Allowed

State Bank of India v. Messers Ganapati Trading Co.

DRT27 Aug 2024OA/505/2022

Case brief

AI extract

What is this about?

In an ex-parte application under section 19 RDBFIA, the Bank claimed recovery of dues totaling Rs. 34.45 lacs along with future interest from a borrower and guarantors. The Tribunal found the claim valid, the OA within limitation, and issued the Recovery Certificate against the defendants jointly and severally.

What did the court decide?

Recovery Certificate issued for Rs. 34,45,475.63 with future interest at 9.85% p.a.; bank entitled to proceed against secured and personal assets.

State Bank of India versus Messers Ganapati… — Contract and Commercial Disputes | DRT (2024)

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OA 505/202ZDRT.cuwah.

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IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

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(North Eastern Regron)

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

O.A. No.505/2022

ln thg matter of -

STATE BANK OF INDIA

Stressed Assets Recoverv Branch Bamunimaidam, M. R. D. Road. Guwahati-21, District- Kamrup (M), Assam.

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... ..... Applicant

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Vs.

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M/S GANAPATI TRADING CO. Prop. Sri Mintu Sutradhar, Son of Late Matilal Sutradhar, Nayapara, Ward No.7, Bitasipara, Oistrict Dhubri, Assam,^pin-783348.

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2, SRI MINTU SUTRADHAR Son of Late Matilal Sutradhar, Prop M/s canapati Trading Co. Nayapara, Ward No.7, Bilasipara, District- Dhubri, Assam,^pin-783348.

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SRI MANIK SUTRADHAR Son of Late Matilal Sutradhar, Nayapara, Ward No.7, Bilasipara, Oistrict- Dhubri, Assam, Pin-783348.

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SMT ALOKA SUTRADHAR Wife of Sri Manik Sutradhar, Nayapara, Ward No.7, Bilasipara, District- Dhubri, Assam, Pin-783348.

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SRI NANTU SUTRAOHAR Son of Late Matilal Sutradhar, Nayapara, Ward No.7, Bilasipara, Distric! Dhubri, Assam, Pin-783348.

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Oefendants

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Presencs of the Couns6l:

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For the Applicant Mr. K K Nandi, Ms Rochoita Das, Advocates

For the Defendants

None (Ex-parte)

Daled :2710812024

.'sU,al,{ 4,.1"rr^/,n DRT, Guwahali^^n'J'M* 4

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O.A. 5052022/ORT-cuwahali

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JUDG ENT

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This is an application under section Igof the Recovery of Debts Oue to Banks and Financial lnstitutions Act, 1993 fited by the STATE BANK OF tNDtA, Stressed Assets Recovery Branch, Bamunimaidam, M. R. D. Road, Guwahati-2l, District_ Kamrup (M), Assam, with a prayer to issue Recovery Cenificate for the sum of Rs. 34,45,475,63 (Rupee3 Thirty-Four Lakhs Forty-Fivo Thousand Fou. Hund.ed Seventyflve.nd Pai.a Sixty-th.os) only as on 29.1|0.2022 against the defendants with pendentelite and future interest at the rate of g.g5% per annum with monthly rests till realization along with cost and other relief.

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A few fac-ts giving rise io the present application are as under.

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The defendant no.1 is a proprietorship firm which deals in trading of Soft drink,^juice beverages and the defendant nos.2 is the proprietor of defendant no 1 firm. The defendant no I availed various credit facilities from the applicant bank. The defendant nos. 2, 3, 4 and 5 are the guarantors in their personal capacities of the credit facilities availed by the defendant no 1 from the applicant bank. The defendant no. 1 represented by its proprietor being defendant no. 2 approached the applicant bank for financial assistance for the purpose of its business by submitting an application dated 21.01.2010. The applicant bank upon consideration of lhe said application daled 21.0'1.2010 sanctioned cash credit facility of Rs. 9,50,000.00 to the defendanl no. 1 vida letter of arrangement dated 25.02.2010. The terms and condilions of lhe arrangement letter dated 2S.O2.2O.IO was duly accepted by tha defendant no.1 and as a token of acceptance of the same the defendant no. 2 as proprietor of the defendant no. 1 and the defendant nos. 3, 4 and Hansraj Sethia in their personal capacities have signed in the arrangement lefter of having accepted the lerms and conditions. lt was the terms and conditions of the arrangement letter that the effective rate of interest in the cash credit account being 12.5Oo/o pd annum calculated on daily balance of the loan amount at monthly rests. The rala of interest is subject to revision from time to time in accordance with the guidelines of the applicant bank and/or Reserve Bank of lndia.

