Allowed

Canara Bank v. Mr Sanjib Chetry

DRT2 Sept 2024OA/404/2022

Case brief

AI extract

What is this about?

Allowed Original Application filed by Canara Bank under Section 19 of RDB&FI Act, 1993. Granted recovery certificate for Rs. 46.09 lakhs with interest. Directed proceedings against secured and personal assets.

What did the court decide?

Issued Recovery Certificate for Rs. 46,09,477.34 with 10% p.a. interest. Directed keeping charge alive on hypothecated and mortgaged properties and entitlement to proceed against personal assets for r

Canara Bank versus Mr Sanjib Chetry — Contract and Commercial Disputes | DRT (2024)

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oA 4o4/2o2zDRT_cuwahali

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IN THE OEBTS RECOVERY TRIBUNAL, GUWAHATI

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(North Eastern Reoronl ' _ ' rr0Lna' o' Assarr Nagaano l\reqtatava y"",or, y,-2q,a- A.Jnacharp.ac,esf E T.p,ral Before Shri Shiv Sharan Dubev. presidinq Officer

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O.A. No. 40412022

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ln the matter of - CANARA BANK Dhemaji Branch, Usha Complex, Nalinipam, Opposite Lrty Cinema Hall. Dhemaji,^pin-787057, Assam

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"Appricant vs.

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MR. SANJIB CHETRY S/o Sri Dambar Bahadur Chetry R/o Village lr.4ohori Camp, Ukhamati, P.O Gogamukh, Dhema,r, PIN-787056 Assam

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.. Defendant

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Presence of the Counsel :

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For the Applicant : i/r Gitartha Das. Mr. Nurul lslam, Advocates For the Defendant . None (Ex-parte)

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Dated^..02t09t2024

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JUDGMENT

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This is an application under section 19 of the Recovery of Debts Due to Banks and Financiat lnstitutions Act, 1993 filed by the CANAM BANK, Dhemaji Branch, Usha Complex, Natinipam, Opposite Lity Cinema Ha , Ohemaji, pin_787}57, Assam, with a prayer to issue Recovery Certificate for the sum of Rs. 46,09,177.34 (Rupees Forty-Six Lacs Nine Thousand Four Hundred S6ventySeven and Paba Thirty-Four) only as on 91.07.2022 against the defendant with pendentalite and future interest @ contractual rate till realization along with cost and other relief.

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A few facts giving rise to lhe present application are as under.

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A.oD Llmlt of Rs. 15 l.khs :

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Pursuant to an application for loan dated Nil by the defendanl to the applicant

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bank, the applicar afrer considering his request sanctioned OD facility of Rs 15.00 Lakhs

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SLi, Pl^&r,. t-lr"{ ","",r,^nr#*le1l4 DRT, Guw.hati^[

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oa 4oit/2o22rE RT.GMharr

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vide sanction letter dated 16.05.2019. As per the said sanction letter the borrower is required to pay interest 10% p.a. The OD limit is for 12 months and repayable on applicant's demand. The defendant complied with the requirements of the sanc{ion letter towards acceptanca of the terms and conditions contained therein.

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ln order to avail the OD facility of Rs. 15.00 Lakhs the defendant executed the

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following loan documents-

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a, Pronote dated 17.05.2019 executed by defendant whereby he promised to pay to the applicant Bank a sum Rupees Fmeen Lakhs only whh interest etc. on demand.

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b. Cash Credh Agreement dated 17.05.2019 wherein the borro\fler undertook to repay the loan amount with interest etc. The borrower also hypothecated stocks of raw materials, goods-in-process of manufac{uring and all finished and manufactured goods and articles etc. (Schedule-A ofthe OA).

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c. Request for overdraft facilities dated 17.05.2019 executed by the defendant upto Rupees Fifteen Lakhs only and agreed to pay interest.

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The defendant secured the OD limit of Rs 15.00 Lakhs by creating equitable mortgage of his land along with an Assam Type Building standing thereon measuring 3 Bighas covered by Dag No. 116, K.P. Pattia No.24 situated at Village No. 2 Tarajan Chapori, under Mouza- Bordoloni, Revenue Cirds. Gogamukh, District- Ohemaji, Assam

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(Schedule-B of the OA) by depositing with the applicant bank the foltowing titte deeds:

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i. Letter evidencing deposit of Title Deeds dated 17.05.19 executd by defendant.

