Allowed

Central Bank of India v. Messers Cell Point

DRT26 Sept 2023OA/452/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal allowed the application filed under Section 19 RDDBFI Act. The Tribunal held that the defendants were jointly and severally liable based on unchallenged evidence. A recovery certificate was issued for Rs. 22,06,001.72 with pending and future interest. The charge was kept alive on hypothecated properties.

What did the court decide?

Issued Recovery Certificate for Rs. 22,06,001.72 with 9.75% p.a. interest; kept charge alive on hypothecated properties; directed partner to pay costs.

Central Bank of India versus Messers Cell Point — Banking and Recovery | DRT (2023)

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o A. 4522022loRT,G@ahati

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IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

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(North Eastern Region)

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(Tribunal ot Assam. Nagaland, Meghalaya, Manipur, I\rizoram, Arunachal Pradesh E Tripura)

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Before Shri Shiv Sharan Dubev. Presidinq Officer

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O.A. No. 45212022

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ln the mattor of - Central Bank of lndia Jorhat Branch J.B.Coilege Road, Jorhat, 78599'l (Assam).

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Applicant

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Vs.

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M/S CELL POINT Proprietor- MRS SHOBHA SHARIVIA Opp- Crystal S R Plaza, Gar-Ali, Jorha!785001.

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MRS SHOBHA SHARMA Proprietor of M/S CELL POINT Wo Vidhyadhar Sharma, Adarash Nagar, Dewal Road, Ward No.6. Jorha!785001.

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Sri JITENDRA SHARMA S/o Vidhyadhar Sharma, Adarash Nagar, Dewal Road, Ward No.6. Jorhat-78500'l.

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Defendants

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Presence of the Counsel:

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For the Applicant : Mr. Debabrat Talukdar, Advocate For the Defendants : Mr. J. C. Gogoi, Mr. S. Ali, Mr. B. lslam, Advocates (Right to file WS cum EA closed)

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Oaled :26/0912023

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JUDGiIENT

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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 Central Bank of lndia, Jorhat Branch J.B.College Road, Jorhat,785991 (Assam), with a prayer to issue Recovery

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st;^sWffiWT Pr6idirE Offcer !^'t DRT Guwahali

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o.A. 452l2o22lD RT.cu{rhati

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Certificate for the sum of Rs. 22,06,001.72 (Rupees Twonty-Two Lakh3 Six Thousand One and Paise Seventy-T\iro) only as on 05.11.2022 against the defendants wiih pendentelite and future interest @9.75% per annum till realization along with cosl 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 a proprietorial firm and the defendant no. 2 is the proprietor of the defendant no. 'l firm. The defendant no. 3 is the guarantor to the loan. The defendant no. 2 on behalf of the defendant no.^.l lirm had approached the applicant bank and applied for financial assislance vide loan application dated 02.03.2015 and the applicant bank after due consideration vide its Sanction Letter dated 14.03.2015 had sanctioned a cash credit limit of RS.3O,OO,OOO/- lacs to the defendants with interest @ 11.25Vo. The defendants no 2 and 3 had signed the said Sanction Letter and thereby agreed to the terms and conditions laid down therein,

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ln connection with the sanction of the above mentioned Loan facility sanctioned by the applicant bank and availed of by the defendant no 1 firm, the defendant no. 2 had signed and executed Demand promissory note, Letter of Waiver, letter of continuity, Letter of lnterest variation and Assignment of book debts all dated 26.03.2015.

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Further in connection with the above mentioned loan facility sanctioned by the applicant bank and availed of by the defendant no. .l firm, the defendants No. 2 on behalf of the defendant no.1 firm had signed and execuled one Agreement of Hypothecation to secure demand cash credit againsl goods dated 26.03.201S thereby secure hypothecated the stocks, assets, goods ete of the defendant no.1 Iirm (described in Schedule -A of the OA) and had atso agreed to abide by the terms and conditions laid do\rvn therein.

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The defendants no,2 and 3 had stood as personal guarantors to loan by signing and executing one Form of Guarantee for advances and credit generally.

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ln connection with lhe above mentioned loan facility. the defendanls ft

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3 had signed and executed two separate Declaration cum Underlaking both dated 26.03.2015.

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Thereafter on 07.06.2018 the loan account of the defendant no. 1 was renewed and the defendant no.2 on behalf of the defendant no.1 firm had signed and executed D P Note, Letter of Continuity, Letter of Waiver, Letter of lnterest Variation and assignment of book debts all dated 07.06.2018.

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Further the defendant no.2 on behalf of the defendant no..l firm had signed and executed one Agreement of hypothecation to secure demand cash credit against goods dated 07.06.20'18 thereby hypothecated the goods, assets etc. ofthe defendant no.'l firm (described in Schedule -A of the OA) and had also agreed to abide by the terms and conditions laid down therein.

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As security the defendant no. 3 had also signed and executed one letter of lien dated 13.06.2018 thereby deposited tixed deposit receipt for Rs. 12,37,OOO.OO which was subsequently adjusted by the appljcant bank in the loan account of the defendant not to recover it's dues. The defendants no.2 and 3 had stood as personal guaranlor to the loan by signing and executing one form of guarantee for advances & credit generally dated 07.06.2018.

