Allowed

Idbi Bank v. Shri Jayanta Sharma

DRT16 Aug 2024OA/151/2022

Case brief

AI extract

What is this about?

The Guwahati DRT allowed an Original Application filed by IDBI Bank for recovery of Rs. 25,76,795.02 on an Ex-Parte basis. The creditor established a valid loan agreement, demand notices, and the defendant's failure to respond to service. The recovery certificate was issued with interest and attachment of security.

What did the court decide?

Recovery Certificate issued for Rs. 25,76,795.02 plus pendent and future interest at 15.25% per annum, with costs, and charges kept alive on hypothecated and mortgaged properties.

Idbi Bank versus Shri Jayanta Sharma — Company and Corporate | DRT (2024)

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O A^{15lr2O2ZORTGuwahati}

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IN THE^{DEBTS RECOVERYTRIBUNAL,GUWAHATI}

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(North Eastern^Region) (Tribunal of Assam,^{Nag"f"na, tuitgh"l"v"'M"nrpur'Mizoram'Arunachal Pradesh & Tripura)} P res idinstqf!.9.9l Betore SirLEX!vS!.aI?i!!.Ug

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O.A. No.^151/2022

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ln the mattsr^of -

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IDBI BANK^LIMITEO Panbazar Branch, Satven Niwas,^{M.G Road.} P aibazar. Guwahati-78'1⁰⁰¹

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Applicant Vs.

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SHRI JAYANTA^SHARMA Proprietor^{of M/s Minu Enterprise} S/o Late^{Debitam Sharma}

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Fro Manasha^{MandirBYeLane'} .t^p- noarwata^{Road.P.O& P'S' Bharalumukh'} cuwah;ti-781009,^{oistrict-Kamrup(M), Assam} oelendant

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Pre3ence^{of the counsol:}

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: Mr Gitartha^Das, For the Applicant Mr Chandan^{Kalita,Advocates}

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For the Defendant None^(Ex-Parte)

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Dated :16/08/2024

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JUDGMENT

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This is an application^{under section 19 of the Recoveryof DebtsDue to} Banks and Financial^{lnstitutionsAct, 1993 filed by the lDBl BANKLIMITED'} Panbazar Branch,^{Satyen Niwas,M.G Road, Panbazar, Guwahati-781001'with a} prayer lo issue Recovery^{Certificate for the sum of Rs' 25'76'795'02p(RuPees} Twenty-Five Lacs^{Seventy'Six ThousandSevenHundred Ninsty-Fiveand Paisa} Two) only as on^{g1.Og.2022against the defendantwith pendentelite and future} interest @ contractual^{rates till realization along with cost and other relief}

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A rew racts sivins^{rise to the present applicationare as under.}

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"*#fUfr"?DRT, Guwahati

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O A 1512022ORT€Mhati

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A. Cash Credit^{Limit of Rs. '10.00 Lakhs}

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Pursuant to the^{request of the defendantfor cash credit limit'the applicant after} considering his^{request sanclioncash creditlimil of Rs10 00 Lakhs only vide sanclion} letter dated 31.01.2012,^{subject to acceptan@ of the terms and conditionsset forth} therein by the^{defendant. As per the said sanclionletter the defendant is requhedto pay} interest @BBR^{+ 4.75o/o} P.a.^{('15 25% at that relevanttime) payable everymonthlyThe} cash credit limit^{is for one year and repayableon applicantsdemandThedefendant} accepted the terms^{and conditions of the said sanc{on letter 31 01 2012 by duly signing} and retuming the duplicate^{copyof the said sanclionletter'}

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ln order to avail the Cash^{CreditLimitof Rs.'I0 00 Lakhsthe defendantexecuted}

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the following^{loan & securitydocuments:-}

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a. Demand Promissory^{Note dated 01 02.2012.}

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b. Hypothecation^{Agreement dated 01.02.2012.}

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c. Guarantee Agreement^{dated 01.02.2012.}

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d. Undertaking dated^0'1.02.2012.

