Allowed

Idbi Bank v. Shri Manmohan Sikaria

DRT4 Jan 2024OA/100/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal allowed the bank's application for a recovery certificate. The court upheld the bank's claim for Rs. 91,49,787.06 with interest against four respondents, confirming their joint and several liability for defaulted loans and mortgage dues based on documentary evidence.

What did the court decide?

Issued Recovery Certificate for Rs. 91,49,787.06 with pending and future interest of 12.75% p.a.; liability declared joint and several; charge kept alive on mortgaged property.

Idbi Bank versus Shri Manmohan Sikaria — Banking and Recovery | DRT (2024)

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o a 100r2022/DRT-Guwahaii

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IN THE DEBTS^{RECOVERYTRIBUNAL,GUWAHATI}

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(North Eastern Region)

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(Tribunal of Assam, Nagaland, ir;ghalaya,^{Manipur, Mizoram,Arunachal Pradesh& Tripura)}

O.A. No. t00/2022

ln the matter of-

IDBI BANK LIMITED

Panbazar Branch, Satyen Niwas,^{Opp. Sukleswar Mandir'} M.G.Road, Panbazar,^{Guwahati-781001}

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Applicant

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Vs.

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SHRI MANMOHAN^SIKARIA S/o Late Pawan^{Kumar Sikaria}

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(On the death of Shri Pawan^{Kumar Sikaria, Proprietorof} M/s Parashuram^PawanKumar),

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Jalan Market. M.G.Road,^FancyBazat, Near lClCl Bank. Guwahati-781001,^Assam.

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SMT BIMLA OEVI^SIKARIA W/o Late Pawan^{Kumar Sikaria}

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(On the death of Shri Pawan^{Kumar Sikaria, Proprietorof} M/s Parashuram^{Pawan Kumar),}

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R/o House No.62,^{GroundFloor' PNGB Road,}

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Shantipur, OPP.^{Govt Art School,}

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Guwahati-781009,^Assam.

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MR MANMOHAN SIKARIA S/o Late Pawan^{Kumar Sikaria} R/o House No.62,^{Ground Floor, PNGB Road,} Shantipur, Opp.^{Govt Art School'} Guwahati-781009,^Assam.

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SMT SHYAMA^DAS Wo Shri Phanidhar^Das

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R/o Bye Lane^{No.s, KamakhyaNagar,}

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Adabari Tiniali. Guwahati-781^{01 2, Assam.}

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Defendants

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Presence of the^Counsel:

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Mr. Gitartha Das, For the Applicant Mr. Chandan Kalita, Advocates

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For the Defendants Ms. Papia Chakrabarty, Ms. Anlta Das, Advocates.

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Oaled :041O'U2O24

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_,nwFt

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Presiding Offcer^tu ORT, Guwahati

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O A'100/2022loRT-cuwahati

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JUDGMENT

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This is an appricalion under section 19 of the Recovery of Debts Due to Banks and Financiat tnstitutions Act,^.1993 fited by the tDBl Bank Limited, panbazar Branch, Satyen Niwas, Opp. Sukleswar Mandir, M.G.Road, panbazar, GuwahatFT8lOOl, with a prayer lo issue Recovery Certificate for the sum of Rs. 91,49,787.06 (Rupeos Ninety-One Lacs Forty-Nine Thousand Seven Hundred Eighty_Seven and paise Six) only as on 28.02.2022 against the defendants joinfly and severa y with pendentelite and future interest at 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 predecessor of defendants no.1 and 2 i.e. Shri pawan Kumar Sikaria, Proprietor of M/s Parashuram pawan Kumar availed cash credit limit upto Rs 7O.OO Lakhs from the applicant bank. The loan was taken for business requirement for doing wholesale trading of Amur Diary and minerar/firteled water. The defendants no.3 and 4 slood as guarantors. The defendant no.4 secured the loan by creating equitable mortgage of her landed property. Further, during the COVID_19 pandemic the Applicant sanction and djsbursed an amount of Rs 13.99 Lakhs to the defendant(s) for the purpose of meeting working capital requirements for serving of COVID- 19 moratorium granted as per Reserve Bank of lndia guideline.

