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Oriental Bank of Commerce V/S Manik Malakar and Others.


Company & Directors' Information:- INDIA E-COMMERCE LIMITED [Active] CIN = L99999MH1968PLC014091

Company & Directors' Information:- S H COMMERCE PRIVATE LIMITED [Active] CIN = U51109WB2008PTC121420

Company & Directors' Information:- A. M. COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB2011PTC168744

Company & Directors' Information:- G S E-COMMERCE PRIVATE LIMITED [Active] CIN = U52100KA2013PTC067567

Company & Directors' Information:- V K COMMERCE PVT LTD [Amalgamated] CIN = U51109WB1984PTC037122

Company & Directors' Information:- P. R. COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB2008PTC122333

Company & Directors' Information:- M & P E. COMMERCE PRIVATE LIMITED [Active] CIN = U74300DL1999PTC099198

Company & Directors' Information:- R S COMMERCE PVT LTD [Converted to LLP] CIN = U51909WB1995PTC074372

Company & Directors' Information:- P S COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB1997PTC084487

Company & Directors' Information:- T S R I COMMERCE PRIVATE LIMITED [Strike Off] CIN = U65910TG1999PTC032173

Company & Directors' Information:- AND E-COMMERCE PRIVATE LIMITED [Active] CIN = U74120AP2015PTC096206

Company & Directors' Information:- D B S COMMERCE PRIVATE LIMITED [Active] CIN = U52190MH2009PTC190773

Company & Directors' Information:- A P COMMERCE LIMITED [Strike Off] CIN = U51909WB1981PLC033798

Company & Directors' Information:- B. G. E-COMMERCE PRIVATE LIMITED [Active] CIN = U52500UP2021PTC157159

Company & Directors' Information:- THE BANK OF COMMERCE LTD [Strike Off] CIN = U65923WB1929PLC006511

Company & Directors' Information:- K P INDIA COMMERCE PRIVATE LIMITED [Strike Off] CIN = U51909AS2001PTC006701

Company & Directors' Information:- Y S E-COMMERCE PRIVATE LIMITED [Active] CIN = U72200MH2000PTC126344

Company & Directors' Information:- B AND D E-COMMERCE PRIVATE LIMITED [Strike Off] CIN = U74999HP2015PTC000945

Company & Directors' Information:- I P E-COMMERCE PRIVATE LIMITED [Active] CIN = U52399CH2012PTC033585

Company & Directors' Information:- ORIENTAL COMMERCE PVT LTD [Strike Off] CIN = U15209WB1996PTC079017

Company & Directors' Information:- BANK OF COMMERCE LIMITED [Dissolved] CIN = U65110KL1901PLC000124

Company & Directors' Information:- ORIENTAL BANK OF INDIA LIMITED [Dissolved] CIN = U65191KL1920PLC000830

Company & Directors' Information:- ORIENTAL BANK LIMITED [Dissolved] CIN = U65191KL1929PLC000832

Company & Directors' Information:- BANK OF COMMERCE LTD. [Dissolved] CIN = U99999MH1921PTC000917

Company & Directors' Information:- ORIENTAL BANK OF COMMERCE LIMITED [Active] CIN = U65191DL1901PLC002036

    O.A. No. 513 of 2016

    Decided On, 03 January 2020

    At, Debts Recovery Tribunal Kolkata

    By, THE HONORABLE JUSTICE: M.S. RAO
    By, (PRESIDING OFFICER)

    For Petitioner: Swarnadip Das, Learned Counsel



Judgment Text


1. Applicant, Oriental Bank of Commerce, filed the present Application, being O.A. No. 513 of 2016, on 22nd June, 2016, under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 for recovery of Rs. 26,35,676.78 (Rupees twenty six lac thirty five thousand six hundred seventy six and paise seventy eight only) due and payable as on 31st March, 2016 and further interest at the rate of 11.95% per annum from 1st April, 2016 and cost, etc., till realization against two Defendants.

2. In brief, Applicant Bank mentioned as under:

(i) Defendant No. 1, Sri Manik Malakar, Sole Proprietor of M/s. Mainak Enterprise, is borrower and Defendant No. 2, Smt. Bela Malakar, is guarantor.

