T.A. No. 8 of 2003. Case: United Bank of India Vs The Lespodrex and Ors.. Kolkatta Debt Recovery Tribunals
| Case Number | T.A. No. 8 of 2003 |
| Counsel | For Appellant: Udayan Sen and N.C. Kuila, Advs. and For Respondents: P.K. Chatterjee, Adv. |
| Judges | D.C. Thakur, Presiding Officer |
| Issue | Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Sections 1(3), 19, 19(1) and 19(22); Banker's Books Evidence Act, 1891; Banking Regulation Act, 1949; Guide to Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; Code of Civil Procedure, 1908 (CPC) - Order 7, Rule 17 - Order ... |
| Citation | II (2006) BC 1 |
| Judgement Date | January 13, 2006 |
| Court | Kolkatta Debt Recovery Tribunals |
Judgment:
D.C. Thakur, Presiding Officer
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The application preferred by the applicant Bank for the recovery of a huge amount of money of Rs. 2,12,98,698.66 with further interest against the four defendants should have been disposed of earlier; and the said claim application preferred by the said Bank, against the above defendant ought to have been disposed of either on Thursday, April 18,2002 or any immediate subsequent day and date in favour of the applicant Bank because one written statement jointly preferred by the defendants has been received on the aforementioned day and date by the transferring justice-delivering system. The above observation has been framed by this Tribunal in the context of the existing situation being crystallised by the written statement that has been proved to be full of admission. The written statement filed on April 18, 2002 has been actually verified by the defendant No. 2.
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Through the said written statement, the defendants have been in fact found not disputing the claim of the applicant Bank. Moreover, what have been stated and contended by the defendants in their pleading-cum-written statement have actually been lent support either through the reply made by the Bank's witness on Tuesday, July 30, 2002 as well as the specific averments contained in the evidence-on-affidavit affirmed by Mr. Chandra Sekhar Bandopadhyay as the Branch Manager of the said Bank on the same day and date.
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For example, at sub-para (b) of paragraph No. 2 of the said written statement the defendants have been, amongst others, heard in saying the following:
That the Applicant Bank has agreed to sanction the credit facility to the defendants against hypothecation of assets, guarantees of defendant Nos. 2, 3 and 4 and mortgage of immovable properties and the said credit facility enhanced from time-to-time.
The above averment of the defendants has set at rest any controversy that is likely to arise in between the Bank and the defendants over the Bank has never agreed to sanction the credit facility to the defendant No. 1, and the defendant Nos. 2, 3 and 4 have never stood as the constituent partners of the defendant No. 1 as the guarantor and mortgagor for the benefit of the latter; and the facilities have never been enhanced.
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Again, the same defendants are repeating at paragraph No. 4 of the said written statement what have been contended by themselves in the sub-para (b) of paragraph No. 2 of the said written statement. In case the reply made by Mr. Chandra Sekhar Bandopadhyay on Tuesday, July 30,2002 is considered first and given the evidentiary weightage, it shall appear succinctly that what have been claimed by the admitting defendants has not been found to be true to fact.
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For the purpose of the straight-cut comparison with the above, the reply made by the said P.W. is being quoted below:
Initially the property mortgaged with the Bank is at Rashmani Road, Kolkata. Then further mortgage effected by the defendants in favour of the applicant Bank is of the property situated at Abinash Chandra Banerjee Lane. Subsequently, the initially mortgaged property at Rashmani Road, Kolkata, has been released by the Bank. The letter dated 18.10.90, Annexure D" attached with the evidence on affidavit filed by the defendants, has been given by the Bank. This document be marked Exhibit 'A-1'.
While initiating the present discussion this Tribunal has laid emphasis on the admission by the defendants as to the debt liability of their own. By using the word "admission", this Tribunal intends to convey that such admission has been no other than a judicial admission because such admission has been contained in the written statement received on April 18,2002. In that written statement the defendants have been found in categorically admitting that in the year of 1984 the defendant No. 1 being a partnership firm has been sanctioned the facility to the tune of Rs. 1.75 lakh under certain terms and conditions and the said credit facilities have been enhanced from time-to-time; and have been at last crystallised as Rs. 46,31,499.66 The said amount has been accepted as the book due. The same has been repeatedly said by the defendants at the paragraph No. 6 of the evidence-on-affidavit affirmed by the defendant No. 2 for himself and on behalf of the rest (filed on Thursday, April 18, 2002).
