Allowed

Bank of India v. Arun Kumar Pandey

DRT25 Oct 2024OA/446/2022

Case brief

AI extract

What is this about?

The DRT allowed the bank's application for a recovery certificate against the borrower and guarantor. While holding the guarantor liable for the original sanctioned amounts, the court confirmed the maintainability of the application and directed issuance of the certificate for the outstanding dues.

What did the court decide?

Issued Recovery Certificate for Rs. 28,42,383.20 p with interest at 11.10% p.a., declaring defendants jointly and severally liable.

Bank of India versus Arun Kumar Pandey — Contract and Commercial Disputes | DRT (2024)

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oA 4'{62o2zoRT4uwaheti

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IN THE DEBTS RECOVERY^{TRIBUNAL,GUWAHATI}

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(North Eastern Region)

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(Tribunal of Assam, Nagaland, Meghalaya, Manipur,^{Mizoram,A.unachalPradesh& Tripura)}

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Before Shri Shiv Sharan Dubev. Presidino^Officer

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O.A. No. 446/2022

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ln the matter of - BANK OF INDIA Dibrugarh Branch, H.S. Road, Hansaria Arcade District- Dibrugarh, Assam-786001.

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Applicant

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Vs.

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ARUN KUMAR PANDEY S/o Shri Babban Pandey Proprietor of M/s Trade lnfinity New Market, Dibrugarh, Assam.

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ARUP JYOTI HMARIKA S/o Late Akon Chandra Hazarika Chiring Chapori Road, Opp SB Tent House, Dibrugarh, Assam-78600'1.

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Defendants

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Presence ofthecounsel:
For theApplicant	:	Mr.Arijeet Ganguly, Mr.AdarshDhanuka, Advocates
FortheDefendantsNo.1	:	None (Ex-parte)
FortheDefendantNo.2	:	l\4r.SumanChetia, l\4r.JyotiPrasadMore,Advocates.

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Dated :2411012024

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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 Financial lnstitutions Act, 1993 filed by the BANK OF lNDlA, Dibrugarh Branch, H.S. Road, Hansaria Arcade, Distric! Dlbrugarh, Assam-786001, with a prayer to issue Recovery Certificate for the sum of Rs. 28,42,383.20p (Rupees Twenty-Eight Lacs Forty-Two Thousand Three Hundred Eighty-Three and Paisa Twenty) only as on 08.08.2022 against the defendants with^pendentelite and future

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interest with monthly rests till realization along with cost and other relief.

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A few facts giving rise to the^present application are as under. Jffiffiffi

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DRT, Guwahati

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O A 446/202ZDRT-Guwahatr

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The defendant Shri Arun Kumar Pandey is a Sole Proprietor of the proprietorship firm M/s Trade lnfinity, and a borrower who has availed various credit facilities and created hypothecation of goods and stocks in favour of the applicant bank to secure such facilities granted.

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The defendant no. I made an application dated 13.02.2018 for grant of cash credit facility of Rs. 9.00 lakhs and Term Loan of Rs. 2.00 lakhs to the applicant bank at its Dibrugarh branch for the purpose of expanding his business in FMCG goods. By a sanction letter datsd 13.02.2018, the applicant bank after due consideration of the loan application of the said defendant, sanctioned a cash credit facility of Rs. 9.00 lakhs to the said defendant with interest @11.10yo against hypothecation of stocks, repayment on demand. The applicant bank has also sanctioned a Term Loan of Rs. 2.00 lakhs to the said defendant with interest @10.10% against hypothecation of stocks, repayment in 60 EMI of Rs. 42601.

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ln order to secure lhe cash credit facility granted, the defendant has executed several agreements and documents including, inter alia, a demand promissory note dated^'13.02.2018 by which he has promised to pay the applicant the sum borrowed with interest at the effective tale ol2.50o/o above yearly BOI MCCR + 0.30% of BSS presently 1 1.10 7o p.a. with monthly rests for value received. The defendant has also executed a Format for MCLR Agreement dated 13.02.2018 for Rs. 9.00 Lacs. The defendant has also executed a hypothecation cum loan agreement dated 13.02.2018 in favour of the applicant bank. The defendant no. 2 has also executed a deed of guarantee dated 13.02.20'18 in favour of the applicant bank. The defendant No. 1 has also executed a draft declaration dated 13.02.2018 in favour of the applicant bank.