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ii. Perlodic Xhira.t Patta No.24. iii. Jamabandi of K.P. Patta No. 24 dated 02.05.19. iv. Land Revenue Payment Receipt dated 25.04.19. v. Trace Map dated 03.5.19. vi. Non-Encumbrance Certificate No. 136/19 dated 16.05.19. vii. Form 50 from the office of the District and Session Judge dated 10.05.19. viii. Form 50 from the of6ce of the Munsiff dated 08.05.19. ix. Land Holding Certificate dated 04.05.'19, from the Circle Officer, Gogamukh Revenue Circle.

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x. Affdavit regarding Non-Encumbrances dated 16.05.19. xi. Title lnvestigation Report dated 16.05.19.

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The applicant also procured the Valuation Report dated 03.02.2022 in conneclion

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with Schedul+.B property.

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Afrer executing all the above loan/security documents the delendant avalled the

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OD facility of Rs. 15.00 Lakhs by opening and operating OD AJc no. 4246256000005 with

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the Dhemaii Branch of the Applicant Bank.

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Sl^i/$&"4- aJ"i, ,."",0,,n*:)lnllq lf DRT. Guwahati

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O a 404/2022lDRl-Guwahalr

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B. Enhancement of OD Limit upto Rs^{20.00 Lakhs}

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ln^pursuant to further request of the defendant^{dated 07.11.19 for enhancement of} OD limit upto Rs 20.00 Lakhs, the fuplicant^{Bankenhanced the OD limit uptoRs 20.00} Lakhs. The secudty created eadier are^{also extended to avail the said limit.}

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ln order to avail the enhanced OD limit of Rs 20.00 Lakhs, the defendant^executed

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the following loan & security^documents-

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a. Pronote dated. 07.1'1.19 executed^{by defendant whereby he promised to pay} to the applicant Bank a sum of Rs.^{20.00 Lakhs only with interest2.95%p.a.} above MCLR^(MLCR being 6.09%) or at^{sucholher rates as may be revised by} the bank from time to time etc^{on demand.}

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b. Supplemental Agreement dated^{07.11.2019executedby thedefendant} whereby he agreed to repay to the Bank the^{loan of Rs. 20.00Lakhswith} interest. The borrower crvenants that assets^{hypothecated and morigagedto} the bank earlier shall be available as security^{for the increased limib etc.}

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c. Letter of Renewal dated^{07.11.2019, wherebythe defendant agreedto repay} to the Bank the OD limit of^{Rs 20.00 Lacs with interest.The bonower} covenants that security of^land &^{building mortgagedto the bank earlier shall} be available for the increased limits etc.

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Afler executing all the above^{loan/security documentsthe defendantcrntinue to} avail the enhanced OD limit of^{Rs. 20.00 Lakhs by operating ODAJc no 4246256000005} with the Dhemajl Branch ofthe^{Applicant Bank.}

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C. Enhancem€ni of OD Limit^{uDio R3 25.00tekhs}

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Pursuant to further request of the defendant^{videapplication dated 0212.2019fot} enhan@ment of OD limit from Rs 20.00^{lakhs to Rs 25.00Lakhs,the ApplicantBank} enhanced the OD limit to Rs.^{25.00Lakhs. The securities created earlierare also} extended to avall the said limit.

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ln order to availihe enhanced OD limit of Rs^{25.00 Lakhs, the defendant executed}

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the following loan & security documents-

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a. Pronote dated 02.12.19 executed^{by defendantwherebyhe promisedto payto} the applicant Bank a sum of Rs 25.00^{Lakhs withinterest2.65% p.a.above} MCLR (MLCR being 6.090/o) or at such^{other rates as maybe revised by the} bank from time to time etc. on demand.