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For the purpose of establishing how far the defendants have accepted their debt liability this Tribunal has taken into its serious consideration the paragraph No. 7 of the evidence-on-affidavit affirmed by Shri Chandra Sekhar Bandopadhyay as well as the paragraph No. 5 of the claim application preferred by the said Bank under Sub-section (1) of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. 51 of 1993) (herein for short called "the Act") on January 2,2001 against those defendants. Those paragraphs read exactly as follows:
Paragraph No. 7 of the evidence-on-affidavit:
On November 14,1984 the applicant sanctioned credit facilities in favour of the first defendant with an overall limit of Rs. 1.75 lakh on terms and conditions.
The said and other terms and conditions will appear inter alia, from the following documents:
(i) Sanction letter of November 14, 1984;
(ii) Promissory Note for Rs. 1.75 lakh of October 20, 1984;
(iii) Agreement of Hypothecation of Plant and Machinery of October 20, 1984;
(iv) Letter of Lien of October 20, 1984;
(v) Letter of Continuity of October 20, 1984;
(vi) Letter of Hypothecation General (Bill Purchased) of October 20, 1984;
(vii) Hypothecation of Debts and Movable Assets of October 20, 1984;
(viii) Hypothecation of Goods dated October 20, 1984;
Original documents are annexed hereto marked as Exhibits-1 to 8.1 know the signature contained in the said documents.
Paragraph No. 5 of the Section 19 application:
On November 14,1984 the applicant sanctioned credit facilities in favour of the first defendant with an overall limit of Rs. 1.75 lakhs on terms and conditions, inter alia, as follows-:.
(a) The first defendant would avail Of the credit facilities in Packing Credit-cum-Export Bill Purchase Account and in Gash Credit Account;
(b) Interest at 2% over the Bank rate minimum 12% per annum with quarterly rests would be charged in the said Account;
(c) The defendant Nos. 2, 3 and 4 would guarantee repayment of the ultimate balance in the said Accounts.
(d) The immovable property being premises No. 4/G, Rashmani Bazar Road, Beliaghata, Calcutta-700010 would be mortgaged to the applicant as security.
(e) All the first defendant's assets such as goods, book debts, bills, moneys receivable, claims, plant, machinery and other assets and rights would remain hypothecated to the applicant as security;
(f) The advances would be granted and/or continued at the discretion of the applicant;
(g) The outstanding amount in respect of the said credit facilities would be payable by the first defendant on demand being made;
(h) All sale proceeds and realisations would be deposited with the applicant;
(i) The bills that might be deposited for collection or against which the applicant might grant advances would be collected at the risk and responsibility of the first defendant and if the drawees of the bills do not make payments the first defendant would "retire the same and in default the applicant would crystallise and debit the Account of the first defendant;
(j) On any default in payment of any money or on breach of any of the terms of the agreement or on the occurrence of any circumstances endangering the securities the applicant would be entitled to call up the loan, demand payment and appoint Receiver of, sell and realise the hypothecated assets and mortgaged properties without prejudice to the applicant's other rights, remedies and securities.
The said and other terms and conditions will appear, inter alia, from the following documents-
(i) Sanction letter of November 14, 1984;
(ii) Promissory Note for Rs. 1.75 lakh of October 20, 1984;
(iii) Agreement of Hypothecation of Plant and Machinery of October 20, 1984;
(iv) Letter of Lien of October 20, 1984;
(v) Letter of Continuity of October 20, 1984;.
(vi) Letter of Hypothecation General (Bill Purchased) of October 20, 1984;
(vii) Hypothecation of Debts and Movable Assets of October 20, 1984
(viii) Hypothecation of Goods dated October 20, 1984;
Copies of the said documents are annexed hereto marked 'A' to 'A-7'.
But the defendants tend to say at paragraph No. 2(c) of their written statement and the latter portion of the evidence-on-affidavit that if the defendant No. 1 which is not only a partnership firm but is also a manufacturer of and as well as a dealer in leather products and lastly an exporter of those products is allowed to avail itself of the rest amount of Rs. 82.00 lakh being no less than a sum of Rs. 35,68,501/-, the business of the said defendant No. 1 as the...
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