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ln order to secure the term loan facility^granted, the defendant no. 1 again has executed a domand^promissory note dated 27.02.201.8 by which he has^promised to pay the applicant the sum borrowed with interest at the effective rate of 1.50% above yearly BOI MCCR + 0.30% of BSS presently 10.10% p.a. with monthly rests for value received. The defendant has also executed an instalment letter dated 27.Q2.2018 whereby he agreed to repay the instalments of Rs. 4260.00^{per month}

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sli, A./, ( '=-4- lo'u{ Presrdrns Of,ic!r DRT. Guwahali

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O A 446/2022lDRT-G!wahair

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commencing from March 2018. The defendant has also a Format for MCLR Agreement daled 27.02.2018 for Rs. 2.00 Lacs. The defendant no. t has also execuled a hypothecation cum loan agreement daled 27.02.20'18 in favour of the applicant bank. The dsfendant no. 2 Arup Jyoti Hazarika has also executed a deed of guarantee dated 27 .02.20'18 in favour of the appticant bank.

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The defendant no. 1 again made an application dated 18..12.201gto the applicant bank for grant of cash credit facility of Rs. 20.00 lakhs and Term Loan of Rs. 3.00 lakhs to the applicant bank at its Dibrugarh branch for the purpose of purchasing machinery. By a sanction letter dated 18.,t2.ZO1B, the applicant bank after due consideration of the loan application of the said defendant, sanctioned a cash credit facility of Rs. 20.00 lakhs to the said defendant with interest @12.iOyo against hypothecation of slocks, repaymenl on demand. The applicant bank has also sanctioned a Term Loan of Rs. 3.00 lakhs to the said defendant with interest @'l^{1.50%against hypothecation} of stocks, repayment in 60 EMI of Rs. 6598/-.

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ln order to secure the facility granted, the defendant no. I has executed a demand promissory note dated 18.j2.2018 by which he has promised to pay the applicant the sum borrowed with interest at the effective^.ale ol 2.SOo/o above yearly BOI MCCR + 0.300/o of BSS presenfly 11.SOo/o p.a. with monthly rests for vatue received. The defendant no. t has also executed a Format for MCLR Agreement dated 18.'12.20'18 for Rs. 20.00 Lacs. The defendant no. t has atso executed a hypothecation cum loan agreement dated 18.12.20.18 in favour ofthe appticant bank. The defendant no. 'l has also execuled hypothecation cum loan agreement (plant and machinery, stocks and book debts) dated 19.12.2019 in favour of the applicant bank.

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ln order to secure the term loan facility granted, the defendant no. t has executed a demand promissory note dated 19.12.2019 by which he has promised to pay the applicant the sum borrowed with lnterest at the effective rate of 2.50% above yearly BOI MCCR + 0.30% of BSS presen y 11.5o-o/o p.a. with monthly rests for value received. The defendant no. 1 also executed a Loan Bearer Lefler daled 18.12.2018. The dafendant no.^.l has also executed an instalment letter dated

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*W-1 ORT. Guwahati

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'18.12.2018. The defendant no.^'l also executed a Format for MCLR Agreement dated 1E.12.2018 for Rs. 3.00 Lacs.

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The applicant bank also granted the benefit of additional limit to the defendant no. 1 on account of lhe covid-1g pandemic and in accordance with the RBI guidelines. On 14.05.2020 the defendanl no. 1 applied for the additional limit claiming liquidity crunch due to the covid-19 pandemic which was duly considered by the applicant bank and vide sanction letter dated 14.05.2020, the defendant no.^.l was sanctioned an additional facility by way of demand loan for the purpose of covid cess 2020 of an amount of Rs. 2.00 lakhs. The defendant no. 1 was also granted the benetil of moratorium period of 6 months and the rate of inlerest was fixed al7.25o/o.