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e. Undedaking to seate^{Mortgage/charge dated 0'1.02.2012-}

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After executing all the^{loan and security documentsthedefendant availed the} entire cash credit limit of^{Rs 10.00lakhfrom the Applicant bank.}

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B, Renewal and Enhancement^{of Ca3h Crsdit Limit upto Rs. 25.00lakh3}

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Pursuant to an application tor^{loandated Nil by the defendantfor renewal and} enhan@ment of the Cash^{Credit limit upto 25 00 Lakhs,the applicant afrer considering} his request sanction cash^{crcdit limit of Rs 25.00 Lakhs vide sanclion letterdated} 31.12.20'12. As^{per the said sanctionletter,the defendantis required to pay interest at} BBR⁺ 4.50%^{p.a. (BBR} was^{10.50% p.a. at thatrelevanttime) monthly wise. Thesaid} limit is for one^year and repayable^{on applicanfsdemand.The propertyhypothecated} earlier is also extended to tha said^{limit.The defendant also agreedto create equitiable} mortgage of his immovable^{property at Dakhin Jalukhari measuring2 kathapurchased} from Allahabad Bank. The detendant^{accepted the terms and conditionsof thesaid} sanclion letter 31.12.2012 by duly signing^{and retumingthe duplicatecopy of thesaid} sanction letter.

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ln order to avail the Cash Credit Limit upto Rs.25.00 Lakhs the defendant

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executed the following loan & security documents^:-

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2rI4.^[,], [ oRT, Guwahall

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-(^[,],

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O.A 151zo2?foRT-Gumhaii

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Oemand Promissory Note dated 31.'12.2012. Take delivery letter to DPN dated 31.,12.2012. Continuing Security Letter dated 31.12.2012. Letter dated 31.12.2012 executed by the defendanl . Hypothecation Agreement dated 31.12.2012.

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Guarantee Agreement daled 31.12.2012.

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Undertaking daled 31.'12.2012 by the defendant to route all the receivablesi/ sales proceeds through the CC Account maintained with the applicant bank. Leiter dated 31.12.2012 by the defendant authorizing the Appiicant Bank to set off on all operative accounts.

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Undedaking. dated 31j22012 by the defendant regarding no litigation is pending against him etc.

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Afler executing all the loan and security documents the defendant avalled the cash

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credit limit upto Rs. 25.00 lakhs from the Applicant bank.

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As per the sanction letter dated 31.12.2012 the defendant was required create equitable mortgage of his immovable property measuring 2 katha covered by Dag No.34(0)/193(N), Patta No.28(O)/47(N) situated at Mouza- Jatukbari, Vilage Dakhin Jalukbari (Schedule -B of the OA). The lmmovable prop€rty was purchased by him from Mr. Shabi Ahmed (loan of A/c Taam Computers) through public auction for an amount of Rs 3,51,1'11^ ftom Allahabad Bank, Panbazar Branch. Thereafter he applied for permission to the Deputy Commissioner for transfer of land to his name. But the defendant did not come fomard anerwards to deposit the original ti{e deeds. However,

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the defendant has depogited Xerox copies of documents as follows:-

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a. Oeed of Sale No.28F,2.002.

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b. Mutration Certificate dated 07.04.2003

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c. NEC no. 227 dated 20.220.M

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d. Affdavit by Mr. ShabiAhmed dated 27.02.2004.

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o. Land Revenua payment Eceipt dated 13..,,1.2003.

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f. Ap?lication to D€puty Commissioner d aled 24.04.2012 by tte defendant. g. Affdavit dat€d 12.08.20,13 by the defendant.

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The applicant stated that since there was an intention of the defendant to secure

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lhe loan by creating morigage of his property the applic€nt is having charge over the said immovable property.

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C. Ronexr.l of the cash crrdit timit of Rs, 25.00 Lakhs.

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Pursuant to the furlher request of the defendant for ranewal of the cash credit limit, the applicant afrer considering his request renewed the cash credit limit of Rs 2s.oo Lakhs for another year vHe sanclion retter dated 20.02.2014. As per the said sanclion letter, the defendant is required to pay lnterest at BBR + 2.75% p.a. (BBR was 10.25%

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#"*mnrt

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0 A^{1512022oRT€wahatl}

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p.a. at that relevant^{time) monthly wise The said limitis for one year and repayable on} applicants^{demand Theproperty hypothecated earlier is also extendedto the saidlimit} besideslienofFDsandAssignmentofLlcPolicies'Thedefendantacceptedtheterms and condi(ons^{of the said sanclionletterdated 20 02 2014 by duly signing andretuming} the duplicate^{copyof the saidsanclionletter'}

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ln order to^{avail therenelvedCash Credit limit of Rs 25 00 Lakh the defendant}

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executed the^{following loan & securitydocuments:-}

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a. Demand^{Promissory Note dated 20 02 2014executed by defendant}

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i. o"rana Promissoiy^{Note DeliveryLetter dated 20'022014 executed by} defendant.

