DRT Guwahati granted Recovery Certificate against proprietorship firm and its proprietor for outstanding loan dues as per evidence submitted ex-parte without opposing representation.
Issued Recovery Certificate for Rs. 27,71,005.52 with interest; kept charge alive on properties; allowed proceeds against secured and personal assets.
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 294/202?IoRT-cryshati
IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI
(North Eastern Reoion)
(Tnbunal of Assam, Nagaland, Meghataya Manrpur. Mizoram Arunachal pradesh & Tnpura)
O.A. lto. 29412022
ln the mattor of -
STATE BANK OF INDIA Stressed Assets Recovery Branch (SARB), Jorhat, Na-Ali, M.G. Road. Opp. ASEB Buttding, Jorhat -785001, Assam.
..Applicant
Vs.
Tezpur, Darrang, Assam-7041 48
Dofendants
Prosence of the Counsel :
: For the Applicant Sri Subrata Dutta, Advocate For the Defendants : None (Ex-parte)
Daled .23.04.2024
JUDGiIENT
This is an application under section 19 of the Recovery of Debts Due to Banks and Financial lnstitutions Act, 1993 filed by the State Bank of lndia, Stressed Assets Recovery Branch (SARB), Jorhat, Na-Ali, M.G. Road, Opp. ASEB Buitding, Jorhat - 785001, Assam, with a prayer to issue Recovery Certificate for the sum of Rs. 27,71,005.52 (Rupoes Twenty Seven Lacs Seventy One Thousand Five and Paisa Fifty Two) only as on 10.07.2022 against the defendants No. 1 and 2 jointly and severally with pendentelite and future interesl at the rate of 9.70% (CC) per annum with monthly rest till realization, along with cost and other relief.
A few factsgiving rise to thepresent application ^r. ," " H,,;1ffigfuft\
2
o.A. 294r2o2zoRr4uwah.r
The Defendant No.1 is a proprietorship Firm and the oefendant No. 2 is the Proprietor of the Oefendant No..l Firm and is engaged in Rice Milt Business. The Defendant No. 2 had also created equitable mortgage of his immovable property as primary security in favour of the Appricant Bank wherein the unit is estabrished.
The Defendant No. 2 in his capacity as the propriefor of the Defendant No.1 Firm had approached the Appricant Bank and appried for a MSME roan sBr Asset Backed Loan for his businGs in the form of Cash Credit toan (OO) facitity vide Loan Application dated 09.12.2020 and afrer considering the said application, the Applicant Bank vide Letter of Arrangemenl dated 26.02.2021 sanc{ioned a cash credit loan facility (Drop line OD) of Rs. 30.00 Lacs with interest at 2.30% margin above MCLR (MCLR = 6.65%) with a minimum of 8.9570 per annum dsing or falling there with, on daily product with monthry rests. The .ffective rate at the time of sanction stood at 8.95% per annum. The cash credit facility was repayable on demand. The Oefendant No. 2 in his capacity as the proprietor of the Defendant No. 1 Firm and also as the mortgagor had signed and executed the said Letter of Arrangement thereby accepting all the terms and conditions of the sanction.
As security for repayment of the aforesaid roan facirity, the Defendant No.2 in his capacity as the proprietor of the Defendant No.1 Firm, had signed and executed an Agreement of Loan cum Hypothecation daled 26.02.202,1 thereby not only hypothecating the assets created out of Bank rinance (more specifically described in schedule A of lhe OA) but also agreeing to all the terms and conditions contained therein. Further the Defendant No. 2 in his capacity as the proprietor of the Defendant No.1 Firm had also signed and executed a Dp Note dated 26.02.2021and a Op Note Take Delivery Lettet dated 26.02.2021 in favour of the Applicant Bank.
As sacurity for repaymsnt of the aforementioned loan facility, the Defendant No. 2 had also creabd equitable mortgage of his land measuring,l Bigha 3 Kathas 14 Lechas by deposit of Registered Gift Deed and other related land documents (more specifically descdbed in Schedule-B of the OA) with the Appticant Bank on 24.02.2021| and also contirmed the said deposit and also the creation of equitable mortgage by
S!,.'td.".ts.^ A"!.,:r7l o+ Pr$iding O'fltcel 1,,,4 DRT, Guwahati
3
o.A 2g4ro22lDRT-Guwahatr
signing and executing a Lefler of Confirmation for Creation of Equitable Mortgage dated 15.03.2021.