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SLil l.L4sr^qrLt1 ,.",0'"n]fl'r['< d ORT. Guwahati

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O.A sorzoz2lDRT-Cuwrh.ti

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The applicant bank is entifled to charge at its discretion enhanced interest rate on accounts eilher on the entire outstanding or on any portion thereof for any irregularity including non-observance or non-compliance of tarms and conditions of advance for such period as lhe bank deems it necessary.

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Tha defendant no.1 availed the cash credit facilities from the applicant bank and the defendant no 2 as proprietor of defendant no t have executed the following documents duly filled-up in favour of the applicant bank:_

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(a) Agreemont of loan-cum-hypothecation dated 25.02.2010.

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The defendant no.i availed the credit facilities from the applicant bank and the defendant nos. 3,4 and Hansraj Sethia in their lndividual capacitios stood as guarantors of the credil facilities availed by the defendant no. 1 from the applicant bank and have executed Guarantee Agreement on ZS.O2.2O1O by which they have agrged to the contents reciled therein and have made themselves joinfly and severally liable for the entire outstanding in the loan accounl with intersst to the applicant bank.

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The defendant no 2 being the proprietor of defendant no 1 executed revival lettar dated 02.01.2013 in respect of the documents executed by him on 25.02.2010 pertaining to the cash credit facitity availed by the defendant no^.t from the applicant bank.

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Tha defendant no 1 represented by its proprietor being dafandant no. 2 approached the applicant bank for enhancement of the cash credit facililies by submitting an application dated 02.01.2013. The applicant bank upon consideration of the said application dated 02.01.2013 enhanced the cash credit tacility to Rs 20,00,000.00 vide arrangement letter dated 19.04.2013. The terms and conditions of the arrangement letter dated 19.04.2013 was duly accepted by the defendant no.l and as a token of acceptance of the same the defendant nos.2 as proprietor of defendant no I and defendant nos. 3 and Hansraj Sethia in their personal capacity have signed in the arrangement letter of having accepted the terms a

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tU*.,^"n ,m,r#{6l'q d

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conditions. lt was the terms and conditions of the arrangement lener that the efrective rate of interest in the cash credit account being 13.20% per annum calculated on daily balance of the loan amount at monthly rests, The rate of interest is subject to revision from time to time in accordance with the guidelines of the applicant bank and/or Reserve Bank of lndia. The applicant bank is entitled to charge at its discretion enhanced interest rate on accounts either on the entire outstanding or on any portion thereof for any irreguladty including non-observance or non- compliance of terms and conditions of advance for such period as the bank deems it necesaary.

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The defendant no.1 availed of the enhanced cast credit facilities from the applicant bank and the defendant no.^'l representBd by its proprietor being defendant no.2 have executed Supplemental Agreement of Loan cum Hypothecation dated 19.04.2013 and by the said document the defendant no 1 have agreed to the terms and conditions recited therein amongst which it was agreed that the agreemBnt is supplemental to the Agreement of Loan cum Hypothecation dated 25.02.2010. That the defendant no.1 further agreed that lhe assets hypothecated and charged in tavour of the applicant bank shall stand charged in favour of the applicant bank as continuing security by way of first charge. lt was agreed upon that all the terms and conditions and that all the covenants, terms and conditions to be observed and performed by the defendant no.'l and all the rights remedies conferred on the Bank by/ under the agreement shall apply and extend to the additional limit in the existing facilities granted by the bank upto the enhanced aggregate limit of Rs 20,00,000.00.

¶42

The defendant no. 1 represented by defendant no. 2 as its proprietor and defendant no. 3 in his individual capacity executed revival letter on 08.04.2016 pertaining to the documents executed by them on 25.02.2010 and 19.04.2013 in respect of the credit facility availed by the defendant no. 1 from the applicant bank.