¶35

Pursuant to the application for loan by the predecessor of defendants no..l and 2, the applicant afler considering his request sanction cash credit limit upto Rs 70.00 Lakhs only vide sanction letter dated 24.10..14, subject to acceptance of the terms and conditions set forth therein by the defendants. As per the said sanction letter the defendant(s) is required to pay interest @BBR + 2.SO% p.a. (BBR was 1025% p.a.) payable at the first day of every month. The cash credit limit is repayable on applicant's demand. The defendants accepted the terms and conditions of the said sanction letter 24.'10.2014 by duly signing and returning the duplicate copy of the said sanction letter.

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ln order to avail the Cash Credit Limit of Rs.70.00 Lakhs, the defendants executed the following loan & security documents :-

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S[itsl,ow-W Presiding Ofllcer DRT. Guwahali

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o.A. t oo2o2zDRr€u*.har.

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a. Demand Promissory Note dated 29.10.2014 executed by the predecessor of defendants No.1 & 2;

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b. Demand Promissory Note Oelivery Letter dated 2g..10.14 executed by the predecessor of defendants no. 1 & 2;

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c. C_ontinuing Security Letter dated 2g.10.14 executed by the predecessor of defendants No. 1 and 2i

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d. Hypothecation-cum- loan Agreement dated 28..t0.2014 executed by the predecessor of defendants No. 1 and 2i

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e. Common Guarantee Deed dated 28.10.2014 executed by predecessor of

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the defendants No. 1 & 2;

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f. Common Guarantee Deed dated 2g.10.20.14 executed by the defendant No. 3;

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g. Common Guarantee Deed dated 2g.10.2014 executed by defendant No. A.

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h. Undertaking to be furnished by the personal Guarantor dated 2g.10.2014 executed by the predecessor of defendants No. 1 & 2;

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i. Undertaking to be furnished by the personal Guarantor dated ZB.1O.2O,|4 executed by the defendant No. 3;

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j. Undertaking to be furnished by the personal Guarantor dated 28.10.2014 executed by the Defendant No. 4:

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k. Undertaking dated 28..10.14 executed by the predecessor of defendants no.'l & 2 to deposit the entire proceeds/receivables from their clients into the bank account of the Applicant:

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l. Undertaking dated 28.10.2014 executed by the predecessor of defendants no.1 & 2 to set off on all operative accounts;

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m. Undertaking of Negative Lien dated 28.10.04 executed by the predecessor of the defendants no.1 & 2;

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n. Undertaking to create mortgage/charge dated 29.10.,14 executed by the predecessor of the defendants No.1 & 2;

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o. Undertaking to create mortgage/charge dated 29.10.14 executed by the defendant No.4;

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The defendant no.4 secured the Cash Credit timit of Rs 7O.OO lakhs by creating equitable mortgage of land measuring 1 Bigha covered by Dag No.S72, Periodic Patta No.74 of situated at Mouza- Dakhin Rani, Village Barjhar in the district of Kamrup (Assam) by depositing with the applicant the ti e documents as

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under:-

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i. Letter 28.10.2014 executed by defendant No. 4 regarding deposit of Tifle Deeds for Creation of Equitable Mortgage;

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ii. Regd. Deed of Sale no. 8'125/06 dated 01.08.2006;

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iii. lrrevocable Power of Attorney dated 21.03.2003;

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iv. Mutation Certificate/ Land Holding Certificate dated 24.08.06;

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v. Chitha dated 23.08.06;

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vi. Jamabandi dated 2'1.03.14;

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vii. Land Revenue Paying Receipt No. 1557186 dated 20.O3.'l4i

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viii. Trace Map dated 28.08.06 for Dag No.572;

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ix. Non-Encumbrance Certificate dated 23.09.14'

