T.A. No. 157 of 2002. Case: State Bank of India Vs Dipak Thakur and Ors.. Kolkatta Debt Recovery Tribunals

Case NumberT.A. No. 157 of 2002
CounselFor Appellant: P. Sil and Partha Sarathi Banerjee, Adv. and For Respondents: None
JudgesD.C. Thakur, Presiding Officer
IssueRecovery of Debts Due to Banks and Financial Institutions Act, 1993 - Section 19(1); Code of Civil Procedure, 1908 (CPC) - Order 12, Rule 6 - Order 15, Rule 1
CitationIII (2004) BC 103
Judgement DateSeptember 12, 2003
CourtKolkatta Debt Recovery Tribunals


D.C. Thakur, Presiding Officer

  1. The only pertinent issue that stands for the determination by this Tribunal is that whereas the defendants have been found expressly not disputing the claim amount nor the entitlement of the applicant Bank for such an amount, in their written statement which is popularly called the cross or counter pleading, after being placed on the equal footing with a plaint or an application, as the case may be, whether a Court or a Tribunal or an adjudicating body shall be in such typical situation competent to pronounce judgment on admission at the "first hearing" of itself.

  2. Before dealing with the above issue, it is becoming highly necessary to refer in brief the background of such issue, which is being framed this day by this Tribunal.

  3. At the request of the defendant No. 1 for being granted three types of facilities namely (a) Cash Credit (Stock) with the maximum monetary limit of Rs. 5 lakhs; (b) Cash Credit Bills with the limit of Rs. 2 lakhs; and (c) Term Loan Facility, the applicant Bank did become agreeable to sanction those facilities. The above facilities were closely inter-related with the enjoyment of themselves at the initial stage.

  4. Thereafter, on the basis of an application being made by the defendant No. 2, who is actually the owner of the defendant No. 1, the applicant Bank became further pleased to enhance the limit to an another but higher one. Such shall become evident from sub-para (8) of paragraph No. 5 of the application preferred by the applicant Bank. In that sub-paragraph a tabular form has been expressly found adopted by the applicant Bank. So far as the Cash Credit (Stock) facility to the extent of Rs. 5 lakhs is concerned, it was enchanced to Rs. 8 lakhs; whereas the Cash Credit (Bills) for the limit of Rs. 2 lakhs is concerned, the sanction limit was extended to Rs. 9.5 lakhs. The limit fixed for the last facility, being the Term Loan facility, when it has been the subject-matter of discussion, was extended upto Rs. 3.30 lakhs. Such acceptance of the offer for the enhancement was communicated to the defendants by the applicant Bank through the Branch Office (of itself)'s letter No. 21/ AKS dated July 31, 1992.

  5. The enjoyment of those facilities was also conditioned by the agreed credit rate of the commercial interests to be different in respect of three categorised facilities, as mentioned earlier. The credit rate of interest, being 1.75 per cent per annum above SBAR, minimum, 20.75 per cent per annum with quarterly rest was mutually agreed to apply in the case of Cash Credit facility to be followed by another type of interest i.e., 1.25 percent in respect of term loan. Further, it was agreed mutually between the above contracting parties that the said existing rate of interest was subject to any change from time-to-time as per the RBI or Bank's rules. In the letter dated July 31, 1992 the following terms and conditions, which were related to the pledging of the firm's entire current assets including the stocks of raw material, finished goods, stores and spares, etc., hypothecation of bills receivable and other assets to be designated as the primary security and to be followed by other machineries, both existing and to arise in future, third party security of the defendant No. 3 i.e., Smt. Arati Thakur's lien on sum of Rs. 1.50 lakhs within six months which shall be termed as the collateral security, were expressly contained and incorporated, after being meant for being fulfilled and performed by the defendants as the other contracting parties.

  6. The execution of the Demand Promissory Note on July 31, 1992 was done as the condition precedent by the defendant No. 2 in the capacity of being the proprietor of the defendant No. 1 for a sum of Rs. 8 lakhs for the value received with interest to run on and from July 31, 1992 at 1.75 per cent per annum above the State Bank of India Advance Rate (herein being shortened as 'SBAR'), minimum being 20.75 percent per annum, with quarterly rests under the cover of a D.P. Delivery letter dated July 31, 1992 being further, jointly signed by the defendant No. 2 as the proprietor of the defendant No. 1 and the defendant No. 3.

  7. The other four commercial Banking documents were voluntarily and purposively executed in favour of the applicant Bank by the defendant No. 2. The revival...

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