and Paisa Twenty} Four) only as on 3'1.12.2O2'l against the^{defendant with pendenteliteand future} interest at contractual rate till realization^{with cost, charges etc.}

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A few facts^giving rise to the^{present applicationare as under.}

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The defendant had approached the applicant^{Bank and appliedfor financial} assistance for^purchase of^{VOLTASREFRIGERATORSYSTEM by} loan application dated^{14.06.2018and after considering the said application, the}

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Sl..gu.sl^q\a- D"L,q J ".",0,"n3#Io'l'3 ORT, Guwahala

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O.A 41/2022lDRT-Guw.hati

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applicant Bank^{by SanctionMemorandum dated 15.06.2018had sanclioneda} credit facility of RS.2O,OO,OOO.oo^{to the defendantwith interestcharged 11 15o/oper} annum. The credit^{facility was to be repaidin 84 monthlyinstallmentsof Rs} 44,630.00 each. The^{credit facilityhasbeen coveredby the CGTMSE scheme'}

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ln connection with the^{sanction of lhe term loan of Rs'20,00,000 00} sanctioned by the applicant^{Bank and availed by the defendant, Agreement Cum} Deed of Hypothecation^{dated15-06-2018has been signedand executed by the} defendant in^{favour of the applicant Bank as securityfor repaymentof the loan} facility thereby agreeing^{to all the terms and conditions laid down in thesaidDeed} of Hypothecation^{and hypothecatedthe machinery purchasedout of the bank} finance^{(morefully described in Schedule A of the OA) in favour of the applicant} Bank.

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The defendant^{by executing particularsof Machinery Hypothecateddated} 16.07.2018 had^{accepted that themachinerywhich was financedby theapplicant} bank was received^{in good condition from the Show Room'}

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The Defendant^{had availed of the said loan facility from the Applicant Bank' but} had not^paid the^{loanamount as per the termsand conditions as agreed upon withthe} Applicant Bank,^{inspite of repeated demands and requests by the ApplicantBank'} As the defendant^{failed to repay the loan amount, the said account became NPA on} 0,1,03.2021.^{Afterthe account became NPAthe applicantbank issued notices for} repayment of the^{due amount' but the defendant had neither chosen for repaymentof} the remaining^{installment in the tetmloan ac@unt nor approached to the applicant bank} for settling the^{loan account.}

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The say of the^{applicant bank is that though the applicant bank oughtto file} suitonorbefore14.06,202lbutasperorderdatedlo.0l.2o22passedbythe Hon'ble Supreme^{Court in Misc. ApplicationNo 21 of 2022 in SMW(C) No 3 of} 2020,theinstantsuitisfiledwithinperiodoflimitation.TheHon,bleSupremecourtin the said^{order dkectedthat the period from 15032020lill 28'02'2022shall stand} excluded for the^{purpose of limitation as may be prescribed under} any^{general or} special laws^{in respect of alljudicialor quasi judicial proceedings'} Sl^ilJ^4444

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Sl^ilJ^4444 &' .1* **"n#&l'c l's I DRT, GU*Ahd

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O.A 41/2o2ZORT-G'r*ahat,

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The applicant bank thus became constrained to file the present Original Application for the recovery of Rs. 23,87,945.24^(Rup€ss Twenty Three Lakhs Eighty Seven Thousand Nine Hundred Forty Five and Paisa Twenty Four) only as on 31.12.2021 along with interest and cost of the applicatjon.

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After filing of the OA the Tribunal issued notices upon the defendant through registered^post and the applicant bank liled service reporl on 10.05.2022 and brought on record the postal receipt along with track consignment report which shows that the notice has not been served upon the defendant. Thereafter the Tribunal ordered paper publication of notice upon the defendant and the applicant bank issued notice to the defendant on 25.05.2022 through Paper Publication in two newspapers namely 'Iha Times of lndia " and "Dainik Assam". Even afier issuance of notice through paper publication upon the defendanl also there was no representation on behalf of the defendant either by lhe counsel or the person and hence the defendant was set expatle oa '18.07.2022 and the matter was posted for ex-parte hearing on behalf of the applicant bank.

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Supporting the claim of the applicant bank Sri Ananya Kumar Bhuyan, Senior Manager of the applicant bank has filed evidence on afiidavit coupled with the security documenb marked as Exhibit AW-'l/1 to AW-1/8, supporting the claim of the applicant bank.

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Heard the learned counsel for the applicant bank who prayed for issuance of Recovery Certificate against the defendant as per pleadings made in the Application, supported by evidence on affidavit of their witness who affirmed on oath the execution of the security and other documents by the defendant and also 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 documents filed by the applicanl bank are supporting the claim of the applicant bank and establishing the liability of the defendant. lt is proved that the defendant is liable to^pay to the applicant bank the claim made in the Original Application. The loan was obtained and documents have been executed on^'15.06.2018. The say of the applicant bank is that though the applicant bank

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SLu9.ala"^&^[-," **"n#*lttlz' DRT. Guwahali

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o.A.4112022lDRT€uwahati

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ought to file suit on or before 14.06.202'l but as per order dated 10.01.2022 passed by the Hon'ble Supreme Court in Misc. Application No. 21 of 2022 in SMW(C) No. 3 ol 2O2O, the instant suit is filed within period of limitation. The Hon'ble Supreme Cou( in the said order directed that the period from 15.03.2020 till 24.02.2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi iudicial proceedings. The account became NPA on O'1.O3.2O21 and the OA has been filed on 08.02.2022. Hence, the OA is filed well within the period of limitation and this Tribunal having a^jurisdiction to adjudicate the OriginalApplication.

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Considering the unchallenged/unrebutted version of by Sri Ananya Kumar Bhuyan, 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. 4'l ol 2022 is allowed with cost as under :-

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i) The sole defendant is liable to pay to the applicant bank a sum of Rs. 23,87,945.24 (Rupees Twenty Three Lakhs Eighty Seven Thousand Nine Hundred Forty Five and Paisa Twenty Four) only with pendentelite and future interest @11.150/o p.a. with monthly rests f@m 01.0'1.2022 till the date offull paymenurealization and also cost ofthe application.

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ii) The charge ofthe certificated amount be kept alive on hypothecated property, as described in Schedule-A ofthe OA till the amount is realized in full.

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

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iv) The applicant bank is also entitled to proceed against the personal assets and properlies of the defendant towards recovery of the dues.

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S l,.i J e{.^.lcvr, D*L'r . zllrt" l>r ,f Presidinq Officerl^{- l_} DRT. Guwahati

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O1. 4112022lDRT€u*'heti

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v) The applicant bank is entitled^{to the cosls of the O.A. which includes the} advocate fees of the^{applicant bank. Applicant is directedto file the cost} memo within 2^{weeks from today.}

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vi) lssue Recovery Certilicate^{accordingly for a sum R3' 23,87,945'2/t(RuPee3} Twenty Threo Lakb^{Eighty SovenThousand Nine Hundred Forty Fivo} and Paba Twenty Four)^{only in favour of the applicant bank againstthe sole} defendant.

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viD Communicate copy^{of this order to the coocemed parlies.}

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

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Judgment dated^{27th June' 2023, signed and pronounoedin the Tribunaltoday} under my signature.

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Copy of the JudgmenuFinal^{Order be uploadsd in the Tribunal's Websiteand} file be consigned to^{Record Room.}

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Sl.il slvv-t. P.-,5,., (Shiv Sharan Dubenl' '^! Presiding Ofticer DRT, Guwahati.

Canara Bank v. Sri Himanta Borah

Case brief

What is this about?

What did the court decide?

Canara Bank v. Sri Himanta Borah

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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