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x. Affidavit regarding non- encumbrance dated 24.09.14 executed by the Defendant No.4;

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xi. Form 50 from the office of Munsiff Court dated 20.09.14:

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xii. Form 50 from the oflice of Civil Judge Court dated^'19.09.14; qk;ck'i't- --' S't"r o+^{61 2</sup> d Presiding Otrcer DRT, Guwahali}

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O A 100,2022lDRT-G@ahan

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xiii. Form 50 from the office of Oistrict and Session Judge Court dated 19.09.14;

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xiv. Declaration and Undertaking dated 28.10.14 executed by the Defendant No. 4.

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The applicant also^procured the valuation report dated 10.'12.2021 in connection with Schedule -B^property.

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After executing all the loan and security documents the defendants availed the cash credit limit upto Rs 70.00 lakhs from the Applicant bank.

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The cash credit limit was renewed on 18.07.16. lt was again renewed on 29.01.18 and furlher renewed on 03.07.19. The^properties hypothecated and mortgaged to the Applicant bank earlier were also extended to secure the renewed limit.

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The defendants continued to avail the cash credit limit upto Rs 70.00 lakhs from ihe Applicant bank.

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Pursuant to the further request of the defendant(s) for renewal of the cash credit limit for another one^year, the applicant vide sanction letter dated 30.09.2020 informed the said defendants that his^proposal has been considered and cash credit limit of Rs. 70.00 Lakhs was renewed for another one^year. As per the said sanction letter the borrower is required to^pay interest @RLLR (Y)^+4.95o/o g.a. (applicable RLLR (Repo Linked Lending Rate)- MSE-l year as on 12.08.2020 was 7.7oo/o') payable monthly. The cash credit limit is for one year repayable on applicant's demand. The properties hypothecated and mortgaged to the applicant bank earlier are also extended to secure the said limit. The defendants accepted the terms and conditions of the said sanction letter 30.09.2020 by duly signing and returning the duplicate copy of the said sanction letter.

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ln order to avail the renewed Cash Credit limit of Rs. 70.00 Lakhs the

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defendants executed the following loan & security documents -

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a. Demand Promissory Note dated 30.09.2020 executed by the predecessor of defendants no. 1&2;

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b. Demand Promissory Note Delivery Letter dated 30.09.2020 executed by the predecessor of defendants No. 1& 2;

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c. Continuing Security Letter dated 30.09.2020 executed by the^predecessor of defendants No. 1& 2;

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d. Hypothecation-cum-loan Agreement dated 30.09.2020 executed by the predecessor of defendants No. 1 & 2;

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e. Common Guarantee Deed dated 30.09.2020 executed by the predecessor of defendants No.^'l & 2,

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fl,trM#*ry Pr.Biding Oficet '^/ ORT, Guwahati

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O A 1oO/2O22,ORT-Guwahati

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f. Common Guarantee Deed dated^{30.09,2020 executedby defendantNo. 3;}

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g. Common Guaranlee Deed dated 30.09.2020^{executed by defendani No.4}

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After executing all the^loan and^{security documentsthe defendant(s)} continued to avail the cash^{credit limit uptoRs.70.00 Lakhsfrom the Applicant} bank.

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Pursuant to further request^{of the predecessorof the defendants no.1 & 2} for financial assistance^{on accountof outbreakof Covid-19,the applicantafter} considering^{his requestsanction a working capitalterm loan Rs 13.99 Lakhs vide} sanction letter dated^{30.09.2020.As per the said sanction letterthe borrower} interalla is required to^{pay interest} @RLLR^{(Y) +1 00o/o p a (applicable RLLR} (Repo Linked Lending Rate)-MSE-1^{Year as 1210812020 is7 .7ook\ payable monthly} etc. Tenure of^{loan shall be fouryearsfrom the date of disbursementetcThe} properties hypothecated and mortgaged to^{the applicantbank earlierare also} extended to secure the^{saidWCTL.The defendants compliedwiththe} requirements of the sanction^{letter towards acceptanceof the terms and conditions} contained therein.