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b. Supplemental Agreement daled 02j22019^executed by^thedefendant whereby he agreed to repay to the Bank the loan of Rs. 25.00^Lakhswith interest. The borrower covenants that assets^hypothecated and^mortgagedto the bank earlier shall be available as security^{for the increased limits etc.}

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**H4i8t DRT Guwahati

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c. Letter of Renewal dated 02122019, r/vtereby the defendant agreed to repay to the Bank the OD limit of Rs 25.00 Lacs with interest. The bonowei covenants that security of land & building mortgaged to the bank earlier shall be available for the increased limits etc.

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After executing all the above loan/secunty documents the defendant continue to

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avail the enhanced OD limit of Rs. 25.00 Lakhs by operating OD A,/c no. 4246256000005

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with the Dhemajl Branch ofthe Applicant Bank.

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D. Enhancement of OD Limit upto 35 Lakhs

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ln pursuant lo further request of the defendant vide loan application dated 25.08.2O for enhancement of OD timit from Rs 25 lakhs to 35.00 Lakhs, the Applicant Bank enhanced the OD limit to Rs 35.00 Lakhs. The securities created eadier are also extended to availthe said limit.

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ln order to avail the enhanced OD limit of Rs 35.00 Lakhs, the defendant executed

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the following loan & security documents -

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a. Pronote dated 25.08.2020 executed by the defendant whereby he promised to pay to the applicant Bank a sum of Rs 35.00 Lakhs with interest 1.S% p.a. above MCLR (MLCR being 6.09%) or at such other rates as may be revised by the bank from time to time etc. on demand.

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b. Supplemental Agreement dated 25.08.2020 executed by the defendant whereby he agreed to repay to the Bank the loan of Rs. 3O.OO Lakhs with lnterest. The bonower covenanls that assets hypothacated and mortgaged to the bank earlier shall be available as security for the increased limits etc.

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c. Letter of Renewal dated 25.08.2020, whereby the defendant agreed to repay to the Bank the OD limii of Rs 35.00 Lacs with interest. The bonower covenants that security of land & building mortgaged to the bank earlier shall be available for the increased limits etc.

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Afrer executing all the above loan/security documents the defendant continue to

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availthe enhanced limit of Rs. 35.00 Lakhs by operating OD A/c no. 4246256000005 with

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the Dhemaji Branch of the Applicant Bank.

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E. Corrrspondenco wiih the defandant and Stabment ofAccount

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The defendant enjoyed the benefrts of the OD timit upto Rs 35.00 Lakhs but was never sincere towards repayment of loan/limit procured under the relevant loan and security documenb executed by him. Even during the COVID-19 pandemic the Applicant sanclion and disbursed an amount of Rs 1,20,3'11.00 to the defendant for the purpose of meeting working capital requirements for the purpose of serving of COVID-19 moratorium

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s-!,i,)Plorn^A"t''t ,,""r.n*Llt4\4⁽ DRT, Guwahati

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O A 404/2022lDRI-G!wahan

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granted as per Reserve Bank of lndia guideline (FITL). On 01.04.22 the OO Account No. 4246256000005 and FITL Account No. 4246710000058 ot the defendart became NPA.

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Thereafier the applicant Bank issued demand nolice dated 16.08.22 through its Counsel to the defendant demanding repayment of the outstanding dues in the Loan Accounts, but the same went in vain as the defendant^paid deaf ears to the said notice.

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As on 31.07.22 there is an outstanding due of Rs.^{214,67,469.00} in the OD A,/c no. 4246256000005 of the defendant. Duly certifed copy of the Statement of Account of OD A/c no. 4246256000005 ofthe defendant upto 31.07.22 maintained by the applicant Bank in its usual and ordinary course of business is filed along with original application Annexure-32.

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As on 31.07.22 there is an outstanding due of Rs 1,42,008.34 in the FITL Account No. 4246710000058 of the defendant. Duly certmed copy of the Statement of Account of the defendant uplo 31.07.22 maintained by the applicant Bank in its usual and ordinary course of business is filed along with original application as Annexure.33.

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The applicant bank thus became crnstrained to rile the^present Original Application for the recovery of RE. 46,09,477.34^(Rupo6s Forty€ix Laca Nine Thousand Four Hundrod SevEnty-Seven and Paba Thiity-Four) only as on 31 .07 .2022 alotl€ with interest and cost of the application.