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The defendant no.1 availed the enhanced credil faciliiies from tha applicant bank and the defendant nos. 3 and Hansraj Sethia in their individual capacities

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sr,,r4{ffi*S"} Frurorng umcr I I (l ORT. cuwahiti

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O A 505/2022lDRT-Guwahah

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stood as guarantors of the credit facilities availed by the defendant no. 1 from the applicant bank and have executed individual Guarantee Agreement both dated 19.04.2013 by which they have agreed to the terms and conditions recited therein and have made themselves^jointly and severally liable for the entire outstanding in the loan account with interest to the applicanl bank.

¶47

The defendant no. 1 represented by its proprietor being defendant no. 2 approached tha applicant bank for enhancement of the cash credit facilities by submitting a letter dated 30.11.2017. The applicant bank upon consideration ofthe said letter dated 30.11.2017 enhanced the cash credit facility to Rs 39,00,000.00 vide arrangement letter dated 06.12.2017. The terms and conditions of the arrangoment letter dated 06.'12.2017 was duly accepted by the defendant no.'l and as a token of acceptance of the same the defendant no. 2 as^proprietor of defendant no. I and defendant nos. 3, 4 and 5 in their^personal capacities have signed in the arrangement letter of having accepted the tarms and conditions. lt was the terms and conditions of the arrangement letter that lhe effective rate of interest in the cash credit account being 11.000/o per annum calculated on daily balance of the loan amount at monthly rests. The rate of interest is subject to revision from time to time in accordance with the guidelines of the applicant bank and/or Reserve Bank of lndia. The applicant bank is entitled to charge at lts discretion enhanced interest rate on accounts either on the entire outstanding or on any portion thereof for any irregularity including non-observance or non-compliance of terms and conditions advance for such^period as the bank deems it necessary.

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The defendant no.1 availed of the enhanced cash credit facilities from the applicant bank and lhe defendant no. 1 represented by its^proprietor being defendant no.2 have executed Supplemental Agreement of Loan cum Hypothecation dated 06.12.2017 and by the said document the defendant no'l have agreed to the terms and conditions recited therein amongst which it was agreed that the agreement is supplemental to the Agreement of Loan cum Hypothecation. The dafendant no.'l fufther agreed that the assets hypothecated -

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slir&{a-&.(A.,lq, r,*r.n &dof,[,'t I DRT. Guwahati

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O A 505/2022lDRT-Guwahali

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and charged in favour of the applicant bank shall stand charged in favour of the applicant bank as continuing security by way of first charge.^{That it} was agreed upon that all ths terms and conditions and that all the covenants, terms^and conditions to be observed and^performed by the defendant^no.1 and^{all the rights} remedies conferred on lhe Bank by/ under the agreement^{shall apply and extend to} the additional limit in the existing facilities^granted by the bank^{upto theenhanced} aggregate limit of Rs 39.00 lacs.

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The defendant no.1 availed the enhanced cash credit facilities from the applicant bank and the def6ndant nos.3,4 and 5 in their^{individualcapacities} stood as^guarantors of the credit facilities^{availed by the defendant no. 1 from the} applicant bank and have executad the following duly filled^{up documents in favour} of ths applicant bank:

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(e) Guarantee Agreement daled 05.12.2017 which was executed on 06.12.20'17, and by the said agreement they^have agreed^{to the terms and conditionsrecited} therein and have made themselves^{jointly and severallyliabla for} the^entire outstanding in the loan account with lnterest to the^{applicantbank.}

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(b) Consent Clause dated 06.12.2017 by the defendant nos. 3, 4 and 5 by which they gave consent to the applicant bank for disclosure by the^{applicant bankof all} information and data relating to them, regarding credit,^{facility granted by the bank} and delault, if any, committed by them.

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The defendant no I approached the applicant bank for renewal of cash credit facility at the existing limit and for^grant of^fresh term^{loan (GECL). The} applicant bank upon consideration of the^prayer so^maderenewed the^existing cash credil facility at Rs. 39,00,000.00 and have sanctioned Term^{loan (GECL)} of Rs. 7,75,300.00 thus totaling Rs. 46,75,300.00 in favour of the defendant no I vide letter of arrangement dated 01.06.2020. The terms and conditions of the letter of arrangement dated 01.06.2020 was duly accepted by the defendant no. 1 and as a token of acceptance of the same the defendant no. 2 as^proprietor of defendant no

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'l and the defendant no. 3 in his individual capacity have signed in the arr3ngement

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Sl.!)

