T.A. No. 77 of 2002. Case: Punjab National Bank Vs Jayadas and Co. P. Ltd. and Ors.. Kolkatta Debt Recovery Tribunals
| Case Number | T.A. No. 77 of 2002 |
| Counsel | For Appellant: Udayan Sen and Anjan Chatterjee, Advs. and For Respondents: None |
| Judges | D.C. Thakur, Presiding Officer |
| Issue | Code of Civil Procedure (CPC) - Order 9, Rule13 r/w Clause (g) of Section 22(2); Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Section 19(1) |
| Citation | I (2004) BC 42 |
| Judgement Date | July 30, 2002 |
| Court | Kolkatta Debt Recovery Tribunals |
Judgment:
D.C. Thakur, J. (Presiding Officer)
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This Tribunal is passing and delivering a judgment in the matter of TA 77 of 2002 in which the applicant Bank has preferred on October 28, 1994 one application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. LI of 1993) before the learned transferring Tribunal against the four respondents. Out of such impleaded four respondents, the respondent No. 1 is a corporate entity incorporated under the relevant provisions of the Companies Act, 1956(Act No. 1 of 1956), whereas the respondent No. 2 is the Managing Director of the said corporate entity and the respondent Nos. 3 and 4 are also the persons having the close relationship with such entity (hereinafter being referred to as the respondent No. 1), in the form of being the guarantors, especially when two deeds of guarantee, which were executed on December 7, 1989 in favour of the erstwhile New Bank of India, Shyambazar Branch, Kolkata Branch, being later merged and amalgamated with the present applicant by those respondent Nos. 3 and 4, are to be taken into consideration.
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Besides, the respondent Nos. 2, 3 and 4 are related to each other. Such relationship may be described in the manner laid down below.
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The respondent No. 3, Smt. Jayashree Das is the wife of the respondent No. 2, Mr. S.B. Das, whereas Shri Sudipta Das, the respondent No. 4 is the only son of the said respondent Nos. 2 and 3. Such shall become evident from those deeds of guarantee signed by those respondents as the guarantors on December 7, 1989; and after having regard to the personal relationship, it may be inferred legitimately but safely that the respondent No. 1 is not only a corporate entity but also a private family company. Such corporate entity is an entity carrying out the business in construction work.
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On October 28, 1994 the applicant Bank preferred the said application before the learned transferring Tribunal for a certificate or an order for payment of Rs. 1,09,07,343.14 P, by the respondents to the said applicant Bank and also an order for an interest from October 26, 1994 till realisation at the rate of 22.75% per annum with quarterly rest as agreed.
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Before dealing with the interaction-process between the present forum and the parties, it is highly necessary to refer, in brief, the factual background, especially responsible for giving rise to a right to bring or commence any legal action against those four impleaded respondents.
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Since 1987, the respondent company availed itself of and enjoyed the credit facilities from the Shyambazar Branch of the erstwhile New Bank of India. From the evidence on affidavit affirmed by Mr. Dipankar Majumder, an officer of the applicant Bank, it appears further that those facilities are of the five kinds being mentioned below:
(a)Term Loan of Rs. 12 lacs;
(b) Term Loan of Rs. 5 lacs;
(c) Cash Credit (Hypothecation) with a limit of Rs. 12.50 lacs;
(d) Cash Credit (A B C) with a limit of Rs. 7.50 lacs;
(e) Bill purchase limit of Rs. 5 lacs instituted by the said corporate entity for the reason of running its business in construction work which shall become further evident, if regard be had to another deed of guarantee executed on July 23, 1992 by which the borrower was found to have agreed to pledge the bills of the reputed companies to the applicant Bank.
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Such enjoyment of the five kinds of credit facilities would become transparent from paragraph 3 of the said affidavit filed before the learned transferring Tribunal on May 20, 1996.
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In that paragraph, it has been specifically contended by the said deponent that the respondent company has duly acknowledged and admitted the liabilities as shown in the said accounts, inter alia, by the documents mentioned in detail there.
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The credit facilities of the several accounts were availed of and enjoyed by the said respondent on the terms and conditions expressly contained in documents and agreements, which are no doubt commercial in nature, executed in favour of the applicant Bank by the said respondent, strictly corresponding to the above facilities under the limits mentioned therein.
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For the purpose of the term loan facilities to the limit of Rs. 12 lacs there were, in fact, executed seven kinds of commercial documents by the respondent company in favour of the applicant; (ii) In respect of the term loan facilities to the extent of Rs. 5 lacs this Tribunal is witnessing from the records maintained in the matter the further execution of another nine kinds of similar...
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