T.A. 68 of 2002. Case: Union Bank of India Vs Daulat Ram Agrawal and Co. and Ors.. Kolkatta Debt Recovery Tribunals

Case NumberT.A. 68 of 2002
CounselFor Appellant: V. Raja Rao and Aparajita Rao, Advs. and For Respondents: M.R. Sarbadhikari and Shibdas Chatterjee, Advs.
JudgesD.C. Thakur, Presiding Officer
IssueBanking Regulation Act, 1949 - Sections 2 and 4; Evidence Act, 1872 - Section 68; Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Section 19(20) and 19(22); Debts Recovery Tribunal (Procedure) Rules, 1993 - Rule 9; Indian Contract Act, 1872 - Section 17; Bankers Books Evidence Act, 1891; Indian Stamp Act, 1899 - Section 36...
CitationII (2006) BC 61
Judgement DateOctober 10, 2005
CourtKolkatta Debt Recovery Tribunals


D.C. Thakur, Presiding Officer

  1. All the material findings like whether the arraying of the defendants has been legitimate or legal, whether the defendants have clearly and beyond any ambiguity or doubt accepted and admitted their liability towards their counterpart in their pleading-cum-written statement or whether the Bank shall be entitled to its entire claim etc. shall be arrived at by any judicial body, after it has read, examined and considered all the materials available on its record which is in nature unchallengeable, undoubtable. The fact whether the defendants have admitted their liability or not towards the Bank shall be simply revealed from their written statement, if the said written statement forming the part of the said record has been examined as a whole and minutely. Again, inasmuch as the admission by any defendant during the pendency or continuance of a legal proceeding has been a matter of judicial concern, the above judicial admission may be brought home to the justice-delivering-system in either of the different ways or means, for example-

    (a) the written statement which may be incidentally full of controversies, or

    (b) through the examination of the maker or author of the said written statement or "otherwise" which may be an application preferred, subsequent to the disputing and controverting written statement being on record.

    It is true and well settled that the written statement should not be accepted and treated as the place of evidence, but such written statement has been indeed the Fora through which its author intends to bring to the direct knowledge of the adjudicating system what he intends to say or submit. It would be much more precise to say that any pleading without any basis or evidence should be called a mere pleading. Evidence is required to lend support to what has been contended or authored in the pleading.

  2. In the present case filed by the applicant Bank, before the learned Transferring Tribunal on November 12, 2001 against the five defendants for the recovery of its dues of Rs. 46,82,532/- along with a contractual rate of interest at the rate of 16.32% per annum from November 12, 2001 with quarterly rests till realisation, this Tribunal has been pleased specifically and on the basis of the sacrosanct record maintained by itself in connection with TA/68/2002 being the renumbering of OA/ 245/2001 after its transfer therefrom to pass its Order No. 30 dated Thursday, March 18,2004 within the framework as prescribed and laid down in Rule 6 of Order XII of the First Schedule to the Code of Civil Procedure, 1908 (Act No. V of 1908). In that elaborate order, the procedure for arriving at a decision to suit best the application of the above legal provision in the present case has been in detail described. That order had been in fact passed in the context of an application preferred by the applicant Bank before this Tribunal fix the sale of the secured mortgaged property to itself being situated at the premises No. 250A and 250/2 G.T. Road, P.S. Liluah, District Howrah; with regard to which the claim of the Bank had been very specific at paragraph Nos. 5,9, page 5 of its claim application which was also accepted by all the defendants in their joint application duly verified by one Shri Shyam Sundar Agarwal (hereinafter referred to as the defendant No. 5) in the following words:

  3. That the applicant Bank filed an application for realisation of the Bank debts in consideration of grant of the credit facility to your petitioner. In this respect an 'Equitable Mortgage' was created in favour of the applicant by deposit of title deed in respect of land measuring 2 Cottahs, 12 Chittacks approximately, within P.S. Liluah in Bally Municipality.

