Allowed

Bank of India v. Messers Asha Tant and Decorators

DRT18 Jun 2024OA/204/2023

Case brief

AI extract

What is this about?

The DRT Guwahati disposed of the application under Section 19 of the RDBFI Act, 1993 filed by Bank of India. The Tribunal allowed the application, issued a Recovery Certificate, and held the borrowers and guarantors liable for the certified debt amount with interest.

What did the court decide?

Issued a Recovery Certificate for Rs. 50,94,412.87 against the defendants with pendentelie and future interest at 12.25% per annum.

Bank of India versus Messers Asha Tant and Decorators — Banking and Recovery | DRT (2024)

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oA 2o4l2o23uoRT-cuwahsli

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IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

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(North Eastern Region)

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(Tribunal of Assam, Nagatand, Meghataya, Manipur, Mizoram, Arunachat pradesh & Tripura)

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Beforo Shri Shiv Sharan Dubev. Presidino Offtcer

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O.A. No.204/2023
lnthem.tierof- BANKOFINDIA Udalbakra Branch Rabha Bhawan,Udalbakra, Opposite Modern English School, Guwahati-781034, Assam,	Applicant
vs.
I.M/SASHA TANT ANDDECORATORS Proprietor:-Sri Sudip Majumder S/o Late Prakash ChandraMa.lumder House No.36, Bhaskar Nagar, 4hByeLan6,Pan DukanGoli, P.O.- Binovanagar, P.S.- Fatasil, District- Kamrup (metro), Guwahati, Pin-781018, Assam.
2.SHRI SUDIPIIAJUXIDER ProprietorofM/sAsha Tantand De@rators S/o Late PrakashChandraMaiumder, Alsobeingthesonandlegal heirof Late Taru Bala Majumdar, Ri/oHouse No.36, Bhaskar Nagar,4rhByelane, Pan DukanGoli,P.O.- Binovanagar,^p.S.-Fatasil, District- Kamrup (metro), Guwahati,^pin-781018.Assam.
3.SHRIDILIPAJUUDAR Beingthesonandlegal heirof LateTaruBala Majumdar, S/o Late PrakashChandraMajumder Rl/oHouse No.36, Bhaskar Nagar,4rhByelane, Pan DukanGoli,P.O.- Binovanagar,^p.S.-Fatasil, Districl- Kamrup (metro), Guwahati,^pin-781018,Assam.
4.STtNtLtfABISWAS Beingthedaughterandlegal heirof LateTaruBala Majumdar, O/o LatBPrakash Chandl.a Majumder RyoHouse No.21, Near Saint Mary'sSchoot, Maligaon, Gotanagar, Guwahati-781011, Districl-Kamrup(M),Assam,
5.STIPRATIAAJUDAR Being thedaughterand l6gal heirof LateTaruBala Majumdar, D/o Late Prakash Chandra Majumder RoHouseNo.20,NearSaintMary's Schoot, Maligaon, Gotanagar, Guwahati-781011, Oistrict- Kamrup(M),Assam.	Defendants
	"*rKf,,W

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DRT. Guwahati

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O.A 204/2023/DRT-Guwahal

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Presance of thg Counsel :

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: lvlr. Vishal Kumar Dewan, Advocate For the Applicant For the Defendants : None (Ex-parte)

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Dated:18/06/2024

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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 BANK OF lNDlA, Udalbakra Branch Rabha Bhawan, Udalbakra , Opposite Modern English School, Guwahati781034, Assam, with a prayer to issue Recovery Certificate for the sum of Rs. 50,94,112.87 (Rupe6 Fifty L.ca Ninety-Four Thousand Four^{HundrodTwelve} and Paisa Eightyseven) only as on 02.01.2023 against the defendants^with pendentelite and future interest at contraclual rale ol 12.25o/o^per annum at monthly rests from 03.01.2023 till realization along with cost and other^relief.