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c. Supptemenet^{HvpothecationAgreemen!-d-"|d20} 92?!11:- .^.

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o. collinring^{s"",;tih/Letter dated 20 02 2014executed by thedefendant} L Cor.on-Ou"r"nt6e^{OeeOOat"a ZO O2 2014executed by defendant}

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i.' u"o"tt"ii"g t"^{be tumished by the Personal guarantordated20 022014} executed^bY defendant.

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g. U"d",i"ii"g iatd^{2O.O22O:r4by the defendantthat no litigationis pending} against him.

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n. "' lltter dated 20.02.2014^{by the defendant wherebyhe endorsedthe security} inio tn" name of^{the Bink. He further authorizedthe applicantbank to} a|ilr"te^{the proceedsof the security including renewed term deposits} i&ipt *itn int"rd"t^{on or before their maturitytowards liquidationof dues'}

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i. unddrtafing^{of Negative Lien dated 20 02 2014executed by the defendant'}

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After executing all^{theloanand security documentsthe defendant continued to}

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avail the cash credit^{limitof Rs 25.00 lakhs ftom the Applicantbank'}

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Cash credit^{limit of Rs 25OO lakhswasrenewedon 28122017It wasfurther} renew€d on 29.06.2019.^{The property hypothecated earlier is also extendedto the said} limit besides lien^{of FO and Assignmentof LIC Policies The defendant accepted the} terms and conditions of^{the sanc{ion letters dated 28.122017 and29 06 2019 by duly} signing and retuming^{the duplicate copyof the saidsanclion letters'}

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After executing^{all the loan and security documentsthe defendant continued to} avail the cash sedit^{limitof Rs 25.00 lakhs fromtheApplicant bank'}

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The defendant enjoyed^{the benefibof the cash qedit limitbut was never regular} towards repayment^{of loan(s) procured under the relevant loan and security documents} executed by him. On^{29.'12.2020theCash CreditAccount no. 0115651100000091of} the defendant became^{NPA. On 08.06.2019 the defendantsubmitted his Stock and Book}

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:#fr?'f'il' DRT, Guwahati

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o.A 151zo2zDRr-cu*anar

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Debb Statement for tha month of May, 20.19. At that time the defendant was having stock of Rs 16.50 Lakhs.

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On 0'1.12.2021 and 15.02.2022 the Appticant issued demand notice and Guarantee invocalion notice to the defendant asking him to dear his outstanding dues, bul there were no response from the defendant against those notices. The said notices daled 01.122021 and 15.02.2022 was sent by regd. post Iy'D to the proper addresses of lhe detendant.

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As on 31.03.2022 there is an outstanding due of Rs. 25,16,Z}5.02 in the Cash Credit Account no, Ol l 56O110OO0OO91 ofthe defendant. The said amount is afier waiver of total penal ir(erest of Rs. 47,969.32. A duly ceniried copy of the defendant Statemenl of Account upto 3,l.Og.2OZ2 as maintained by the Applicant in their ordinary and usual course of business is filad as Applicant,s document which forms part of this application as Annexure - 41. Annexure - 41A is the Certific€te Regarding waiver of penal Inbrest.

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It is submitted that interesls,/compound intel.esls have been charged at such rates and capitalized at such periodical rests, as are permitted by and do not run munterto, the directives of the RBl. The outstanding due of the defendant as clairned in the Original Application is afier adjustrnent of FDs and LIC policies.

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On 08.03.2019 and 24.09.2020lhe delendant executed the balance confirmation letters. Further on 29.06.2019 and 31.03.2020 the defendant executed acknowtedgement of debts and confirmation of security.

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The applicant bank thus became constrained to file the present Original Application for the recovery of RB. 2S,76,79S.02p (Rupees Twenty-Fivo Lacs Sovsnty€ir Thou3and Seven Hundred Ninety.Fivo and Paisa Two) only as on 3'1.03.2022 along with interest and cost of the applicatjon.

