This is an application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The Tribunal allowed the application and issued a Recovery Certificate for Rs. 33,91,853.60 against the respondents.
Issuance of Recovery Certificate for Rs. 33,91,853.60 against respondents No.1, 2 & 3 with future interest.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
o.A. 251/2022lDRT€uw.h.ti
IN THE DEBTSRECOVERYTRIBUNAL,GUWAHATI
(North Eastern Region)
(Tribunal of Assam, Nagaland,Meghalaya, Manipur, Mizoram,Arunachal Pradesh& Tripura)
O.A. No. 261/2022
ln th6 matter of - UCO BANK Charali Branch, Biswanath Chariali,P.O. Charali, District- Biswanath,Assam-7841 76.
..Applicant
Vs.
Defendants
Preaence of the Coun3al:
: For the Applicant
Mr. Mukesh Sharma, Ms Ellora Bharali. Advocates
Ms. Anannya Gogoi,Advocate (Right to file WS cum EA closed) Oaled :2610812024
JUDGMENT
This is an applicationunder section19 of the Recoveryof Debts Dueto Banksand Financial lnstitutions Act, 1993 tiled by the UCOBANK, Charali Branch,BiswanathChariali, P.O. Charali,Diskict-Biswanath, Assam-784176, with aprayer to issueRecovery Certificate for the sum of R3. 33'91,853.60 (Rupees
Thirty-Three L.ca Ninety-OneThousand Eight Hundred Fifty'Throe And Paisa
SL;
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Slrty) only as on 30.06.2022againstthe dafendantswith pendenteliteand future
interest till realization, alongwith cost and otherrelief.
A few factsgiving rise tothe present application are as under'
The Defendant No.1 is aProprietorship Firm and the Defendant No.2 is the Proprietor of DefendantNo.1. The OefendantNo3 is the Guarantoras wellas Mortgagor to the creditfacilities availedby tha DefendantNo.1
The DefEndantshad approachedthe ApplicantBankand appliedfor financial assistance by submittinga LoanApplicationdaled 17.O2.20'18for theiragricultural business. And in considerationof the said application, the applicantbank on 27.06.2018 had sanctioneda Term Loan of Rs. 19,19,000/- with interest @9.70% (MCLR+1.15%)per annum athalf yearly rests or at such other rate as may be prescribed by HO/RBI from time to time tothe defendants.The TermLoanwas repayable in 84 equalmonthly installmentsof Rs 31,37s^only
The Defendants hadacceptedall the terms and conditionsof the sanction, accordingly in connectionwith the sanctionof the aforesaid Term Loan of Rs.19,19,OOO! sanctionedby the applicant bank and availedof by the Oefendant No.l, the Oefendant No.2as proprietorof Delendant No.1, had executeda Demand Promissory Note(A-1) forRs. '19,'19,000/-only, a Letterof Waiv6 presentment (A-47), a Deed of Hypothecation cumAgreementfor Agricultural Loans and an Agreement relating toTerm Loan all dated 27.06.2018,thereby promisingto paythe Applicant Bank theentire loan amounton demand.
ln connection with the sanctionof the aforesaid TermLoanof Rs 19,19,000 sanctioned by the applicantbank and availedof by the Defendant No 1, the Defendant No. 3 stoodas personal guarantorto the aforesaid term loan by signing and executing a Letter ofGuarantee dated 27.06.2018as security for repaymentof the abovementionedloan availedby theDefendantNo. 1, thereby accepting all the tems and condition contained therein.
Further the aforesaid loan was secured by creationof Equitable Mortgageof the immovableproperties by OefendantNo.3 being All thatpiece and parcel of land measuring 3 Bigha 1 Katha coveredby Dag No. 620 of Pafta No.74 of village
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Rotowa Pathar under Mouza - Baghmara in the Oistrict of Biswanath, Assam-784176 (more specifically described in Schedule-A of the OA) and All that piece and parcel of Land measuring 2 Bigha 2 Katha 6 Lecha covered by Oag No.725 of Patta No.42 of villaga Rotowa Palhar undor Mouza Baghmara in the District of Biswanath, Assam- 784176 (more specitically described in Schedule B of the OA) by deposit of Title Oeeds, as security for rapayment of the abovementioned loan availed by Defendant No.l. Accordingly, tha Oefendant No.3 had deposited the following documents for creation of equitable mortgage in favour of the Applicant Bank and confirmed the same by executing a Draft of letter of undertaking and Confirming Letter both datsd 28.06.2018.