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A few facts^giving dse to the^present application^{are as under.}

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The Defendant No: 1 is a^{proprietorshipfirm and the DefendantNo. 2 is its} p,oprietor and they are the main Borrowers. Smti Taru^{Bala Maiumdar (since deceased} no,^r) was the mortgagor and the^{guarantorin the CashCreditAccountof the Defendant} No: 1 and 2. Smti Taru Bah Majumdar^{expired on 10.12 2020 duringthe tenure of loan.} The Defendant No: 2, 3, 4, 5^{are the legal heirs of the deceasedLate TaruBala} Majumdar.

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On 10.02.2016. the Defendant^{No:2 in the name of his proprietorshipconcem had} requested and applied to the^{Applicant Bank for financial assistanceto the tune of Rs'} 3O,0O,OOO/- by^{wayof Cash CreditLimit for the purposeof enhancementof his business} of decorators^{and giving all necessary detailsto the Applicant Bank'}

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On 03.03.2016^{the Applicant had considered the proposal of the Detundant No: 2} and sanctioned^{a CashCredit Limit of Rs 3O,OO,OOO/-to the Oefendant No: 2 in the name} of his^{proprietorshipmncem for the purposefor of his businessof decorators' on the} various terms^{and conditions As perthe terms and condition;}

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(D The rate of interest was to be charged at lhe rate of 13.85o/o p€r annum on monthly rest.

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(iD The above Cash Credit limit shall be secured by way of hypothecation of stocks of tent and decorators goods.

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(iiD The above Cash Credit Limit shall also to be secured by the equitable mortgage of the landed property standing in the name of the guarantorSmti Taru Bala Majumdar.

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(iv) The Cash Credit Limit shall also be secured against the personal guarantee of Smti Taru Bala Majumdar.

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The terms and conditions were accepted and acknowledged by the Defendant No:

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2 being the proprietor of the Defendant No: 1 and ty the Guarantor.

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ln order to avail the aforesaid Cash Credit facilities for Rs 30,00,000 , the

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Defendant No: 2 in the nam€ of his proprietorship concem had executed the following

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documents on 07.03.2016i

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(i) Promissory Note dated 07.03.2016 for Rs.30,00,000/-. (iD Loan "Beare/' Letter dated 07.03.2016 for Rs. 30,00,000/- .

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(iiD Hypothecation Cum Loan Agreement dated 07.03.2016 for Rs 30,00,000/-.

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(iv) undertaking dated 07.03.2016 for Rs 30,00,0001.

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ln oder to secure the aforesaid Cash Credit Limit, on 07.03.2016, Smti^{Taru Bala}

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Majumdar (since deceased now) had also created equitable mortgage by lhe^depositof

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title documents in favour of the Applicant Bank^{in respecl of land measuring10 lecha with}

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building thereon standing in the^{name of SmtiTaru Bala Majurndar (as morespecmcally}

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described in ScheduleB of the OA). Srnti^{Taru BalaMajumdarhad submittedthe}

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following documents to the Applicant^{Bank for creation of equitable mortgage:-}

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(i) Letter dated 07.03.2016 submitted^{by SmtiTaruBalaMajumdarto the} Applicant Bank regarding^{depositof originaltitle deed for crealion of} equitable mortgage of^{land measuring 10 lecha.}

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(ii) Registered Sale Deed No: 1153^{of Serial no.1592dated 19.02.1992in} respect of tand measuring^{1O lechastanding in tho name of Smti Taru Bala} Majurndar.

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(iii) Muiation Order dated 10.05 1993^{in favour of Smti Taru Bala Majumdarin} respect of land measuring^{10 lecha.}

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(iv) ferioaic Ktriral Patta No:^{189 dated17.07.2009in lhe nameof Smti Taru} Bala Majumdar in^{respect of land measuring 1 34 Ares le 10 lecha'}

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(v) Jamabandi Record^{d;ted 09 01.2012 showing the only name of smti Taru} Bala Majumdar^{in respesl of land measuring 10 lecha'}

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(vD Vaiuatio; report Oatea^{18.02.2016in respeci land} IngTr]ring^{10 lecha with} RCC G+1 buitdins^{standingin the nameof Taru Bala Majumdar'}

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Apart from ho^{above, Smti Taru BahMarutndar on 07'03'2016had also} personally guaranb€d^{the repayrnent of aIryoutstanding in he ablesaidCash Cl€dit:}

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rtr$ffi,P/ Prosidhg Oficar\ DRT, Guwthali

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Accour of the Defendant No. 1 for Rs 30,00,000/- along with inbrest, expenses or charges etc. incurred or to be incuned. Smti Taru Bala Majumdar had^given the unconditional and @niinuing guarantee in favour ofthe Applicant, Bank and agreed to the various terms and conditions as incorporated thereon to secure the loan account of the D€fendant No: 1 and 2.