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ln order to avail the^{WCTLof Rs. 13 99 Lakhs thedefendants executed the}

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following loan & security documents^-

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a) Oemand Promissory^{Note dated 30.09.2020executed by the predecessorof} defendants no. 1&2;

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b) Demand Promissory Note^{DeliveryLetter30 09 2020 executedby} predecessor of defendants no. 1 & 2;

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c) Undertaking letter^{from Borrower/Guarantor(Annexure-lv) executed by the} predecessor of defendants no. 1 &2 and defendant no.4;

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d) Supplemental Deed of^{Hypothecation-cum-loanAgreementdated} 30.09.2020 executed by the^{predecessor of defendants no. 1 and 2.}

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e) Affidavit dated 30.09.2020^{executedby the predecessorof defendantsNo. 1} &2i

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f) Supplemental Guarantee^{Deed dated30.09.2020executed by defendant} No. 4;

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g) Declaration and Undertaking dated 30.09.2020 executed by the Defendant No. 4 in lhe matter of mortgage by deposit of^{title deeds wherein the said} defendant confirmed creating equitable mortgage of^{her property (Schedule-} B) to secure the WCTL of Rs 13.99 Lakhs.

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After executing all the loan and security documents the defendants availed

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the WCTL of Rs.13.99 Lakhs lrom the Applicant^bank.

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The defendants had availed the said credit facilities from the applicant bank but

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sl.v f^{groan Q'LU} o4^.a t.2\ A Presiding Offic€r ORT, Guwahali

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cA. 1oo/2o22lDRT€uwahati

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have not paid the outsianding 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 defendants failed to repay the loan amounts, the said loan accounts became NPA on 29.09.202.1. On 04.04.18 and 14.06.,19 the predecessor of defendants no. I & 2 confirmed the outstanding balance in Cash Credit Account No.0115651100000550 by executing the balance confirmation letters. Again on 30.09.2020 the predecessor of defendants no.^.l & 2, defendant no.3 and defendant no. 4 executed acknowledgement of debts and confirmation of security. After the accounts became NPA the applicant bank issued notices for repayment of the due amount, but the defendants failed to repay the loan amount.

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The applicant bank thus became constrained to file the present OriginalApplication for the recovery of Rs. 91,49,787.06 (Rupees Ninetyone Lacs Forty-Nine Thousand Seven Hundred Eighty-Seven and paisE Six) onty as on 28.02.2022 along with interest and cost ofthe 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 04.O5.2022 and brought on record the postal receipts along with track consignment report. The learned counsel for defendants has appeared on 12.05.2022 and tiled their written statement on 22.06.2022 to which learned counsel for the applicant filed rejoinder on 0'1.03.2023.|t is observed that the learned counsel for defendants has submitted that they do not want to file evidence on affidavit in the matter. Thereafter the matter was posted for hearing.

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Supporting the claim of the applicant bank Smt Bharti Maheshwari, Branch Head of the Applicant Bank has filed evidence on affidavit coupled with the security documents marked as Exhibit AW-1/1 toAW-l/61 supporting the claim of the applicant bank details of which are: -.

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Sl.No.	Nameofthe documents	ExhibitNo.
1	Deleqation of Powers of theAoplicant
2	Applicationforloan datedNilby thepredecessor of defendantNo.1& 2	AW-1t2
3	SanctionLetter dated24.1O2OO4	AW-1/3
		\k-r!6ao.AJ;,v ".*rn^{r#,t l'21d} DRT. Guwahalr