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ln order to secure the said additional facility granted, the defendant no. t has executed a demand promissory note dated 14.05.2020 by which he has promisod to pay the applicant the sum borrowed with interesl at the effective rate of Oolo above yearly BOI RBIR presently 7.25yo p.a. with quarterty rests for value received. The defendant also executed a Loan Bearer Letter. The defendant has execuled an instalment letter dated 14.05.2020. The defendant No. 1 also executed a RBLR Agreement dated 14.05.2020 for Rs. 2.OO Lacs. The defendant no. t has also executed a hypothecation cum loan agreement dated 14.05.2020 in favour of the applicant bank.

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The applicant bank also granted the benefit of additional limit to the defendant under Star Guaranteed Emergency Credit Line scheme. On 09.06.2020 the defendants applied for the additionat timit which was duly considered by the applicant bank and vide sanction tetter dated 09.06.2020, the defendant no. 1 was sanctioned an additional facility of Rs. 4.OO lakhs which was repayable in 48 installments of Rs. 12,720.00 each.

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ln order to secure the facility granted, lhe defendant no. t has execut€d a demand promissory note dated 09.06.2020 by which he has promised to pay the applicant the sum borrowed with interest at the effective tale of 1Vo above j year RBLR, presently 7.85o/o p.a. with quarterly rests for value received. The defendant no. 1 also executed a Loan Bearer Letter dated O9.O6.2O2O.The defendant no. .l has

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*-H,-r DRT, Guwahati

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O A 446/2022lDRT-Guwahati

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executed an instalment letter dated 09.06.2020. The defendant no. 1 also executed a RBLR Agreement dated 09.06.2020 for Rs. 4.00 Lacs. The defendant no.^'l has also executed a hypothecation cum loan agreement dated 09.06.2020 in favour of the applicant bank.

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The creation of security lnterest by the defendants in favour of the applicant bank by hypothecation of the stocks (FMCG Goods) was registered with the CERSAI and the details thereof are enclosed herewith.

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The sanctioned limits were disbursed to the defendants by the applicant bank, howaver the defendants failed to comply with the terms and conditions of the credit facilities sanctioned and due to default in repayment of the lnstalments and servicing of lnterest in the defendant's loan account bearing nos. 5038301 10000058, 503870410000009, 503873410000095, 5038701 10000009, 503865610000003^and 503865810000007, the account was classified as Non-Performing Assets^(NPA) in accordance with the RBI Guidelines. ln this connection, the applicant bank served large number of notices to lhe defendant on various occasions,^pointing out the status of the loan account and demanding repayment of the outstanding dues. The accounl was finally classified as NPA on 31.03.202'l in accordance with^RBI guidelines. The bank issued a notice daled 25.05.2021 to the defendants under section 13 (2) of the SARFAESI Act calling upon^him to^repay the^amount outstanding as mentioned in the said^{noticewithin a period of 60 daysfailing which} appropriate action will be taken by the bank.

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All the transactions regarding the disbursement of loan, other charges, adjustments, accrual of interest etc. were^maintained in the^{regular course of} businass and duly rscorded in the books of^{account maintainedby the applicant} bank in the usual and ordinary course of business. The^{applicant bank further states} that as^per the accounting^procedure, the^{bank hasstopped application/chargingof} interest in the loan account of the defendants^{from the dateof its classification as} Non-Performing Asset, however, the applicant bank is^{entitled to theaccrued} interest, but not applied, after the date of^NPA. The said^{accruedinterest} is calculated separataly and shown in a separate^{sheet and the applicant bankis}

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il,WW"/ Presiding Offcer DRT. Guwahati

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O.A^{rl46/2022loRT-Guwahan}

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entitled to recover the said accrued lnterest. The claim of the applicant in this case is inclusive of the said unapplied accrued interest and the defendants joinfly and severally are liable to pay lhe same to the applicant bank. As per statement of the accounts, the defendants have an outstanding balance of Rs.28,42,383.20 as on 08-08-2022 including uncharged interest. The Account was classified as NpA on 31.03.2021. This is pertinent to mention that the penal interest chargad in the account has not been capitalized.

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The applicant bank thus became constrained to file the present Original Application for the recovery of Rs. 2E,12,303.20p (Rupe.s Twenty-Eight Lacs Forty_ Two Thou3and Throo Hundrod Eighty-Three and paisa Twenty) only as on 08.08.2022 along with interest and mst of the application.