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ln pursuance of the execution of the loan documents and security documents by the Defendant No: 2 in the name of his^{proprietorship} concem in favour of the Applicant Bank and other conditiom accepted by the Borrower / Guarantor / Mortgagor, the disbursemant of loan amounb were made to the Bono$€r / Defendant No: I by the Applicant Bank. A Cash Credit Account waS opened in the name of Ws Asha Tant and Decorators vide Account No: 503130110000053 and the account was being op€rated by its Proprietor^(Sri. Sudip Majumde0 the Defendant No: 2. The Bonor €r / Defendant No:^'1 representad by its proprietor had availod the Cash Credit facilities from time to time and such transac,tions were duly recorded in the books of account maintained by the Applicant Bank in the usual and ordinary course of their banking businass.

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During the^period of Covid 19 Pandemic the Defendant No. 2 in the name of his proprietorship @ncem on 19.06.2020 applied for Term Loan of R8. 6,00,000 under GECL to the Applicant Bank, to meet the operating liabilities and to restart the oprations of the unit.

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On 19.06.2020 the Applicant had sanctioned the Term Loan of Rs. 6,00,000/-

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under GECL in bvour of the Oefendant No. 1 on the following terms and conditions:-

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(i) The Term Loan shall carry interest at the rate of 7.8506^per annum at monthly rest, subiec-t to changes ftom time to time. (iD The Term Loan shall have to be repail in 36 equal monthly installments of Rs. 18,761/- per month. There shall be a 12 months moratorium period. (iiD The Term Loan shall be primarily s€cured by the hypottEcation of stocks (same as original sanclion). (iv) lt shall b€ collaterally secured by the ECLGS guarantee.

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The Oefendant No. 2 in the name of his proprietoBhip frm had executed the

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follorrring documenb in favour of the Applicant. Bank on^{'19.06.2020:-}

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(i) Promissory Note dated 19.06.2020 for Rs 6,00,000 . (iD Loan "Bearer Letter dated 19.06,2020 lor Rs 6,00,000/-. (iiD lnstallment Letier dated 19.06.2020. (iv) Hypothecation-cum-Loan Agreement dated 19.06.2020 for Rs 6,00,0001. (v) Letter of Undertaking dated 19.06.2020 for Rs 6,00,000^.

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Shl Presiding Oli"ce DRT, Guwaha

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O A 204/2023lDRT-Guwahaii

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(vi)

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(vii) RBLR Agreement dated 19.06.2020 for Rs 6,00,000/-.

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Draft Declaration dated 1 9.06.2020.

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On 19.06.2020 Smti Taru Bala Majumdar also^{gave the unconditionaland} mntinuing^guarantee in favour of the Defendant.^{No. 1 for the Term Loan of Rs.} 6,00.000

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ln pursuance of the execution of the loan documenE^{and seallitydoqJm€ntsby} the Defendant No; 2ⁱⁿ the^{name of his proprietorshipconcemin favour of the Applicant} Bank and other @nditions accepted^{by the Bonower / Guarantor,the dbbulsementof} loan amount was made to the Bonower /^{DefendantNo: 1 by the Appli:ant BankThe} GECL Term Loan^{Accountwas opened in the name ofI\rVsAsha Tant andOecorators} vide Account No: 503170410000025^{and the ac@unt was being operatedby its} Proprietor (Sd. Sudip Majumder) the^{Defendant No: 2. ThaBonower/ DefendantNo: 1} repr€sented by its^proprietor had availed^{the TermLoan facilityand such tEnsaclions} were duly recorded in the books of account^{maintainedby the ApplicantBankin the usual} and ordinary course of their banking^business.