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O A. 100/2022lDRl-cwahatr

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4	Demand Promissorytloteaateo,aja2ol4ex;utedby thepredecessor of defendantNo'l& 2
5	. DemandPromissory 28.10.2014executed No.1& 2 NoteDelivery the^predecessor by Letterdated ofdefendant	AW-1/5
6	Continuing Security Letter dated28.1O.2014executedby thepredecessor of defendantNo.1 &2	AW-1/6
7	Hypothecation-cum-loanAgreementdated28.'10.2014 executedbythepredecessor of defendantNo.'l& 2
B	Common GuaranleeDeed dated28.'10.2014executedby thepredecessorofdefendant No.1& 2	AW-1/8
o	Common GuaranteeDeed dated 28.10.2014executedby thedefendantNo.3	AW-1/9
10	Common GuaranteeDeeddated28.'1O.2014executedby thedefendantNo.4	AW-'t/10
11	Undertakingtobefurnished bythepersonal Guarantor dated28j02014executedbythepredecessor of defendantNo.'1&2	AW-1/11
12	Undertakingtobefurnished bythepersonal Guarantor dated28.10.20'14executedbythe defendant No.3	AW-1t12
13	Undertakingtobe furnished bythepersonal Guarantor dated 28.10.2014 executedbythe defendant No.4	AW-l/13
14	Undertakingdated28.10.20'14 predecessorofdefendantNo.'l& proceeds/receivables executedbythe 2 todeposittheentire
15	Undertakingdated28.10.20'14executed predecessorofdefendantNo.1&2toset operative accounts. bythe off onall	AW-'l/15
16	UndertakingofNegativeLien dated28.10.2014executed bvthe^predecessorofdefendantNo.1&2.	AW-1/16
17	Undertakingto createmortgage/chargedated28.10.2014 executedbVthe^predecessorofdefendant No.1&2.
1B	Undertakingtocreatemo(gage/chargedated 24.10.2014.	AW-1/18
19	Letter dated28.10.2014 executedbydefendantNo.4 regarding deposit ofTitleDeedsforcreationofequitable mortgage.	AW-'t/19
20	Reqd. Deedof SaleNo. 8125/06 dated 01.08.2006	AW-1/20
2',1	lrrevocablePowerofAttorney dated 21.03.2003	AW-1t2',1
22	MutationCertificate/LandHoldingCertificatedated 24.08.2006	AW-1t22
	Chitha dated 23.08.2006	AW-1t23
24	Jamabandi dated21.03.201 4	AW-1t24
	LandRevenuePayingReceiptNo.1557186dated 20.03.2014	AW-1t25
26	TraceMap dated 28.08.2006forDaq No. 572	AW-1t26
27	Non-Encumbrance Certificate dated 23.09.2014	AW4n7
28	Affidavitregardingnon-encumbrancedaled24.09.2014 executed by the defendant No.4	AW-1D8
29	Form50fromtheOfficeofl\4unsiffCourtdated 20.09.2014	AW-1/29
30	Form50fromtheOfficeofCivilJudge Courtdated 19092014	AW-1/30
31	.. Form50fromtheOfficeofDistrictandSessionsJudge Courtdated19.09.2014	AW-1/31
32	DeclarationandUndertaking dated 28.10.2014executed bythe defendantNo.4	AW-1t32

