T.A. No. 176 of 2002-DRT-III. Case: State Bank of Hyderabad Vs Preetam Shoes and Anr.. Kolkatta Debt Recovery Tribunals
| Case Number | T.A. No. 176 of 2002-DRT-III |
| Counsel | For Appellant: Prabhat Sil, Adv. and For Respondents: None |
| Judges | D.C. Thakur, Presiding Officer |
| Issue | Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Sections 2 and 22(2); Bankers' Book of Evidence Act - Section 3; Banking Regulation Act, 1978 - Section 21(A); Evidence Act, 1872 - Sections 17 and 21; Constitution of India - Article 141 |
| Citation | III (2004) BC 132 |
| Judgement Date | October 07, 2002 |
| Court | Kolkatta Debt Recovery Tribunals |
Judgment:
D.C. Thakur, Presiding Officer
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Mr. Prabhat Sil, the learned Advocate appears for the applicant Bank.
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Shri Sakil Ahmed, Assistant Manager of the applicant Bank has also been found present this day.
Shri Pangiliba Ao, Manager of the applicant Bank has even this day been offered as P.W. No. 1 for cross-examination.
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Like the previous occasions, neither of the respondent Nos. 1 and 2 has appeared this day before this Tribunal.
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Since Shri Pangiliba Ao has affirmed the affidavit on evidence filed before this Tribunal on August 22, 2002, a right to conduct cross-examination of the said deponent has accrued in favour of those respondents; and accordingly, this Tribunal has offered them several opportunities to conduct the cross-examination, statutorily conferred, which a trying Court or a Tribunal is bound to give the opposite parties or respondents.
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But, on neither of the occasions namely on August 22, 2002 and on September 30, 2002, Shri Pangiliba Ao has not been cross-examined as P.W. No. 1, resulting in closing the cross-examination of him to be conducted.
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On August 18, 2000, the applicant Bank has preferred one Section 19 application for an order of realisation of Rs. 10,36,409.57 p against those two respondents namely, (i) M/s. Preetam Shoes, a proprietorship firm (hereinafter to be referred to as the 'respondent No. 1') and (ii) Bahadur Singh Kathotia, the respondent No. 2.
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The said proprietorship firm is engaged in running the shoe business under the proprietorship of Shri Mahadev Roy, son of late M.M. Roy. Not only that, the respondent No. 1 was also engaged, as the principal respondent, in the business in the manufacture of shoes for consumption within the State of West Bengal, whereas the role of a guarantor was assigned to the respondent No. 2. Such guarantee was to be executed by the said respondent in favour of the respondent No. 1 for the reason of being sanctioned the credit facilities by the applicant Bank.
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Not only that, as per the stipulation contained in the contract of personal guarantee, such personal guarantee has been undertaken by the respondent No. 2 to pertake the character of a continuing guarantee in respect of even a contingent situation.
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The contract for debt is a contract entered into between the applicant Bank on the one hand and the respondent No. 1 on the other. For the reason of availing itself of the cash credit facilities from the former on the basis of execution of several commercial but Banking documents, such ones were compulsorily executed by the respondent No. 1 in favour of the applicant Bank. Of such executed commercial but Banking documents, the security document was one and of the vital specific importance.
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For the reason of fortifying such a debt-contract to be founded on the enjoyment of cash credit facilities, the respondent No. 2 further came forward and mortgaged the immovable property belonging to himself with the applicant Bank, as a result of which a charge was created from the date of entering into the contract as above; the details of such mortgaged properties, appearing to be a simple equitable one, would appear evident from the contention of the applicant Bank as contained in paragraphs 5, 9, pages 12 and 13 of its own application.
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The particulars of the above mortgaged properties have been set forth below:
In consideration of the applicant Bank having agreed to grant and/or granting, sanction and/or sanctioning credit facilities to the defendant No. 1 upto an overall limit of Rs. 9.75 lacs, the defendant No. 2 agreed to secure the said credit facilities by creating mortgage of his immovable property being all that the ground floor of the two storeyed brick built messuage tenement of dwelling house together with the land thereunto belonging whereon or on part whereof the same is erected and built containing an area of one cottah six chittacks and two square feet be the same a little more or less situate, lying at and being premises No. 44C Dr. Sarat Banerjee Lane, Calcutta-700029 within the limits of the Calcutta Municipal Corporation more fully described in the Schedule 'B' hereunder by way of security for the amounts, due and payable to the Applicant from the defendant No. 1.
PARTICULARS OF MORTGAGE
Name of the Mortgagor: Bahadur Singh Kathotia.
Name of the Mortgagee: State Bank of Hyderabad.
Date of...
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