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Presiding oRT, Guwahali

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oA 5o5a2ozz4)Rt€uwahati

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lettgr of having accepted the terms and conditions. lt was also the terms and conditions of the arrangemenl lefter that the effective rate of interest in the cash credit account being 9.85% per annum calculated on daily balance of the loan amount at monthly rests. The etfective rate of interest in the term loan (GECL) account being 7.8070 calculaled on daily balance of the loans amount at monthly rests. The defendant no t have agreed to repay a term loan (GECL) in 36 months as mentioned in the arrangement letter. The rate of interest is subject to revision from time to time in accordance with the guidelines of the applicant bank and/or Reserve Bank of lndia. The applicant bank is entifled to charge at its discretion enhanced inlerest rate on accounts either on the entire outstanding or on any portion thereof for any irregularity including non-observance or non-compliance of terms and conditions of advance for such period as the bank deems it necessary.

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The defendant no.'l availed of the renewed cash credit facalities and term loan (GECL) from ths applicant bank and the defendant no. 1 represented by its proprietor being defendant no. 2 have executed Supplemental Agreement of Loan cum Hypothecation dated 01.06.2020 and by the said document the defendant no 1. hav6 agreed to the terms and conditions recited therein amongst which it was agreed that the agreemenl is supplemental to the Agreement of Loan cum Hypothacation. The defendant no.l further agreed that the assets hypothecated and charged in favour of the applicant bank shall stand charged in favour of the applicant bank as continuing security by way of rirst charge. lt was agreed upon that all the terms and conditions and that all the covenants, terms and conditions to be observed and performed by the defendant no. I and all the rights remedies conferred on the Bank bylunder the agreement shall apply and extend to the additional limit in the existing facilities granted by the bank upto the enhanced aggregate limit.

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The defendant no.1 availed the credit facilities from the applicant bank and the defendant nos. 3, 4 and 5 stood as guarantors of the credit facilities availed by

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0a 505t2o22DRT€uy.h.U

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the defendant no 1 from the applicant bank and have executed Guarantee Agreement dated 01.06.2020 by which they have agreed to the terms and conditions recibd therein and have made themselves joinfly and severally liable for the entire outstanding in the loan account with interest to the applicant bank.

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The defendant no.1 availed the credit facilities from the applicant bank but in violation of all terms and conditions of the letter of arrangement and the agreement, the def€ndants failed and neglected to abide by the terms and conditions of the letter of arrangement and agreement as well as the defendants failed and negl€cted to repay the loan amount with interest.

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The applicanl bank by its personal contacts through its officors on various occasions urged the defendants to deposit the outstanding dues and to regularize the loan accounts. Tha defendants did not pay any heed to the personal contact of the applicanl bank and did not care to make repayment of the outstanding dues in ih6 loan accounts. The applicant bank has sent notice of demand dated 24.02.2022 upon the defendants for payment of the outstanding dues in the loan accounts. The defendants inspite of having received the said notic€ have failed to regularize the loan accounls and have also failed to pay the outstanding dues in the loan accounts. The loan account of lhe defendant no 1 became NpA more so due to the negative attitude of the defendants.

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As the loan account being the cash credit account of the defendant no.1 was running extremely irregular, and due to non- payment of principal amount and interest, the said account was classified as a non-performing assat on 28.02.2022. The applicant bank stopped applying interest on the outstanding amount with effect lrcm 0'1.O3.2022. Th6 amount due to the applicant bank with interest applied upto 28.02.2022 is Rs.41,06,891.03 in its account no.3'1072967495 being the cash credit account of the defendant no.'l as maintained by the applicant bank in its ordinary regular and usual course of business. The closing balance in the cash credit account as on 28.10.2022 is Rs. 25,46,064.97. The applicant bank has applied interest on the outstandjng amount of the defendant No 1 at differpnt rales

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otlr{ Presiding DRT, Guwahali

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Or{. 5o5zo2zD8l€u*ahati

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as per guidelines / prescribed rate of the applicant bank / Reserve Bank of lndia fixed from time to time.

