This is an application under section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 filed by the State Bank of India, a body corporate, duly constituted under the State Bank of India Act, 1955 carrying on banking business through its diverse branches and in particular through a branch named State Bank of India, Tezpur Evening Branch, Tezpur, Assam and represented by Deputy Manager, State Bank of India, Stressed Assets Recovery Branch (SARB), Opposite Bidyut Bhawan, Na Ali, Jorhat-785001, Assam, with a prayer to pass an order for the Recovery of Rs. 47,15,958.11 (Rupees Forty Seven Lacs Fifteen Thousand Nine Hundred Fifty Eight and Paisa Eleven) only in favour of the applicant bank against the defendants jointly and severally with pendentelite and future interest @12.70% per annum till realization, along with other relief. The facts in brief giving rise to the present application are as under. That defendant No. 1 is a proprietorial firm deals in manufacturing and trading of paints and related products etc and defendant No. 2 to 5 are the partners of the defendant No. 1 firm. The defendant No. 2 to 5 are also the mortgagors ( lease hold right) to the loan availed of by the defendant No. 1 firm. The say of the applicant bank is that the defendant No. 6 being the lessor has been impleaded as a proforma defendant in this case and the applicant bank has no direct claim against him, but if he contest the case, he may be treated as a main defendant and the case may be proceeded against him also in accordance with law. That the defendant No. 2 to 5 had approached the applicant bank and applied for financial assistance vide a Loan Application dated 08.05.2015 and the applicant bank after due consideration had sanctioned vide Letter of Arrangement dated 02.07.2015 sanctioned a Term Loan of Rs. 20.00 lacs only and Cash Credit Loan of (Contd/) Rs. 20.00 lacs with interest @ 12.70% per annum with monthly rates and the defendants No. 2 to 5 had signed and executed the said Letter of Arrangement and thereby agreeing to the terms and conditions laid down therein. That in connection with the sanction of the above mentioned loan facilities sanctioned by the applicant bank and availed by the defendant No. 1 firm, the defendant No. 2 to 5 had signed and executed an Agreement of Loan-cum- Hypothecation dated 02-07-2015 and thereby hypothecated the stocks, assets etc of the defendant No. 1 firm described in Schedule A and also agreed to abide by the terms and conditions laid down therein. That the defendant No. 2 to 5 had stood as personal guarantor to the loan availed of by the defendant No. 1 firm by signing and executing one Guarantee Agreement dated 02-07-2015. That besides the securities for repayment of the above mentioned loan facilities, the defendant No. 2 to 5 had created equitable mortgage of lease hold right of a plot of land possessed by them in favor of the applicant bank by deposit of Title Deed and other relevant documents. That the defendants No. 2 to 5 had confirmed the creation of equitable mortgage of the lease hold right of a plot of land possessed by them described in Schedule B by deposit of Title Deed and other relevant land documents by signing and executing one Confirmation Letter dated 06-07-2015. That the defendants have agreed to comply with the terms and conditions of the letter of arrangement and other relevant agreements and documents executed in connection with the aforesaid loan facilities sanctioned by the applicant bank. It is the say of the applicant bank that the loan was availed of by the defendants and all transactions entered in one of its ordinary book of accounts maintained in the regular course of business of the bank but the defendants failed to regularize the loan account inspite of several requests and demands made by the applicant bank. The applicant bank had demanded and requested the defendant through Notices dated 01.03.2016 , Call Up Notice dated 28-07-2016 and also Legal Notice 03.08.2016, (Contd/) Notice U/s 13(2) of the SARFAESI Act, 2002 dated 25-05-2017 to regularize the Loan Account by paying the outstanding amount, but the defendants failed to make any payment thereof. It is the say of the applicant bank that the statements of accounts maintained by the applicant bank in the usual and ordinary course of business shows that the Term Loan Account became NPA on 29.02.2016 and the total outstanding in the Term Loan Account comes to Rs. 19,50,426.00 + Rs. 3,74,959.48(interest accrued but not applied) = Rs. 23,25,385.48 only and similarly the Cash Credit Loan Account became NPA on 31.07.2016 and the total outstanding in the Cash Credit Loan Account comes to Rs. 20,63,852.50 + Rs. 2,71,520.13 (interest accrued but not applied) = Rs. 23,90,572.63 only and hence the total outstanding in both the loan accounts comes to Rs. 23,25,385.48 (Term Loan) + Rs. 23,90,572.63 (Cash Credit Loan) = Rs. 47,15,958.11. The applicant bank thus became constrained to file the present application for the recovery of the loan amount along with interest and cost of the application. The defendants had neither appeared nor filed any written statement in the instant case despite sending of notices through registered post and publication of notice in the newspaper, namely The Assam Tribune and The Dainik Assam both dated 10.10.2017 and as such, on 08.11.2017 an order was passed by the Tribunal to proceed ex-parte against the defendants and their right to file written statement cum evidence on affidavit was closed. The Applicant Bank in support of its case has filed evidence on affidavit affirmed by Shri Prasanta Kumar Sarmah, the Deputy Manager of the Applicant Bank and also relied upon the following documents:- Sl. No. Name of the documents Exhibit No.