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Afi6r liling of the OA the Tribunat issued notices upon the defendants through registered post and the applicant bank filed service :epoi on 21|.02.2023 and brought on record the postal receipts along with track consignment report which shows that notice has not been served upon the defendant No.1. The learned counsel for defendant No. 2 has appeared on 11.01.2023 and ,iled his written statement cum evidence on afiidavit on 21.02.2023 to which the reamed counser for the appricant bank has filed its rejoinder on 23.01.2024. lt is also observed that the applicant bank issued notice to the defendant No. 1 through paper publication in two newspapers namely 'The Timesof lndia " and^.Dainik Assam" daled 02.07.2023. Even after issuance of notice through paper pubrication also against the defendant No. 1 there was no representation on behalf of the defendant No. 1 either by the counsel or the person and hence the defendant No. 1 was set ex-parte on 17-0g-2029 and his right to file written statement cum evidence on affidavit was closed. Thereafter the matter was posted for hearing.

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Supporting the claim of the applicant bank Ring_Tshaw Daw Daulagupu, Deputy Zonal Manager (Recovery) of the Applicant Bank has filed evidence on afiidavit coupled with the security documents ma*ed as Exhibit-1 to 16 supporting the claim of the applicant bank details of which are: -.

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Sl.No.	Name of the documents	ExhibitNo.
1	PowerofAttorneydEted01.022019	1
2	Loan applicationdated13.02.201A	2
		xww

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ORT. Guwahali

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O A 4,{6202zoRT€uwahali

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3	Sanction letterdated13.02.2018	3
4	Copiesofdemand promissory notedated13.02.2018,tormatfor MCLRAgreementdated13.02.2018, hypothecationcumtoan agreementdated13.02.2018,deedofguaranteedated '13.02.2018and draft declarationdated13.02.20'll8	4
5	Copiesofdemand promissory note dated27.02.20i8,instalment letter dated27.02.2018,formatforMCLR Agreementdated 27.02.2018,hypothecationcumloan agreementdated 27.02.2018 and deedofguaranteedated27.02.2018	5
6	Loan applicationdated 1A12.2018	o
7	Sanclionletterdated 18.12.2018	7
8	Copiesofdemand promissory notedated-8-2)018,format for MCLRAgreementdated18.'12.2018,hypolhecationcumtoan agreementdated18.12.2018, hypothecationcum loanagreement (plantandmachinery, stocksandbook debts)dated^.18.12.2018 and draft declarationdated18.12.2018.	I
9	Copiesofdemandpromissorynote dated18.12.2018,[oan BearerLetterdated18.12.2018, instatmentletterdated 18122018 and format forMCLRAgreementdated18.12.2018.	I
10	Applicationfo.m foradditionaltimit,proposittormatanO s-anAion letterdaled14.05.2020	10
11	Copaesofdemandpromissorynote dated14!52020,Loan Bearerletter,RBLRAgreementdated14.05.2020and hypothecationcumloan agreementdated14.05.2020.	11
	Applicatlon letter,proposalformatanbsanction letteralldated 09.06.2020	12
13	Copiesofdemandpromissorynote dated09.06.2020,Loan Bearer letterdated09.06.2020lnstalmentletterdated09.06.2020. RBLR Agreement dated 09.06.2020andhypothecationcumloan agreement dated 09.06.2020.	13
14	Copy ofCERSAIRegistration	14
15	Notice dated 25.05.2021	't5
16	Copy ofthestatementofaccountofthedefendants dulycertified underihe Banke/sBooks of Evidence Act.	to

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The defendant No. 2 has appeared and contested the claim of the applicant bank by filing written statement and evidence on afiidavit stating interalia therein that the applicant bank has failed to show proper and conect total oubtanding amounl of the lean accounl including interest and notional interest of the account calculated lhereon. The original application is also baned by limiiation. lt is furthar stated by lhis ansurering defendant that he acted only as a guaranlor against the loans availed by the defendant no. 'l from lhe applicant bank ior the amount of Rs. 9 Lakhs on 13.02.2018 and for the amount of Rs. 2 takhs on 27.02.2019.|t is further stated that by this answering defendant that these loans of Rs. 9 Lakhs and Rs. 2 Lakhs, against .1, which the anslvering defendant stood as a guarantor in favour of the defendant no. have been thus iar cleared by lhe defendant no. 1, as on date. As such the applicant