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Again on 31.08.2020 the Defendant^No. 2^{in the name of his proprietorship} concem requested the Applicant^{Bankto convertthe irterestaccruedin the cash credit} account No. 503130110000053^{into another ac@untas FTTL,for availing relief under} COVID 19 Regulatory Package.

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The Applicant Bank again considered the^{requestof the DerendantNo. 2 and} transfered the accrued interest of Rs.^2,10,918/- to the^{FITL Account No.} 503165810000063. The said FITL Account^was to^{carry interest at the rate of 13.15%per} annum with monthly rest. The Defendant^{No. 2 in the name of his proprietorshipfirm} executed the following documents in favour ofthe Applicant Bank on 31.08.2020:-

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(i) Promissory Note dated 31.08.2020 for Rs. 2,10,9181. (ii) Agreemont of Funded lnterest Term Loan (FITL) dated 31.08.2020 for Rs. 2,',to,g'tu-.

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But affer some time it was obsarved that the Cash Credit Account became irregular. The Bonower failed and/or neglesled to operate the Cash Credit Account

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properly as per the tems and conditions of sanc{ion and the loan documents, the

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-sl^n Presiding ORT, G

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opeE ions were very less, the interest charged in the accounts tlere not served regularly, the transac{ions tvere very less in the account, followed by non_6ubmission of stocks as v\€ll as financial sbtemenE, non-submission of necessary documents for renewal of cash credit limit, the transaclions in the account were not at afl sarisfacrory, folowed by nondeposit of outstanding dues in the accounts and oefendanb faired and / or negrected to regularize the position in the accounb inspite of rep€ated requests, remindsrs of the Applicant and also on personar approaches made by the Bank. The Bonower arso faired to pay the installrnents and interesb in the Term Loan accounts.

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Various measures were initiated viz. visits, p€rsonal discussions and through letters and phone, to re@ver the outstanding dues. However, no payment came forth. The Applicant gave many opportunities and requested many times to the Defendant No: 2 for the repayment of the outstanding dues but the Defendant No: 2 did not show any interest in keeping his own commitrnents to crear the dues in the cash credit Account, FITL account and GECL Term Loan account and all previous promises tumed out to be false and on the other hand the interest load were increasing day by day.

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D€spite of regular requesb and follow ups by the Applicant Bank, the Oefendant No: 2 was neither operating ihe ac@unts properly nor vyas he reguladzing the overdue amount in the Cash Credit Account, FITL Account and GECL Account. The Defendant Noi 2 every time gave false assurances and did not keep his words. The Defendant No: 2 did not take any lnitiative to make the accounb pedoming and moreover the st@ks were not available to cover up the entire liabilrty. As a result, thereon the aforesaftj Cash Credit Account, FITL Account and GECL Account were classified as NpA (Non-performing Asset) on 31.03.2021 as per the Guidelines of Reserve Bank of lndia because of non_ payment of interest and pdncipal amount, non-regularization and non{enewal of all the loan accounts.

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From tima to time, the Defendant No. 2 in the name of his propri€toBhip concem had acknowiedged the Debt and Secunty in favour of he Applicant Bank and confirmed the coreclness of outstanding balance in the aforesaid loan accounts.

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ln the rneantime the Applicant Bank from the SARFAEST Application No: 802021 Iiled by the Defendant No: 1 and 2 and others came to know that Smti Taru Bala

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Il;Pfls.