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A,tLw l'4, 0

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DRT. Guwahali

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O A 100/202zoRT-6uw,hari

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33	ValuationReportdaled10j22021 inconnectionwith Schedule-Bprgperty	AW-1/33
34	Sanction Letterdated18.07.2016	AW-1/34
	Sanctlon Letter dated29.01.20'18	AW-1/35
36	Sanction Letter dated 03.07.2019	AW-1/36
37	Sanction Letter dated 30.09.2020	AW-1/37
38	Demand Promissory Note dated30092020execr.liedby thepredecessor of defendant No.1& 2	AW-1/38
	DemandPromissory 30.09.2020executed No.1& 2 NoteDelivery bythepredecessor ^Letterdated ofdefendant	AW-1/39
40	Continuing Security Letter dated30.09.2020execuiedby thepredecessorof defendantNo.1&2	AW-1/40
41	Hypothecation-cum-loanAgreementdated30.09.2020 executedbythepredecessor of defendant No.1& 2	AW-1t41
42	Common GuaranteeDeed dated 30.09.2020executedby thepredecessorofdefendantNo.'1& 2	AW-1t42
43	Common GuaranteeDeeddated30.09.2020executedby thedefendantNo.3	AW-1/43
44	CommoncuaranteeDeeddated30.09.2020executedby thedefendantNo.4
45	Sanction Letter dated 30.09.2020	AW-'l/45
46	Demand Promissory Note dated30.09.2020executedby thepredecessorof defendantNo.'l& 2	AW-1/46
47	DemandPromissory 30.09.2020executed No.1& 2 NoteDelivery thepredecessor ^Letterdated ofdefendant by	AW-1t47
48	Undertaking LetterfromBorrower/Guarantor (Annexure- lV) executed bythepredecessor of defendantNo.'l&2 anddefendantNo.4	AW-1/48
49	SupplementalDeedof Hypothecation-cum-Loan Agreement dated30.09.2020wherein the predecessorof defendantNo.1 &2	AW-1/49
50	Affidavit dated30.09.2020 executedbythepredecessor ofdefendant No1& 2	AW-1/50
51	SupplementalcuaranteeDeeddated30.09.2020 executedbythedefendant No.4	AW-1/51
	DeclarationandUndertakingdated30.09.2020executed bythedefendantNo.4	AW-1/52
53	Applicant'sRecall Noticedated10.11.2021	AW-1/53
54	GuaranteelnvocationNotice dated 26.11.2021	AW-1/54
	StatementofAccountforCashCreditAccountNo. 0115651^'100000550	AW-1/55
56	StatementofAccountforWCTL AccountNo. 0115673200000213	AW-1/56
57	Common certiflcatesforboththeaccountsare givenby theAssistant GeneralManager&BranchHeadand Deputy GeneralManager&RegionalHead GuwahatiI Reqionoftheapplicant bank.	AW-'l/57
	Penallnterestwaiver certiflcate	AW-1/58
	i	krrala^6,Ub$ -04,o

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O A¹ 00,2022lDRT-G@ahair

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¶120

	BalanceConfirmationLetter dated 04.O4.2018	AW-1/59
60	Balance Confirmation Letterdated14.06.2019	AW-'1/60
61	AcknowledgementofDebts and^{ConfirmationofSecurity} dated 30.09.2020	AW-'1/61

¶121

The defendants have appeared^{andcontestedthe claim of the applicant bankby} filing written statement stiating^{interalia that the answeringdefendantshad availeda loan} in the form of Cash Credit^{to the tune of Rs. 70 lakhs for running thebusinessof} wholesale trading Amul^{dairy and other producls.The answeringdefendantsare} maintiaining account with^{this applicant bank eversincethe sanciion of the loan There} was hardly any occasion^{when the accountwas inegular wtlichwasto be subsiantiated} from the statement^{of account. Therewas inegularity in maintainingthe loan accounl} since the onset of Covid^{pandemic which was due to loss ot businessduringthat time} There is no wiltful or deliberate^{defauhin payment of the loan. Besides,the proprietorof} the firm Late Pawan^{Kumar Sikariahad expired in the meantime defendants2 and 3} who are his wife and son^{\r,/ere completely unable to handle the affirm of the company} which had led to complete^{collapse of the business.Annual dealership was terminated.} An amount of Rs. 13.99^{lakhs was sanctioned duringthe pandemic.This amount should} not have charged any interest^{on it sinceit wasinterestfree loan in the present case in} hand the applicant bank seems^{to have charged interest on the said amountalso} clubbing the amount^{with the original CC loan and charging interest on the entire} amount which is unacceptable^{andunsustiainablein the eye of law. The ans/r€ring} defendants approached^{the applicant bank for One Time Settlement of the account.But} the applicant bank has^{not acc€ptedtherequestof theanswering defendants. This} account cruld have been settled^{mutually withoutthe intervention of the coud, however} the applicant bank has^{unnecessarily filed this OriginalApplication puftingfurlherburden} on the defendants towards liquidation of the^{loan account.}