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With regard to the above mentioned loan facility, the defendants no.2 and 3 had signed and executed 2(two) separate Declaration cum Undertaking both dated 07.06.2018.

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The defendants had agreed to comply with the terms and conditions of the Sanction Letler and other relevant agreements and documents executed in connection with the aforesaid loan facility sanctioned by the applicant bank and had accepted the same by executing the said documents.

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Though the defendants had failed to regularize or repay the loan amount to the applicant bank, but had signed and executed 2(two) acknowledgement of debts dated 29.11.2019 thereby acknowledged their debts to the appticant bank. ''

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O.A. 4521202ZORT-Guwehan

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The defendants had availed the said loan facility from the applicant bank but has not paid the outstanding loan amount as per terms and conditions as agreed upon with the applicant bank, in spite of repeated demands and request by the applicant bank. As the defendant failed to repay the outstanding amount in the loan account, the said account became NPA on 28.02.2020. After the account became NPA the applicant bank issued notices for repayment of the due amount, but the defendant has neither chosen for repayment of the loan account nor approached to the applicant bank for renewal of the loan account

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The applicant bank thus became conslrained to file the present Original Application for the recovery of Rs. 22,06,001.72 (Rupees Twenty-Two Lakhs Six Thousand One and Paise Seventy-Two) only as on O5.1j.2022 along with interest and cost of the application.

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After filing of the OA the Tribunal issued notices upon the defendants through registered post and the applicant bank filed service report on j7.01.2023 and brought on record lhe postal receipts along with track consignment report which shows that the notice has been served upon the defendant No.3 and notices have not been served upon the defendants No. 1 & 2. Thereafter the Tribunal ordered paper publication of notice upon the defendants No.^.l & 2 and the applicant bank issued notice to the defendants No. 1 & 2 on 01.02.2023 through paper publication in two newspapers namely "Ihe Times of tndia', and^,,Dainik Janambhumi". fhe learned counsel for defendants No. 1,2 & 3 had appeared on 24.02.2023 by ing Vakalatnama and sought time to file written statement cum evidence on affidavit. Thereafrer, the case was listed on 17.03.2023, 19.04.2029 and 18.05.2023, but the written statement cum evidence on affidavit has not been filed by the defendants No. 1,2 & 3. Hence, their right of the file written statement cum evidence on affidavit was closed on^'18.05.2023 and the matter was fixed for hearing.

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Supporting the claim of the applicant bank Sri Neelesh Kumar, Chiel Manager of the Applicant Bank has filed evidence on afiidavit coupled with the security documents marked as Exhibit J, AW-1/l to AW-'1125 supporting the claim of the applicant bank.

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A.,!, VI t;i-ktr

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O.A. 452022./DRTGU*ahali

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Heard the learned counsel foI the applicant^{bank whoprayedfor issuance of} Recovery Certificate against the defendants as^{per pleadingsmade in the} Application, supported by evidence on aflidavit^{of theirwitness who affirmed on oath} the execution of the security and other documents by the defendants and also execution oflheir own documents relied upon, which have been ma*ed 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 iointly and severally liable to^pay to the applicant bank the claim made in the Original Application. The loan was obtained and documents have been executed on 26.03.2015 & 07.06.2018. As^per statement of account^(Exhibit-Aw- 1/25) the defendant have made several^{payments in} the loan account such as on 25.05.2016, M.06.2016 etc. The defendants had executed Acknowledgement of Debts dated 29.'11.2019 The account became NPA on 28.02.2020 and the OA has been filed on 15.1'l.2022. Hence, the OA is filed well within the^period of limitation and this Tribunal having a^jurisdiction to adjudicate the Original Application.

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Considering the unchallenged/unrebutted version of Sri Neelesh Kumar, the applicant's witness and all the documents marked as exhibits, including duly certified copy of the statement of accounl 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, lhe present Original Application No.452 of 2022 is allowed with cost as under: -

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i) The defendants No.^'1, 2 & 3 are jointly and severally liable to pay to the applicant bank a sum of Rs. 22,06,001.72 (Rupees Twenty-Two Lakhs Six

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Thousand One and Paise Seventy-Two) only with pendentelite and future

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sL,,ffi.prl Presiding Offber - DRT. Gus/ahati

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O.A. as2,l2022rDRl.G'rv.h.ti

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interest @9.75%o^p.a. with monthly rests from 06.11.2022 till the date of full

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payment/realization and also cost of the application.

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ii) The charge of the certificated amounl 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 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 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 Iile the cost memo within 2 weeks from today.

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vi) lssue Recovery Certificate accordingly for a sum Rs. 22,06,001.72 (Rupees Twenty-Two Lakhs Six Thousand One and Paise SEventy-Two) only in favour of the applicant bank against the defendants No. 1, 2 & 3.

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

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This order is dictated and corrected by the undersigned.

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Judgment dated 26th September 2023, signed and pronounced in the Tribunal today under my signature.

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Copy of the JudgmenuFinal Order be uploaded in the Tribunal's Website and file be consigned to Record Room.

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Presiding Officer DRT, cuwahati.

Central Bank of India v. Messers Cell Point

Case brief

What is this about?

What did the court decide?

Central Bank of India v. Messers Cell Point

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

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Case details

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