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SlJail'ata.,W r,"",o,ni##a^" DRT. Guwahali

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OA 446/2022IORT Glwahan

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Bank now cannot make a prayer before this Tribunal, seeking to proceed against the defendant no. 2, by making the defendant no. 2 liable for repayment joinfly / severally, as a guar.lntor, by simply consolidating all the loans availed by the defendant no. 1 from the applicant Bank, till date. The applicant bank charged higher rate of interest in violation of the terms and conditions of the sanclion letter as \r,,/ell as in violation of the RBI guirjelines besides bank has also charged penal interest in the loan account. Las{y it has been prayed to dismiss the original apptication filed by the appticant bank.

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The leamed counsel for the applicant bank has fled its rejoinder against the written statement liled by the defandant No. 2 in which it has been stated that the defendant no 2, Arup Jyoti Hazarika admittedly acted as a guarantor in respect of the cash^qedit facility of Rs. 9.00 lakhs and term toan facility of Rs. 2.OO lakhs granted to the defendant no. 1 by sanction tetter dated 13.02.201g. The defendant no. 2 atso admittedly executed a deed of guarantee dated 13.02.2018 in respecl ofthe cash credit facility and a separate deed of guarantee dated 27 .02.201g in respect of the term roan facility The cash s€dit facirity was enhanced from Rs. 9.oo rakhs to Rs. 2o.oo rakhs and the term loan facirity was enhan@d from Rs. 2.oo rakhs to Rs. 3.oo rakhs the bank,s sanclion letter dated 1B.1Z.ZO11. But no fresh guarantee was taken from the defendant no. 2 in respecl of the enhanced facilities. lt is denied by the applicant bank that the loans availed by the defendant no. .l on 13.02.20.1g of Rs. 9.OO lakhs and on 27 .02.2018 lot an amount of Rs. 2.OO lakhs have been repaid by the defendant no. 1 and hence the defendant no. 2 cannot be made liable in respeci of these two loans. Admittedly the cash credit facirity was enhanced from Rs. 9.oo rakhs to Rs. 2o.oo rakhs and the term loan facility was enhanced from Rs. 2.OO takhs to Rs. 3.OO takhs by the bank's sancton letter dated^,lg.12.Z}1g. But no fresh guarantee was taken from the defendant no. 2 in respect of the enhanced facilities. The defendant no. 2 would thus continue to be liable to the extent of the loans availed on 13.02.2018 and 27.02.2018, ho,\€ver his liability wouH be restricted to the amounts which u€re sanclioned by the sanclion letter dated 13.02.2019 only, i.e. cash credit of Rs. 9.OO lakhs and term toan of Rs. 2.00 lakhs. lt is denied by the applicant bank that p€nal lnterest has been capitatized in the loan accounts.

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k",*f-Mf ORT, Gurahati V

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o.A r46.2022lDRT€uerh!ti

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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 exacution oftheir own documents relied upon, which have been marked exhibits.

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Heard the learnad counsel for the defendant No. 2 who prayed for dismissal of the original application.

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I have carefully perused the documents on record including original application, evidence on aftidavit and exhibited documents as well as written statement on affidavit tiled by the defendant No. 2.

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It is observed that the defendant No.2 has not denied the avaitment of loan, execution of documenb and his signatures on the sama.

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A perusal of the wrilten statement filed by the defendant No. 2 and iE rejoinder filed by the applicant bank, it is manifeslly clear that the defendant No. 2 executed deed of guarantee dated 13.02.2018 in respesi of the cash credit facitity of Rs. 9.OO lakhs and a separate do€d of guarantee dal€d 27.02.2018 in respeci of the term loan facility of Rs. 2.00 lakhs. Although aforesaid cash credit facility and tem toan facility was later on enhanced, but no fresh guarantee was taken ftom the defendant no. 2 in respec{ of the anhanced facilitbs. Therefore, the defendant no. 2 will thus continue to be liable lo the extent of the loans availed on^,13.02.20,18 and 21.02.2018, and his liabitity woutd be restricted to the amounts which w€ra sanclioned by the sanction letter dated 13.02.201g only, i.e. cash credit of Rs. 9.00 lakhs and term loan of Rs. 2.OO takhs.