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Presiding Oflic€

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Majumdar who was the Guarantor and Mortgagor has expird on^10.12.2020 dunng the tenure of loan and the Oefendant No: 2, 3,^4, 5 are the^{legal heifs of the deceasedLate} Taru Bala Majumdar. Th€ Applicant therefore called upon the legal heirs of the deceased Guarantor / Mortgagor for making the repayment of the dues. But^{the Applicantfailedto} get any response from all them. The Defendant No: 1 and 2 being the Bonower are already a main^party in this Original Application.^{The Defendant No: 3,4 and 5 are also} made a necessary^party in this Original^{Application beingthelegal hei13 of deceas€d} Guarantor/ Mortgagor Late Taru Bala Majumdar.^{The Oefendant No: 3,4 and 5 are also} well aware that the account of the Defendant^{No: 1 and 2 has tumed lnto NPAbut no} steps have been initiated by them to regularize the account^{or clear the dues.}

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The Defendants are still.ioinly and/or severally^{liable to paythe outstandingdues} in the said Cash Credit Account^{withinterest and other chargesto the ApplicantBank,} amounting to Rs. 32,70,145.72 with^{interestcharged upto30.03.2021as per the} accounts maintained by the Applicant^{Bank in the usualand ordinary course of the} Banking Business. The Applicant is also entitled to un-charged interest in the aforesaid account from 22.03.202'l lo 02.01.2023 amounting to Rs.8,12,385.05. Hence the Deiendanb are iointly and severally liable io^pay the total oubtanding dues amounting to Rs 40.82.530.77 as on 02.01.2023 in the Cash Credit Account No: 5031301 10000053.

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The Defendants are also^joinuy and/or severally liable to^pay the oubtanding dues in the GECL Account No: 503170410000025 with inteGst and other charges to the Applicant Bank, amounung to Rs 6,39,022.88 with lnterest chaEed upto 30.03.2021 as per the accounts maintained by the Applicant Bank in the usual and ordinary course of the Banking Business. The Applicant is also entiued to un-charged interest in the aforesaid account fto.n 31.03.202'l to 02.01.2023 amounting to Rs. 95,555.09/-. Hence the Defendants are^jointly and severally liable to^pay the total outstranding dues amounting to Rs. 7.34.577.97 as on 02.01.2023 in the GECL Account No: 503170410000025.

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The Defendants are also^jointly and/or severally liable to pay the outstanding dues in the FITL Account No: 503165810000063 with interest and other charges to the Applicant Bank, amounting to Rs 2,20,391.07 with interest charged upto 31.03.2021 as

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p€r the accounb maintained by the Applicant^{Bankin lhe usual and ordinary course of} the Banking Business.^{The Applicant is also entitledto un-charged interestin the} aforesaid accounl^{ftom [email protected] O1.2023amountingto Rs.58,285 06 Hencethe} Defendants are^jointly and^{severally liable to paylhe total oubtanding dues amountingto} Rs. 2,78,676,13 as on^{02.01.2023in the FITLAccount No: 503'165810000063'}

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Therefore the Defendants^{are jointlyand severallyliable to pay thetotal} outstanding amount of^{Rs. 50,94,4'1287 as on 0201 2023 which includesRs'} 40,82,530.77 ot Cash Credit^{Account plus Rs7,34,577.97of GECL Account plus Rs'} 2,78,676.13 of FITL^{Account as on 02.012023 minus Penal lnterestof Rs 1,372 charged} in the Term Loan^Accounb.

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The applicant bank thus^{becam€ constrainedto file the present Original} Application for the recovery^{of Rs. 50,94,412.87(Rupees Fifty L.ca Ninety'Four} Thou3.nd Four Hundrod^{Twelveand Paisa Eighty€oven) only as on 02 01 2023} along with interest and^{mst of the application}

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After liling of the OA the^{Tribunal issued notice upon thedefendants through} registered^post and^{the applicant bank filed service reporton 09.08.2023 and brought} on record the^{postal leceiptalongwith trackconsignment reportwhich shows that the} notices have been served^{upon the defendants No. 1,2 & 4 and noti@s have not been} served upon the defendants^{No. 3 & 5. Thereaftsrthe Tribunal ordered paper} publication of notice upon the defendants^{No. 3 & 5 and tha applicantbank} issued notice to the^{defendantsNo.3 & 5 throughPaper Publicationin two} newspapers namely'Iha^{San,inel'and "DainikAsom" both dated09.09.2023. Even} after^proper seNice^{of notices upon the detendants No. 1, 2 & 4 and even after issuing} notice through^{paper publication upon the defendantsNo. 3 & 5 there has been no} representation on behalf of the^{defendants No. 1,2, 3, 4 & 5 eitherby the counselor} the^person and^{hencethe defendantsNo. 1, 2, 3, 4 & 5 werc set ex-parteon} 19.02.2024 and the matter^{waspostedfor ex-parte hearingon behalf of the applicant} bank.