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After fiting of the OA the Tribunal issued notice upon the defendant through regislered post and the applicant bank filed service reporl on 14.O6.2O2Zand brought on record the postal receipt along with track consignment report which shows that the notice has not been served upon the sole defendant. Therearter the Tribunal ordered for issuance of notice upon the sole defendant through ,dasf,service and the applicant bank issued notice to the defendant through ,dasri, service and filed service

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-SI'd

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o.a. 15rzo22lDRlcsahdi

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report on 01.08.2022 which shows that the notice has been served upon the sole defendant. Even after issuing notice through 'dastl'service upon the sole defendant there has been no representiation on behatf of the sole defendant sither by the counsel or the parson and hence the sole defendant was set ex-parte on 12.08.2022 and his right to file writlen statement cum evidence on affidavit was closed. Thereafter 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 Smt Bharti Maheswari, Assistant General Manager of the Applicant Bank has filed evidence on affdavit coupled with the security documents marked as Exhibit AW-1/1 to AW-1/45, 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 Certiricate against the defendant as per pleadings made in the Application, supported by evidence on aftidavit of their witness who affirmed on oath the execulion of the security and other document 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 applicant 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 loans were obtained and documents have been executed on 01 .02.20'12, 3'1.12.20'12, 20.02.2014, 28.12.2017 , 29.06.2019. Balance Conlirmation Letters are dated 08.03.2019 & 24.09.2020 snd Acknowledgement of Debts and Confirmation of Security are dated 29.06.2019 & 31.03.2020. The accounts became NPA on 29.12.2020 and the OA has been filed on 29.U.2022. Hence, the OA is liled 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 Smt Bharti Maheswari, the applicant's witness and all the documenls markgd as exhibits, including duly cerlified copy of the statement of account along with interest calculation sheet

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hrrlr4 sJd^/d,o'l.a" \a ,,""'o"n#&tl DRT, Guwahali

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O.A.¹ 51202ZORT4uwahalr

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maintained by the applicant^{Bank in it's regular courseof business,I holdthat the} applicant is entitled to^get tha^{Recovery Certificate as prayed for'}

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ln the result, the^present Original Application^{No. 151 of 2022is allowed with} cost as under i

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i) The sole defsndant is liable to^pay to the^{applicant bank asumof} Rs. 25,76,795.02p^{(RuPee3Twenty.Fivo Laca Sevonty€ix Thousand} Sevsn Hundrod Nlnety-Five^{and Palsa Two) onlywith pendenteliteand} futura interest @15.25Yo^{per annum with monthly rests from 0104.2022 fll} the date of full^{paymenurealization and also costof the application.}

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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 realizedⁱⁿ full.

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iii) The charge of the certificated amount^{be kept alive on charged property i.e. A} plot of land measuring 2 katha covered by Dag No.34(0)/193(N),^Patta No.28(0)/47(N) of situated^{at Mouza- Jalukbari,Village Oakhin Jalukbariin the} district of Kamrup^(Assam) and^{boundedby:- North: WideRoad; South:35} No. Dag; East: Vendois Land/ Md.^{Mantaj All & Md. Gofar All; West:Vendo/s} Land/ Md. Mantaj Ali & Md. Gofar^{All, as describedin Schedule-Bof the OA till} the amount is realized^{in full.}

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iv) The applicant bank is entitled^{to proceed against thesecured items towards} recovery of the debts.

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v) The applicant bank is also^{entitledto proceed againstthe personal assets and} properties of the defendant towards recovery of the dues.

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vi) The applicant bank is entitled to^{the costsof the O.A. whichincludesthe} advocate fees of the applicant bank.^{Applicantis directed to file the cost} memo within 2 weeks from today.

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vii) lssue Recovery Certificate accordingly^{for a sum Rs.25,76,795.02P (RuPees} Twenty.Fivs Laca Soventy-Six^{Thousand Seven HundrsdNinsty'Five} and Paba Two) only in favour of the^{applicantbank against the sole} defendant. fu r/.A&r.

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fu r/.A&r. hub,l ul A ,,"ro,"nJhBfll ORT. Guwahati

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T-

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g.a. 151/2o2z4rRr€w.hati

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yiii) Communicate copy of this order to the concemed parties.

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This order is diclated and conected by the undersigned.

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Judgment dated 16b August 2024, signed and pronounced in the Tribunal

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today under my signature.

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Copy of the JudgmenuFinal Ordar be uptoaded in the Tribunal's Website and

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file be consigned to Record Room.

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,.*,'ff4f( Prssiding Officer DRT, cuwahati.

Idbi Bank v. Shri Jayanta Sharma

Case brief

What is this about?

What did the court decide?

Idbi Bank v. Shri Jayanta Sharma

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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