¶122

The leamed counsel for the applicant bank has filed rejoinder against^{the Mitten} statement filed by the defendantsⁱⁿ which^{it has been stated that the writtenstatement} filed by the answering defendants are^{baseless. The defendants have failed to submit} their evidence-on-affidavit as^such no^{reliance can be placed on theiralleged} written statement. The applicant's case^is based^{on documents and from the documents}

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sLusl^#Ifu Presiding Oflicer ORT Guwahali

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¶125

O.A. 100/2022lORT-Guwah.ti

¶126

exhibited by the^{applicant it is beyond any doubt,that the applicant has proved its case} againstthedefendantsasclaimedintheoriginalApplication.Thecashcreditlimitwas originatly sanctioned^{in the year 2014,renewedon 18.0716, 29 01 18, 03 07 19 and} 30.09.2020 ought^{to havebeen repaid within one years from the date of last renewal'} Ouring the COVID-lg^{pandemic the Applicanthad on 30 09 2020 sanciionedand} disbursedanamountofRs'l3ggtothedefendantsasWCTLThedefendantsfailedto repay/regularizetheloanamountwhichtheyhavemiserablyfailed.Theloanaccounts became NPA on^{29.09.2021. Thereafter, the applicantissued recallnoticedated} 10.11.2021^{(ExhibitAW-1/53) and Guarantee lnvocationNotice dated26"l.12021} (Exhibit AW-1/54) to the^{defendants but they failedto cleartheir dues ln facl' the} defendants enjoyed^{the benefitof the loan amounls but wtlenit comes to the matterof} repayment they^{are tryingto escape ftom their liabil y by taking Iancifulpleas The} defendants having^{confirmedthe outstanding balance (Exhibits AW-1/57to AW.1/59)} nowcannotdenythesame.TheWrittenStatementfiledbythedefendantsareliableto be rejected as^{being non sustainable in law and facls lt is further stated that the} mortgaged^{property is the only security left to secure the loans amountwhich is also} insufficient to realize^{the entire dues Assuch this Tribunal vide order dated 22032022} directedthedefendantstodisclosetheirotherpropertiesorassetsownedbythembut the defendants^{have notcomplied with the said order oftheTribunal}

¶127

None has appeared^{for the defendantsto put foMard their arguments'}

¶128

I have carefully^{perusedthe documentson record including original application'} evidence on affidavit^{and exhibited documents as weltas written statementfiled by the} defendants.

¶129

It is observed^{that the defendants have not deniedthe availment of loan'} execution of documents^{and their signatureon the same'}

¶130

It is evident from^{the siatement of accountfiled by the applicantbank that the} defendants have defautted^{in repaymentof the loan.lfthere is defaultin repaymentof the} loantheapplicantbankhaseveryrighttoproceedagainstthedefendantsforrealization of the outsianding^{dues, Hence, l have no hesitationto hold thatthis original applicationiS} maintainable.

¶131

9^AW,M Preliding Offcar DRT. Gurvahali

¶132

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O A¹ oo/2o2ZDRl-Guwahrti

¶134

The applicant bank has^produced on record the mpies of the statement of account

¶135

in respecl of the defendants, duly certified under Bankers' Books Evidence Act. The applicant bank by the evidence-on-affidavit of Smt Bharti Maheshwari,^{Branch Head} of the applicant bank had deposed the correclness of the affidavit and certified copy of the account. Beyond that nothing more has to be deposed^{by an oflicer of the bank. lt is thus} obvious that apart from the entries of ihe Books of account there^{are ample evidence on} the record to corroborate the said^entries.