As the Defendants No..l and 2 had failed to repay the oubtanding amount in lhe loan account, the Applicant Bank vide Demand Lettars da*d 27.10.202,1 and 27.12.2021 had demanded and requested the Defendants to regutadze the loan account by paying the outstanding amount in the loan accounl including the accrued interest thereon but the Defendants failed to respond to the same.
The Applicant Bank had atso initiated proceedings under the SARFAEST Act, 2002 by issuing Demand Notice date d 1.1 .0.1.2022 under Section 1g(2) of the said Act, but the Oefendants did not respond to the same.
The defendants had availed the said Loan Facility from the appticant bank but have not paid the outstanding amount as per terms and condition made with the applicant bank in spite of repeated demands and request by the applicant bank, hence the said account became NpA on 25.12.2021. After the account became NpA the applicant bank issued noticas for repayment of tha due amount, but the defendants failed to repay the loan amounl or renew the loan account.
The applicant bank thus became constrained to file the present Original Applicatim for the rccovery of Rs. 27,71,005.52 (Rupees Twenty Seven Laca Sevonty One Thousand Fiye and paba Fifty Two) only as on 10.07.2022 along with interest and cost of the application.
After filing of the OA the Trlbunal issued notices upon the defendants through registored post and the applicant bank filed service roporl on 1g.Og.2022 and brought on record the postal receipts along with track consignment report which shows that notice has been served upon the defondant no..l by name and th6 notice has not been served upon the defendant no. 2 by name. Thereafler the Tribunal ordered paper publication of noticg upon the defondant no. Z and the applicant bank issued notice to the defeodant no. 2 on 06]t12022 through paper pubtication in two newspapers namely '7he Times of lndia,, and "Dainik Asom,l Ev6n afier issuanc€ of notice through paper publication also there was no representation on behalf of the defendants either by the counsel or the person and hence the defendant no. 1 & 2
"ffim&*t DRT, Guw.hati
4
O.A. 294/2022loRt.cuwehali
were set ex-parte on 28.02.2023 and the matter was posled for hearing on behalf of the applicant bank.
Supporting the claim of the applicant bank Sri Arup Kumar Das, Chief Manager of the Applicant Bank has filed evidence on afiidavit coupled with the security documents marked as document B, Exhibit AW_1 to AW-.lg, supporting the ctaim of the applicant bank.
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 witn€ss who afiirmed on oath the execution of the security and other documents by the defendants and also execution of their own documents relied upon, which have been marked exhibits.
Considering the facts and circumstances of the case, I am of the considered view thal the documents filed by the applicant bank are supporting the ctaim of the applicant bank and establishing the liabitity of the defendants. tt is proved that the defendants are join y and severally liabla to pay to the applicant bank the claim made in lhe Original Application. The loan was obtained and documents have been executed on 26.02.2021. The account became NpA on 25.12.2021and the OA has been filed on 30.07.2022. H6nce, the OA is filed we within the period of timitation and this Tribunal having a jurMiction to adjudicate the Originat Application.
Considering the unchallenged/ unrebutted version of by Sri Arup Kumar Das, the applicant's witness and all the documents marked as exhibits, including duly cerlified copy of the statement of account along with interest calculation sheet maintained by the applicant Bank in it's regular course of business, I hold that the applicant is entitled to get the Recovery Certificate as prayed for.
ln the result, the present Original Apptication No. 294 ot 2OZ2 is a owed with cost as under :-
i) The defendants No. 1 & 2 are jointly and severalty liable to pay to the applicant
bank a sum of Rs. 27,71,005.52 (Rupees Twenty Sevon Lacs Seventy One
Thousand Five and Paba Fifty Two) onty with pendentelite and future
*r",""WW
under my signature.
Copy of the JudgmenyFinal Ordor be uploaded in the Tribunal,s Website and file be consigned to Record Room.
d& il@ra)710 l* (Shiv Sha.an Dubey Presiding Oflicer DRT, Guwahati.
3 issues framed by the court
Whether the Recovery Tribunal has jurisdiction and the application is within limitation period.
Whether the applicant bank is entitled to issuance of Recovery Certificate against the guarantors.
Whether the recovery operational documents filed were sufficient to establish liability.
1 provisions across 1 enactments
STATE BANK OF INDIA SARB, Jorhat
M/S MATIMALA RICE MILL (Proprietorship Firm)
MD. MOKHTARUDDIN AHMED
Shiv Shankar Dubey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