1 Gazette Notification A-1/1
2 Deed of Partnership dated 28-02-2014 AW-1/1
3 Loan Application dated 08-05-2015 and Letter of Arrangement dated 02-07-2015 AW-1/2 & AW-1/3
4 Agreement of Loan-cum-Hypothecation dated 02-07-2015 AW-1/4
5 Guarantee Agreement dated 02-07-2015 AW-1/5
6 Registered Agreement of Lease No. 798 dated 02-07-2014, Deed of Sale No. 1052 dated 16-07-2002, Jamabandi dated 11-05-2015, Trace AW-1/6, AW- 1/6(a), AW-1/6(b), AW-1/6(c), AW- (Contd/) Map dated 11-05-2015, Certificate from the Sub- Registrars Office dated 12-05-2015, Revenue Paying Receipt dated 13-05-2015 and Affidavits dated 27-05-2015. 1/6(d), AW-1/6(e), AW-1/6(f) and AW-1/6(g)
7 Confirmation letter dated 06-07-2015 AW-1/7
8 Notices dated 01-03-02016, Letter dated 01-04-2016 issued by the defendant No. 2, Call up Notice dated 28-07-2016, Legal notice dated 03-08-2016, Notice under section 13(2) of the SARFAESI Act, dated 25-05-2017 AW-1/8, AW- 1/8(a), AW-1/8(b), AW-1/8(c), AW- 1/9, AW-1/10, AW-1/10(i), AW- 1/10(a)(i), AW- 1/10 (b), AW- 1/10(b)(i), AW- 1/10(c), AW- 1/10(c)(i), AW- 1/11(a), AW-1/12, AW-1/12(a), AW- 1/12(b), AW- 1/12(c) & AW- 1/12(d)
9 Valuation Report dated 17-06-2017 AW-1/13
10 Certified copies of the statements of accounts . AW-1/14 & AW-1/15 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 execution of their own documents relied upon, which have been marked exhibits. I have carefully perused the documents on record including original application, evidence on affidavit and exhibited documents. The documents executed by the principal borrower from time to time are duly proved by the applicant bank and the witness of the applicant. It is also found that the claim is within the period of limitation. The applicant has sufficient cause of action for filing the instant application due to disbursement/availment 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. Considering the unchallenged/ unrebutted version of by Shri Prasanta Kumar Sarmah the applicants witness and all the documents marked as exhibits, including duly certified copy of the statement of account maintained by the applicant Bank in its (Contd/) regular course of business, I hold that the applicant is entitled to get the Recovery Certificate as prayed for. In the result I pass the following order : O R D E R Issue Recovery Certificate in favour of the applicant bank for a sum of Rs. 47,15,958.11 (Rupees Forty Seven Lacs Fifteen Thousand Nine Hundred Fifty Eight and Paisa Eleven) only against the defendants No. 1,2,3,4 & 5 jointly and severally with pendentelite and future interest @12.70% per annum with quarterly rests till realization and also cost of the application. The charge of the certificated amount be kept alive on the hypothecated property described in Schedule A annexed to the application till the amount is realized in full, under the certificate. The charge of the certificated amount be kept alive on the mortgaged property
i.e. a plot of land measuring 10000 sq ft. (3.47 kathas) covered by Dag No. 237 of periodic patta No. 13 situated at Bhomoraguri, Mouza- Mahabhairab, P.S. Tezpur in the District of Sonitpur, Assam possessed by the defendant No. 2 to 5 ( lease hold right) and is bounded by :- East :- Dushmanta Lahkar, West :- Abdul Barek Khan, North :- National Highway, South:- Habib Khan, described in Schedule B annexed to the application till the amount is realized in full, under the certificate. This order is dictated and corrected by the undersigned and pronounced in the open Tribunal under the signature of the undersigned on this day the 28th day of February 2018. The file be consigned and sent to the record room after the Recovery Certificate is issued to the learned Recovery Officer to recover the certificated dues as per provisions of the law. Let copy of this order be served to the parties. (VIJAY KUMAR GARG) Presiding Officer DRT, Guwahati. (Contd/)