The Defendant No.2 as Proprietor of DefendantNo.1 againapplied for a cash credit facility of Rs.8,00,000/- by submitting aLoanApplication dated 30.01.2019for their agriculturalpurposes. ln consideration of the said application, theApplicant Bank on 0'1.02.2019 had sanction a cash creditfacility ofRs.8,00,000^ tothe Oefendant No.1 with a minimum rate of interest @ 11.85o/o(MCLR+3.1570)per annum. The cash credit loan was repayable on demand. lnconsideration of sanctioning the aforesaid cash credit facility of Rs.8,00,000/- only, the Defendant No.2 as Proprietor of Defendant No, I had executed a Hypothecation cum Agreement for Agricultural Loans, a Hypothecation of Goods to secure a demand cash credit and a Letter of waivepresentment both dated 01.02.2019in favour of the Applicant Bank.
ln connection with the sanction of the aforesaid cash creditfacilityof Rs.8,00,000/- sanctioned by the applicant bank and availed of by the Defandant No.1, the Defendant No. 3 stood aspersonal guarantor to theaforesaid cashcredit loan by signing and executing a Letter of Guarantee dated nil as securityfor repayment of the abovementioned loan availed by the Defendant No. 1, thereby accepting allthe terms and condition contained tharein.
Further the aforesaid cash credit facility of Rs.8,00,000/- was secured by way of extension of equitable mongage of the immovableproperlies of Defendant No.3
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by deposit of title deeds deposited on 29.06.20.18 with the Applicant Bank for the Term Loan of Rs 19,19,000/- availed by the Oefendant No. ,1. The Oefendant No.3 by exacuting a draft retter dated 01.02.2019 had confirmed the creation of the mortgage.
As the Defendants failed and neglected to repay the outstanding liabilities to the Applicant, the Loan accounts of the Defendants became NpA on 31.12.2019 as per the guidelines of Reserve Bank of lndia. As such, the Applicant gank vide Recall Notice dated 01.01.2020 recall the entire outstanding balance within 7 days of receipt of this notice. The Defendant No.2 as propriotor of Defendant No,1 promised to regularize the loan accounts, but failed to do so. Thereafler, the Applicant again vide demand notice dated 28.10.2020 and 30..11.2020 rcspectively requested the defendants to repay the entire outstanding dues within 15 days from the date of receipi of this notice, but lhe Defendants failed and/or neglected to repay the same.
The statements of accounts maintained by the applicant bank in the usual and ordinary course of business shows that there is an outstanding balance of Rs.33,91,853.60 as on 30.06.2022 (i.e. Rs.23,35,225.23 in the Term Loan Account No.041906'10021057 and Rs. 10,56,628.37 in the Term Loan Account No.04190510016040). The accounts became N.p.A. on 31.12.2019. As such the defendant Nos.'1, 2 and 3 are legally bound and joinfly and severalty liabte to repay the said amounts to the applicant bank with interest till realization.
ln order to establish the valuation of the Mortgaged properties, the applicant bank had enclosed a valuation Reporl dated 14.02.20'18, where the valuation of th€ Mortgaged propenies have been given.
The applicant bank thus b€came constrainad to file the pres€nt Odginal Application for the recovery of R3. 33,91,853.60 (Rupee3 Thirty-Throo Lrcs Nlnoty-One Thousand Eight Hundred Flfty-Thrse And Pai3a Sixty) onty as on 30.06.2022 along with interest and cost of the applic€tion.
After filing of the OA the Tribunal issued notices upon the defendants through registered post and th6 applicant bank filed service report on 07.09.2022 and brought on record the postal receipts along with track consignment report. The learned
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counsel for defendantshaveappeared on 28102022and sought time for filing written statementcum evidence on affidavitwhich was duly permitted. Thereafterthe matter waslistedon several times,butwritten statement cum evidenc€ on aflidavit hasnotbeenfiledbythedefendants'Hence,theirrightofthefilewrittenstatement cum evidenceon affidavitwas closed on 01 03 2023Thereafter the matter was posted for hearing on behalfof the applicantbank'
Supporting the c-laimof the applicant bank Acharjya Sonowel, Chief Manager and Authorized Officerof the ApplicantBankhasfiled evidenceon affilavit coupledwith thesecuritydocumentsmarkedasOocumenlP,Exhibit-Aw-1llloAW-1126'supporting the claim of theapplicant bank.