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After filing of the OA the Tribunal issued notice upon the defendant through ragistered^post and the applicant bank filed service report on 08.12.2022 and brought on record the^postal receipt along with track consignment^{report which shows that the} nolice has not been served upon the sole defendant by name. Thereafter the Tribunal ordered^{paper publication} of notice upon^{thesole defendant} and^theapplicant bank issued notice to the defendant through Paper Publication in two newspapers namely^"Niyomiya Baia^" and "The Sentinef'both dated 06.01.2023. Even after issuing notice through^{paper publication} upon the defendant there has been no representation on behalf of the sole defendant either by the counsel or the^person and hence the defendant was set ex-parte on 20.04.2023 and the matter was^posted for ex-parte hearing on behatf of the applicant bank.

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Supporting the claim ofthe applicant bank Sri Debananda Doley, Manager ofthe

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:h,kEat,,"/ DRT. Guwahati

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o.A aoalzo22lDRT_Gusahan

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Applic€nt Bank has tiled evidence on affidavit coupled wilh the security documents marked as Exhibit AW-1/'l to AW-1/33, supporting the claim of the applicant bank.

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Heard the laarned counsal for the applicant bank who prayed for issuan@ of Recovery Certificate against the defendant as per pleadings made in the Application, suppoded by evidence on affidavit of their witness who affirmed on oath the execution 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 lhe 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. tt ts 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 17.05.2019, 07.11.2019, 02j22019 & 25.08.2020. The accounts became NpA on 01.04.2022 and the OA has been filed on 27.09.2022. Hence, the OA is filed we 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 Sri Debananda Ooley, 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 maintained by the applicant Bank in it's regular course of business, I hold that the applicant is entifled to gei the Recovery Certificate as prayed for.

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ln the result, the present Original Application No. 4O4 ol2022 is allowed with cost as under :-

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The sole defendant is liable to pay to the applicant bank a sum of Rs.46,09,477.34 (Rupeos Forty-Six Lacs Nine Thousand Four Hundred Seventy-Seven and Paisa Thirty-Four) only with pendentelite and future interest @100/o per annum with monthly rests from 01.08.2022 till the date of full paymenvrealization and also cost of the application.

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**ffir,f? DRT Guwahati

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0a 4042022/DRT€uwah.ti

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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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iiD The charge of the cerlificated^{amount be kept alive on mortgagedproperq i.e} A plot of land along with an Assam^{TypeBuilding standingthereon measuring} 3 Bighas covered by Dag No. 1'16, K.P.Patta^{No. 24 situated at VillageNo 2} Torajan chapori, under Mouza-Bordoloni,^{Revenuecircle-Gogamukh,} District- Dhemaji, Assam and is bounded by^{: North: Land of Smt Lili} Sonowal; South: Land of Ram^{BahadurChetry;East: Land of Dharma} Sharma; West: Land of Diliram oahal,^{as described in SchedulcBof the OA} tillthe 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 entitled to^{proceed againstthe personalassels and} properties of the defendant towards recovery of the dues.

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vl) The applicant bank is entitled to^{the costs of the O.A. whichincludas the} advocate fees of the applicant bank.^{Applicantis directed to file the cost} memo wilhin 2 weeks from today.

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vii) lssue Recovery Certificate accordingly^{for a sum Rs.46,09,477.34 (Rupocg} Forty-Six Laca Nins Thousand^{FourHundredSeventy€even and Paba} Thirty-Four) only in fayour of the applicant^{bank againstthe sole defendant.}

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viii) Communicate copy of this order^{to the concerned parties.}

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This order is dictated and corrected by the undersigned.

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Judgment dated 2"d September 2024, signed and^{pronouncedin the Tribunal}

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today under my signature.

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

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file be consigned to Record Room.

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,,fk"m#? Presiding Ofticer DRT, Guwahati.

Canara Bank v. Mr Sanjib Chetry

Case brief

What is this about?

What did the court decide?

Canara Bank v. Mr Sanjib Chetry

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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