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The penal interest capitalized in the cash credit account being Rs. 9,764.48 is deducled from the claim of the applicant bank and the same is deducted from the balance on 28.02.2022 being Rs. 41 ,06,89j.03 and is reftected in second entry in the calculation of unapplied interest calculation. The applicant bank has annexed the detail of the penal interesl charged in the cash credit account duly certiried by the Chief Manager and Deputy Manager of the applicant bank.

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The interest accrued but not applied lrom 01.03.2022 to 28.10.2022 al different rales from time to time as per rate fixad by the applicant bank is Rs. 3,42,230.88. The applicant bank has charged the interest after taking into consideralion the related transaction of the sald period. Thus, the total amount due to the applicant bank inctusive of interest upto 28.10.2022 is Rs. 26,58,120.42. fhe defendant nos. 1, 2, 3, 4, and O are joinfly and severally tiable for the amount claimed by the appricant bank with cost and future interest at the contractuar rate being 9.85% per annum calculated on the daily balance with monthly rests from the date of filing of this apptication.

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As lhe loan account being the Term Loan (GECL) account of the defendant no.1 was running extremely irregular, and due to non_payment of monthly installments the said account was classified as non-performing asset on 28.02.2022. The applicant bank slopped applying interest on the outstanding amount with effect from 01.03.2022. The amount due to the appticant bank with interest applied lplo 28.02.2022 is Rs. 7,46,249.00 in its account no.3936660,1815 being the Term Loan (GECL) account of the defendant no.1 as maintained by the applicant bank in its ordinary regular and usual course of business. The closing balance in the Term Loan (GECL) account as on 28.10.2022 is Rs. 7,29,031.00. The applicant bank has applied interest on the outstanding amount of the defendant no 1 at different rates as per guidelines / prescribed rate of the applicant bank / Reserve Bank of lndia fixed from time to time.

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O A. 5o5zo2zoRT€uw.hati

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The interest accrued but not apptied trcm 0,t.03.2O22 to 28.10.2022 at different rates from time to time as per rate fixed by the applicant bank is Rs. 41,106.22. The applicant bank has charged the interest aftar taking into consideration the related transaction ot the said period. Thus, the total amount due to the applicant bank tnclusive of interest upto 29j0.2022 is Rs. 7,g7,305.2.t. The defendant nos.^'1, 2, 3,4 and 5 are join y and severally liable for the amount claimed by tho applicant bank with cost and future interest at the contractuar rate from the date of filing of this application. The applicant bank have not charged any penal interest in respect of term loan account no. 3936660191S.

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Both loan accounts being cash credit account no 31072967495 and term loan account no 39366601815 taken together applicant bank claims an amount of Rs.26,58,120.42 + Rs. 7,87,355.2.1 totating Rs. 34,45,475.63 from the defendants jointly and severally with future interest at g.g5% per annum calculated on the daily balance with monthly rests from the date of filing of this application and cost.

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The applicant bank filed certified copies of the statement of account nos. 31072967495 and 3936660'l815 duty certified by the Chief Manager and Oeputy Manager of the applicant bank. The appricant bank has arso fired carcuration of unapplied interest from 01.03.2022 to 2A10.2022 in respect of the above mentioned loan accounts duly certified by the Chief Manager and Deputy Manager of the applicant bank.

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The applicant bank thus became constrained to file the present Original Applicalion for the recovery of R3. 34,45,425.63 (Rupees Thirty-Four Lakh FortyFiv6 Thouaand Four Hundred Seventyr-Five and paisa Sixty_three) only as on 28.10.2022 along with interest and cost of the apptication.