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It is evider ftom the siatement of account liled by the applicant bank that the defendants have defaulled in Epayment of the loan. lf there is defauft in repayment of the loan the applicant bank has every right to proceed against the defendants for realization of the ouBtanding dues. Hence, I have no hesitation to hotd that this odginal application is maintainable.

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The applicant bank has produced on record the copies of the statement of account in respect of the defendanb, duly certified under Bankers' Books Evidence Act. The applicant bank by the evidence-on-affidavit of Ring-Tshaw Daw Daulagupu, Deputy

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'H#,WDRT, Guwshati

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Zonal Manager (Remvery) of the applicant bank had deposed the conectness of lhe aftdavit and certfied copy of the account. Beyond that nothing more has to be deposed by an ofrcer of lhe bank. lt is thus obvious that apart from the entries of the Books of account there are ample evidence on the record to coroborate the said entries.

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The documents executed by the defendants are duly proved by the applicant bank and the witness of ths applicant. The applicant has sufficient cause of action for liling the instant application due to disbursemenuavailment of loan to/by the defendants and on default in repayment of the loan by the defendants, inspite of demands made, as per exhibited documents filed by the applicant bank.

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Considering the facts and circumstances of the case, I am of the considered view that the documents tiled by the applicant bank are supporting the claim of the applicant bank and establishing the liability of the defendants. tt is proved that the defendants are liable to pay to the applicant bank lhe claim made in the Original Application. The loan was obtained and documents have been executed on 13.02.20'18, 27.02.2018, 18.12.2018, 14.05.2020 & 09.06.2020. The toan account became NPA on 3'1.03.2021 and the OA has been filed on 03.1,1.2022. Hence, the OA is filed well within the period of timitation and this Tribunal having a jurisdiction to adjudicale the Original Application.

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Considering the version of by Ring-Tshaw Daw Oaulagupu, the appticant,s witness and all lhe 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 murse of business, I hold that the applicant is entifled to get the Recovery Certificate as prayed for.

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ln the result, the prasent Original Apptication No. 446 of 2022 is allowed with cost as under :-

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i) The defendants No. 1 & 2 are joinfly and severally liable to pay to the applicant bank a sum of Rs. 28,42,383.20p (Rupees Twonty_Eight Laca Forty-Two Thousand Thrse Hundrsd Eighty-Thrse and paisa Twsnty) only with pendentelite and future interest @1 1 .1O% per annum with monthly

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',I*,#frryZDRT, Guwah.li

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o.A. 446zozz,oRTcu\ nhiri

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rests from 05.08.2022 till the date of fu paymenurealization and also cost of

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the application.

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The liability of defendant no. 2 will be restricGd to the amounts which were sandioned by the sanction l€tter dated i3.02.20i8 only, i.e. cash sedit of Rs. 9.00 lakhs and term loan of Rs. 2.OO lakhs only.

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

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iiD The applicant bank is also eniifled to proceed against the personal assets and properties of the defendants towards recovery of the duos.

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iv) The applicant bank is entifled to the costs of the O.A. which includes the advocate fees of the applicant bank. Appticant is direcled to file the cost memo within 2 weeks from today.

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v) lssue Recovery Certiticate accordingty for a sum Rs, 2g,42,383.20p (Rupees Twenty-Eight Laca Forty-Two Thousand Thrce Hundred Eighty-Three and Paba Twenty) only in favour of the applicant bank against the defendants No. 1&2,

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vi) Communicate copy of this order to the concerned parties. This order is dictated and corrected by the undersigned.

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Judgment dated 24h October 2024, signed and pronounced in the Tribunal

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today under my signature.

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Copy of the JudgmenuFinal Order be uptoaded in the Tribunat,s Website and file be consigned to Record Room_

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SIirglo44^Mf^4 )+'lo'1-11 II (Shiv Sharan Dubdy) I U Presiding Officer DRT, Guwahati

Bank of India v. Arun Kumar Pandey

Case brief

What is this about?

What did the court decide?

Bank of India v. Arun Kumar Pandey

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

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Case details

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