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Supporting the claim of the applicant bank Sri Angom Ramchandra^{Singh, Chief} Manager of lhe Applicant^Bankhas filed evidence on affidavit coupled with the

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Presiding

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s€curity documenb marked as Exhibit A.1 to A43, 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 defendants 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 defendants and also execution of iheir 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 document 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 defendants are liable to^pay to the applicant bank the claim made in the Original Application. The loans were obtained and documents have been executed on 03.03.2016, 07.03.2016, 19.06.2020 & 31.08.2020. Letter of Acknowledgement of Debt and Security are dated 06.03.2019 & 05.03.2022. The accounts became NPA on 31.03.2021 and the OA has been filed on 06.06.2023. 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 unohallenged/unrebutted version of Sri Angom Ramchandra Singh, 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 mainiained 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. 204 ot 2023 is ellowed with cost as under :-

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The defendant No. 1, 2, 3, 4 & 5 are^jointly and severally liable to pay to the applicant bank a sum of Rs. 50,94,4'12.87 (Rup.* Fifty Leca Ninety-Four Thousand Four Hundred Twelve and Paisa Eighty€even) only with pendentelite and future inletesl @12.25o/o per annum with monthly rests from 03.01.2023 till the date of full paymenurealization and also cost of the application.

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O A 20412023/ORT-Guwahati

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The liability of the defendants No. 3, 4 & 5 will be to tha extent of value of their shares inherited in the mortgaged property as legal heirs of deceased Late Taru Bala Majumdar but their liability will not exceed the certificate amount, with interest and cost.

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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 realized in full.

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iii) The charge of the certjticated amount be kept alive on mortgaged property i.e. Land measuring 10 lecha with building covered by Dag No. 29 (old) / 310 (New) of Patta No. 24(old) / 189 (New) situated in the r6vanu6 villageBarsapara under mouza - Beltola, in the district of Kamrup (metro), Assam(valued Rs. 37,90,000/- as on 25.04.2019) standing in the name of Mrs. Taru Bala Majumder (since deceased now) vide Registered Sale Deed No: 1153 of Serial no. 1592 dated 19.02.1992 which is bounded byi North:Mrs. Prativa Paul; South: Mr. Hemchandra Barai & Mr. Anil Roy; East: Mr. Manik Biswas; West{ feet wide road.

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Excluding the Flat measuring 690 sq fl super built-up area on the western^portion of the first floor of the RCC building standing over the above mentioned land owned by Smti Namita Ghosh with proporlionate share of land measuring 0.32 Ares., as described in Schadule-B of the OA tilt the amount is realized in full.

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

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

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vi) The applicant bank is entitled to the costs of the O.A. which includes the advocate fees of the applicant bank. Applicant is directod to lite the cost memo within 2 weeks from today.

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vii) lssue Recovery Cedmcate accordingly for a sum R3. 50,94,a12,87 (Rup€es

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Fifty Laca Ninety-Four Thousand Four Hundrsd Tyvelye and Paisa Eighty€even) only in favour of the applicant bank against the defendants No. 1,2,3,4&5.

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A,lA,^l wr

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O A 204t2023/ORT-Guwahat

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

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This order is dictated and corrected by the undersigned.

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Judgment datBd^'l8h June'2024, signed and pronounced in the Tribunal today

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under my signalure.

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Copy of the JudgmenuFinal Order be uploaded in lhe Tribunal's Website and

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file be consigned to Record Room.

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sl^,td*,ppffi (Shiv Sharen d[{evl I^'U Pre3iding Offider DRT, Guwahati

Bank of India v. Messers Asha Tant and Decorators

Case brief

What is this about?

What did the court decide?

Bank of India v. Messers Asha Tant and Decorators

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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Case details

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