O.A. No. 27 of 2002. Case: United Bank of India Vs Shri Anupam Jain and Ors.. Kolkatta Debt Recovery Tribunals

Case Number:O.A. No. 27 of 2002
Party Name:United Bank of India Vs Shri Anupam Jain and Ors.
Counsel:For Appellant: D.B. Das, Swapnadip Das and E. Bhattacharjee, Advs. and For Respondents: Anupam Jain, Adv.
Judges:D.C. Thakur, Presiding Officer
Issue:Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Sections 19(1), 19(20), 19(22), 31A and 31A(1); Limitation Act, 1963 - Sections 5 and 24; Legal Service Authorities Act, 1987 - Section 21; Code of Civil Procedure, 1908 (CPC) - Section 89
Citation:II (2006) BC 23
Judgement Date:October 24, 2005
Court:Kolkatta Debt Recovery Tribunals
 
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Judgment:

D.C. Thakur, Presiding Officer

  1. The query pertinently arises as to whether the claim case of the Bank, which has been instituted on Tuesday, December 24,2002 against the two defendants, who have, after the examination of the records maintained in the said claim case, been found to be the father and son of each other, does more or less resemble with or possesses the worth of being placed on the similar, equal footing with an application for issuance of a certificate in a suit or proceeding to arise under Section 31-A of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. 51 of 1993), before this Tribunal.

  2. Before focussing on the said point, both on law as well as on fact, it has been highly necessary to make mention that both the defendants have, on Tuesday, February 25, 2003 when the defendants have together filed one application to extend time to them to file the written statement, appeared before this Tribunal and have filed their respective written statements on Wednesday, April 9, 2003 in answer to the claim application filed by the Bank under Sub-section (1) of Section 19 of the aforementioned Act.

  3. In addition to the above written statements both the defendants have also preferred on Tuesday, September 16, 2003 and Wednesday, February 22, 2005 separately two applications on each occasion before this adjudicating body which seem to be the retention of the earlier one. For example, one of the applications preferred by the defendant No. 2 on February 21,2005, which has been in fact meant for an order of discharging the said defendant from the yolk of liability to be fastened upon him may be compared outright with the written statement of the said defendant, which has been found markedly in not possessing the rigid matrix of the so-called written statement but has been duly verified by himself. Consequent upon the minute, comparative study made as such has been the finding that the latter one has been the reproduction of the earlier one. In both the application preferred on September 16, 2003 as well as the written statement, the said defendant has been found in contending at paragraph No. 3 the following:

    That without prejudice, it is to state that the debt due to the applicant Bank had become barred by limitation whereupon the liability of the defendant No. 2 as Guarantor got extinguished. If the debt was subsequently revived, nothing brings back the defendant No. 2, the erstwhile Guarantor, into the picture again as he never agreed to become Guarantor again and has not executed any documents afresh in this respect. Even though the debt may have been revived, the guarantee, once extinguished, is not revived.

  4. If the written statement and the applications filed by the said defendant No. 2 are understood and conceived by this Tribunal from the angle of the purpose that the above written statement and the applications of the same defendant have been meant to serve, it shall naturally appear that the said defendant has afforded to resist the claim case of the Bank, which has been for an amount of Rs. 11,44,537.39.

  5. The son of the above defendant, who has, as per the paragraph No. 4 of the application preferred jointly by those defendants on Thursday, July 10, 2004, virtually represented the latter, who has been expressly claimed in that application to be the guarantor and father of the said defendant, has also sought to resist the above claim case of the Bank, which has arisen as a result of the default committed by him to pay back the sanctioned cash credit limit to the extent of Rs. 2 lacs and the incidental interest @ 14% p.a. with quarterly rests to the latter.

  6. Like his father (hereinafter called the defendant No. 2), the defendant No. 1 has not only answered almost all the application-allegations in his written statement but has also made and filed the applications on the days and dates, mentioned herein-above with the intent of seeing the rejection of the Bank's above...

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