¶136

The documents executed by the defendants^{are duly proved by theapplicant} bank and the witness of the^{applicant. The applicant hassufficientcause of} action for filing the instant application^{due lo disbursemenuavailment of loan to/bythe} defendants and on default in^{repaymentof the ioan by the defendants, inspiteof} demands made, as^per exhibited documents^{filed by the applicant bank}

¶137

Considering the facts and circumstances^{of the case, I am of the considered} view that the documents^{liled by the applicant bankare supporting the claim of} the applicant bank and establishing^{the liability of the defendants.lt is proved that the} defendants are^jointly and severally^{liable to pay to the applicant bank the claim made} in the Original Application. The^{loanswereobtainedand documentshave been} executed on 28.10.2014,^{18.o7.20'16,29.01.2o1a,03.07.2019 & 30.09.2020. Balance} Confirmation Letters are dated 04.04.2018^{and 14.06.2019.Acknowledgment of Debts} and Confirmation of Security is^{dated 30.09.2020.Moreover,afier perusingthe} documents on record and^{taking inio consideration of the facls and circumstancesof lhe} case, lfind that the mortgage^{has been createdby the defendant No.4 wherethe} limitation available is for 12^{years and as such taking into account of the deationof the} mortgage the application appears to have been^{filed well within the periodof limitation.} The accounts became NPA on 29.09.2021 and the^{OA has beenliled on 14.03.2022.} Hence, the OA is filed well within the^{period of limitation and this Tribunal having a} jurisdiction to adjudicate the Original Application.

¶138

Considering the version of by Smt Bharti^{Maheshwari,the applicant'switness} and all the documents marked as exhibits,^{includingduly certified copy} of^the statemenl of account along with interest calculation sheet maintained by the^applicant

¶139

¶140

O A 1 Ool2o22loR1€uwahati

¶141

Bank in it's regular course of business, I hold that the applicant is enti ed to get the Recovery Certificate as prayed for.

¶142

ln the result, the present Original Application No. 100 of 2022 is a owed with cost as under: -

¶143

i) The defendants No. 1, 2,3 & 4 are jointly and severally liabte to pay to the applicant bank a sum of Rs.91,49,787.06 (Rupees Ninetyone Lacs FortyNine Thousand Sgven Hundred Eighty-Seven and Pabe Six) only with pendentelite and future interest @12.75olo per annum with monthly rests ftom 01.03.2022 till the date of full paymenurealization and also cost of the application.

¶144

ii) The charge of the certificate amount be kept alive on hypothecated properties, as described in Schedule-A of the Original Application till the amount is realized in full.

¶145

iii) The charge of the certificate amount be kept alive on mortgaged property i.e. A plot of land measuring 1 Bigha covered by Dag No. 572, Periodic Patta No. 74 situated at Mouza- Oakhin Rani, Village- Barjhar in the district of Kamrup (Assam) and bounded by North: Vacant Land; South: Proposed Road; East: Land of Air Port Authority; West: Pa( of Dag No.572, as described in Schedule-B of the Original Application till the amount is realized in full.

¶146

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

¶147

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

¶148

vi) 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.

¶149

vii) lssue Recovery Certificate accordingly for a sum Rs.91,49,787.06 (Rupees Ninetyone Lacs Forty-Nine Thousand Seven HundrEd Eighty€even and Paise Six) only in favour of the applicant bank against the defendants No. 1,2,3 & 4.

¶150

d^;'tsJ,u!rq,L'r' " o4-.0/ )-& ! Presioing Oftcei DRT, Guwahati

¶151

¶152

OA 1oo/2o22lDRT-Guwahati

¶153

viii) Communicate copy of this orderto the concerned^parties.

¶154

This order is dictated and corrected by the undersigned.

¶155

Judgment dated 4rh January'^{2024, signed and pronounced in the Tribunal}

¶156

today under my signature.

¶157

Copy of the JudgmenvFinal^{Order be uploaded in the Tribunal's Websiteand}

¶158

flle be consigned to Record^Room.

¶159

2L,r)[lara"- k",L* u t1 / tsr'i,^snaranoduu%f f Presiding Of[icer DRT, Guwahati.

Idbi Bank v. Shri Manmohan Sikaria

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Idbi Bank v. Shri Manmohan Sikaria

Case brief

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