Heard the learned counselfor the applicant bank who prayed for issuance of Recovery Certificateagainstthe defendants as per pleadingsmade in the Application' supported by evidenceon affidavit of their witnesswho affirmed on oath the execution of the securityand other documentsby the defendants and also execution of their own documentsrelied upon, which have been marked exhibits'
Considering thefacts and circumstances of the case, I am of the considered view that the documentsfiledby theapplicant bankare supportingthe claimof the applicant bankand establishingthe liability of the defendantslt is proYed that the defendantsare jointly and severally liable to pay to the applicant bank the claim made in the OriginalApplication.The loan was obtainedand documentshave been executed on 27.0A.20'18& 01.02.2019.Moreoverafter perusing the documentson record and takinginto consijerationof the faclsandcircumstances of the case' I findthat the mortgagehas been created by the defendant No 3 wherethe limitation available is for'12 yeaIs andas such taking into accountof the creationof the mortgage the application appearsto have be€n fledwell withinthe periodof limitationTheaccount became NPA on31.122019 and theOA has been filed on 05'07 2022 Hence' the oAisfiledwellwithinthepe]iodo'limitationandthisTribunalhavingajurisdictionto adjudicate theOriginal Application.
Considering theunchallenged/ unrebutted versionof Acharjya Sonowal, the
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applicant'switnessandallthedocumentsmarkedasexhibits,includingdulycertified copy of the statsmentof accountalongwith interest calculation sheet maintainedby thsapPlicantBankinifsrBgularcourseofbusiness,lholdthattheapplicantisentitled to get the RecoveryCertificate as prayed for.
ln the result, thepresent Original ApplicationNo'261 of 2022 is allowed with cost as under :-
i) The defendanb No.1, 2 &3 are jointly and s€verally liable to Pay to the applicant bank asum of Rs. 33,91,853.60(Rupeo3 Thitty'Thrco Lacs Ninety-OnoThou3andElght HundredFifty-Thtss And Pai3e Slxty) only withpendentelite andfutureinterest @970% per annum with monthlyrests fiom 01.07.2022iill the date of full paymenurealizaiionand also cost of lhe application.
li) The charge of thecertificated amount be keptalive on mortgaged propertyi'e' All thatpiecsand parcelof land measuring 3 Bigha I Katha coveredby oag No. 620 of PattaNo 74 of Village Rotowa Pathar under Mouza- Baghmara in the District ofBiswanath, Assam-784176 standingin the nameof defendant No.3, as describedin Schedule-Aof the OA till the amount is realizedin full' ilD Tha chargeof the certiricated Emount be kePt aliveon mortgaged property i e' All thatpiece andparcel of landmeasuring 2 Bigha 2 Katha 6 Lecha covered by Dag No.725 otPafia No. 42 of Village Rotowa Patharunder Mouza- Baghmata in the Districtof Biswanath, Assam-784176standingin the name of defendant No.3, asdescribedin Schedub-B of ths OA till the amountis realized in full.
iv) Ths applicantbank is entitledto proceed againsttho securad items towards recovery of the debts.
y) Tha applicant bankis also entitledto proceed againstthe peBonal assalsand propertiss of tho defendants towardsrecovery of the dues.
vi) The applicantbank is entitled to the costsof the O.A which includes the
advocate fees of lheapplicent bank. Applicant is directed to file the cost memo
within2weeksfromtoday. *"ktrflr#
DRT, Guwaheti
OA 261/2o2ZORT€Mh.lr
yii} lssue Recovery Certificate accordingly for a sum R!. 33,91,853.60 (Rupees
Thirty-Thres Laca Nlnetyone Thousand Eight Hundred Fifty-Throo And
Pai3a Sixty) only in favour of the applicant bank against the defendants No. 1,
2&3.
yiii) Communicate copy of this order to the concemed parties.
This order is dictated and corrected by the undersigned.
Judgment dated 26h August 2024, signed andpronounced in the Tribunal
today under my signalure.
Copy of the JudgmenuFinal Order be uploaded in the Tribunal's Website and tile
be consigned to Record Room.
,.,,,,*"ffi&tr Prssiding Ofticer DRT, Guwahati.
2 issues framed by the court
Whether the debt recovery tribunal had jurisdiction to adjudicate the original application filed for recovery of dues.
Whether the Recovery Certificate should be issued against the respondents for the outstanding loan amount.
1 provisions across 1 enactments
UCO BANK Charali Branch
M'S MAHALI AGRO FARM
MS BINITA DUTTA HAZARIKA
BHASKAR HAZARIKA
Prasiding Officer
As recorded by the court registry
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