¶83

Affer tiling of tha OA the Tribunat issued noticas upon the defendants through registered post and the applicant bank filed service report on Og.O2.2O2g and brought on re@rd the postal receipts along with track consignment report which shows that the notice has been delivered upon lhe defendant No. 5 and notices have not been

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detivered upon the defendants No. 1,2,3 & 4. Thereaffer the fr'bunat ordelelflaffiArr

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P,esidins otr3fl8 ORT. Guwahali

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O A 505I2022/ORT Glwahatr

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publication of notice upon the defendants No. 1,2,3 & 4 and the^{applicantbank} issued notice to the defendants^{No. 1,2,3 & 4 throughPaper Publication in two} newspapers namev 'fhe Times of^{lndia" and "DainikAssam" bothdated 22.02.2023.} Even afrer^proper seNice of^{notice uponthe defendant No. 5 and even afterissuing} notice through^{paperpublication} upon^{the defendants No l,2,3 & 4 there has beenno} representation on behalf of the^{defendantsNo. 1,2,3,4 & 5 either by the counselor the} person and hencs the defendants No. 1,2,3,4 & 5 were set ex-parte on^16.052023 and the malter was^{posted for ex-parte hearing on behalfof the applicant bank}

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Supporting the claim of the^{applicant bankSmti Sampriti Bordoloi, Chief Manager} of the Applicant Bank has^{filed evidence on afiidavit mupled withthe securitydocuments} marked as E)dibit¹ to²⁶ supporting^{the claimof the applicant bank.}

¶90

Heard lhe leamed counsel for the applicant^{bankwho prayed for issuance of} Recovery Certificate against the defendants^{as per pleadings madein the Application,} supported by evidence on affidavit^{of their witnesswho affirmed on oath lhe execulion} of the security and other^{documentsby the defendants and also executionof their own} documents relied upon, which have been^{marked exhibits.}

¶91

Considering the facls and^{circumstancesof the case, I am of the considered} view that the document^{filed by the applicantbank are supporting the claim of} the applicant bank and establishing^{the liability of the defendants.lt is proved that the} defendants are^jointly and severally^{liable to pay to the applicant bank the claim made} in the Original Application.^{Theloanswere obtainedand documentshave been} executed on 25.O2.2O1O,^{19.04.2013,06.12.20'17& 01.06.2020.Revival Letters are} dated 02.01.2013 & 08.04.2016.^{The accounts became NPA on 28 02.2022 and lhe} OA has been filed on^{08.12.2022. Hence,the OA is filed well within the period of} limitation and this Tribunal having a^jurisdiction to^{adjudicatethe Original Application.}

¶92

Considering the unchallenged/unrebutted^{versionof Smti Sampriti Bordoloi,the} applicant's witness and all the documents^{marked as exhibits, includingduly certified} copy of the statement of ac@unt along with interest^{calculation sheet maintained by} shi;p0An^ ,,"",0'"n o,P""df^tr DRT. Guwahalr^'

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O.A. 5Ot2O2zlORT€uMh.u

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the applicant Bank in it's regular murse of businass, I hold that the applicant is entjtled to get the Recovery Certificate as prayed for.

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ln the result, the present Original Application No. SOS of 2022 is allowed with cost as under: -

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(i) The defendants No. i,2,3,4 & S are jointy and severally liable to pay to the applicant bank a sum of fu. 34,45,475.63 (Rup6os Thirty-Four Lakhs FortyFive Thousand Four Hundred Seventy-Five and paisa Sixty-three) only with pendentelite and future interest @9.gS% p.a. with monthly rests from 29j02022 till the date of full paymenurealization and also cost of the application.

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

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

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(iv) The applicant bank is entitled to the costs of the O.A. which includes the advocate fees of the applicant bank. Applicant is directed to file the cost memo within 2 weeks from today.

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(v) lssue Recovery Certificate accordingly for a sum Rs. 34,45,,175.63 (Rupeeg Thirty-Four Lakhs Forty-Five Thousand Four Hundred Soventy-Five and Pai3a Sixty-three) only in favour of the applicant bank against the defendants No. 1,2,3,4 & 5.

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(vi) Communicate copy of this order to the concemed parties.

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This order is dictated and corrected by the undersigned.

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Judgment daled 27b August' 2024, signed and pronouncad in 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 Website and file be consigned to Record Room.

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sl.l)!0,,q,(ar^ ,.n,,.n"."n3?il3f;1' Presiding Officer DRT, Guwahati.

State Bank of India v. Messers Ganapati Trading Co.

Case brief

What is this about?

What did the court decide?

State Bank of India v. Messers Ganapati Trading Co.

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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