    In that application the said applicants proposed in clear and in unequivocal words before this Tribunal to make the full and final settlement at Rs. 20,00,000/- with an easy instalment basis, the probable source of which could have been obtained by the selling of the property, mentioned and described above. After laying much stress on the intention, purpose lying behind and above application, though made subsequent to the written statement filed on Thursday, March 12,2003 the drawn inferences that have emerged therefrom are being mentioned below:

    (a) admission of debt liability;

    (b) admission as to the intention to create mortgage on the property described hereinabove (though this Tribunal has incidentally in its possession the letter jointly written by the defendant Nos. 3, 4, 5 wherein those defendants have declaredly confirmed the creation of an equitable mortgage in favour of the Bank by means of deposit of title deed dated July 22,1994 in respect of their properties situated at 250-A and 250/2 G.T. Road, Plot No. C-12, Liluah, Howrah as and by way of security for the financial facility granted to the defendant No. 1, a partnership firm etc.); and

    (c) an admission to be followed by the proposal for a sum of Rs. 20.00 lakhs as the full and final settlement with an easy instalment basis;

    (d) the above defendants' intention as the mortgagor-guarantor being expressed clearly through putting the said secured mortgaged property into sale;

    (e) the defendants made on Friday, June 27,2003 another application duly verified by Shri Shyam Sundar Aggarwal as the defendant No, 5 for the intervention of this Tribunal into the above proposed compromise which falls under the existing legal beyond the competence of this Tribunal.

    The said application was in fact an application for the payment through the instalments, this Tribunal did direct by its Order No. 22 the Bank to express its views in relation to the above application of the defendants. Incidentally, the Bank's offered witnesses had to be, like the earlier two occasions, discharged only due to the defendants.

  4. On March 18,2004 all the materials on record maintained in OA No. 245 of 2001 being the renumbering of TA/68/2002 were examined by this Tribunal and during such examination, the exercise of the discretion as vested in it had also been the demand of the situation. As the admission as to the debt liability by the defendants had been clear, unequivocal, unconditional and unambiguous, as the efforts by the defendants markedly evident on March, 18,2004 and June 27,2003 had also been present that day as per the record maintained till that day, this Tribunal applied its judicial conscience, while the theory of reading the pleading in a dissected manner avoided by itself.

  5. Despite the above existing factual features, this Tribunal had to receive further the evidence-on-affidavit from the applicant Bank on Wednesday, December 15,2004, as a result of the order passed on September, 14,2004 by the Hon'ble High Court at Kolkata in connection with Civil Order 3971 of 2004 after directing this Tribunal to proceed afresh in accordance with law. The said evidence-on-affidavit has been affirmed by Shri Amarnath Chatterjee as the Manager of the said Bank.

  6. It is being repeatedly said that Order No. 30 made and passed on March, 18, 2004 has been the resultant of the rigid follow up of a series of procedural steps that have been very much in the present summary proceeding. It is also true that the said order has been passed by this Tribunal to implement the true spirit underlying the object of Order No. XII Rule 6, the guidelines of which have been further prescribed in Rule 5 of that order. It is known to all that notwithstanding the fact that any Tribunal like this shall never be compelled by the Code of Civil Procedure, 1908 (Act No. V of 1908) which has been known to the legal world as the exhaustive, comprehensive, legislative enactment on the principles of natural justice, it has followed and applied the above spirit underlying the aforementioned legal provisions to arrive at the above finding, and in particular to accommodate the five defendants who have been impleaded and sued by the Bank in its claim case. The above legal provisions have, it may be said in a word, been invoked in their favour.

  7. On the basis of their specific intention, this Tribunal could have otherwise put into a sale the above property; instead of doing so it has directed the applicant Bank to place before itself one affidavit. It has also put a number of queries to the concerned, competent officer of the Bank on the above day and date from the angles of usury, damdupat and other allied aspects, and lastly, from the standpoint of Banking Regulation Act, 1949 (Act No. X of 1949] because this Tribunal has found that the defendant, who have in their jointly filed written statement stated at paragraph No. 2, the following:

  8. There is no cause of action for this suit as because admittedly the loan has been sanctioned on 10.12.1999 and this suit has been filed on 12.11.2001 having not given any chance to the defendant to avail benefit of the loan and to repay the same in terms of the sanction.

    have seriously, contended that the contents of paragraph No. 5.13 of the Bank's application have not been admitted and accepted by themselves as the contractual rate of interest, for the said rate has been agreed to be 16.32% by the above answering defendants; and have, in addition to the above contention, put before this Tribunal the claim as such that as the plaintiff Bank has not at all fulfilled and discharged its contractual obligation in the manner, laid down below:

  9. That the answering defendants crave leave to file counter claim as the defendants have not been allowed to withdraw funds from his account after 30th December, 2000. That the plaintiff Bank has not at all indicated that the account is an N.P.A. and when it became so. Plaintiffs own alleged statement of account reflects that the accounts has been operated in a regular manner inasmuch as the defendants have paid interest and there are regular...

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