(ii) On request of Defendant No. 1, vide application dated 15th December, 2012, Applicant Bank, vide Sanction Letter dated 25th January, 2013, Sanctioned Cash Credit Facility of Rs. 20.00 lac against Hypothecation of stocks of grill, shutter, collapsible gate, steel almirah, etc., and various types of fabricants and receivable of any nature and description, stock of variety of other products, furniture, office equipment and stock of any other goods stored at the shop, godown and residence; morefully described in Schedule 'X' of the O.A. and upon creation of equitable mortgage of immovable property by depositing original title deeds, being:

(1) Deed No. I-921 for the year 1993 in respect of piece and parcel of land measuring 7.50 decimal, situate under District - Burdwan, P.S. - Asansol South Chouki and Sub Registry Office - Asansol, Mouza -Mohishila, under Asansol Municipal Corporation, Ward No. 20, Hal Khatian No. 114, R.S./L.R. Khatian No. 1897, R.S./L.R. Dag No. 978; registered in Book No. I, Volume No. 15, Pages 256 to 258; being No. 921 for the year 1993 in the name of Sri Manik Malakar, Defendant No. 1; and

(2) Deed No. I-922 for the year 1993 in respect of piece and parcel of land measuring 7.50 decimal, situate under District - Burdwan, P.S. - Asansol South Chouki and Sub Registry Office - Asansol, Mouza -Mohishila, under Asansol Municipal Corporation, Ward No. 20, Hal Khatian No. 114, R.S./L.R. Khatian No. 1898, R.S./L.R. Dag No. 978; registered in Book No. I, Volume No. 15, Pages 259 to 261; being No. 922 for the year 1993 in the name of Smt. Bela Malakar, Defendant No. 2; more fully described in Schedule 'Y' of O.A.

(iii) In order to avail the aforesaid Loan, Defendant No. 1, on 30th May, 2006, executed Agreement of Hypothecation of Assets and on 25th January, 2013 Common Agreement, Sole Proprietorship Letter confirming creation of equitable mortgage by depositing original Sale Deed No. 921 for the year 1993 by Defendant No. 1 and Letter confirming creation of equitable mortgage by depositing original Sale Deed No. 922 for the year 1993 by Defendant No. 2. Defendant No. 2 executed Guarantee Agreement. On 15th February, 2016 Defendants executed Balance and Security Confirmation Letter.

3. Defendants enjoyed the facility but failed and neglected to pay the outstanding debts to the Applicant Bank on the basis of the terms and conditions stipulated in the Sanction Letter dated 25th January, 2013, as a result, the account, being Account No. 03054015001637 has been classified as "Non Performing Assets" (NPA) on 31st March, 2015. Applicant Bank sent Demand Notice dated 27th April, 2016 to Defendants but Defendants did not pay the dues. Dues against Defendants, as on 31st March, 2016, is Rs. 26,35,676.78 (Rupees twenty six lac thirty five thousand six hundred seventy six and paise seventy eight only). O.A. has been filed for recovery of the same. Future interest at the rate of 11.95% per annum, with monthly rests, has been claimed from 1st April, 2016. Certified Statement of Account has been filed. Applicant Bank has mentioned that their claim is within limitation.

4. Service upon Defendants is complete. Completion of service has been recorded in the Learned Registrar-in-Charge's order dated 18th November, 2016. Ms. Mun Mun Jha, Learned Counsel appeared for both the Defendants by filing Memo of Appearance and undertook to file Vakalatnama. Thereafter she neither appeared nor filed written statement. Hence, Defendants were ordered to be proceeded ex parte vide Tribunal's order dated 10th June, 2019.

5. Applicant Bank has filed Evidence-on-affidavit, affirmed by Mr. Dhananjay Mundari, Manager (Law) of Applicant Bank's Durgapur Branch. The Authorised Officer, Shri Satyam Bharti, Senior Manager (Law), authorized vide letter dated 17th January, 2018, produced the documents alongwith the copy of original documents executed by the parties. Original documents have been produced by the Applicant Bank; the same have been verified with copies of the documents annexed with the O.A. and the originals have been returned to the Authorised Officer, Shri Satyam Bharti, Senior Manager (Law), of Applicant Bank's RRL Cluster, Kolkata Branch, as has been recorded in the Learned Assistant Registrar's Order dated 18th January, 2018. The documents produced by the Applicant Bank are exhibited and marked as Exhibits A-1 to A-14.

English translated copy of Bengali Title Deed No. I-922 and Banker's Certificate have been filed by way of supplementary affidavit, as recorded in order dated 10th July, 2019.

I have heard the Learned Counsel for the Applicant Bank and perused the records.

6. Evidence-on-affidavit, filed by the Applicant Bank, is supported by copies of the documents (original documents verified by the Registry and returned to the Authorised Officer, Shri Satyam Bharti, Senior Manager (Law), of Applicant Bank's RRL Cluster, Kolkata Branch, on 18th January, 2018). Applicant Bank has corroborated the averments made in the O.A. Applicant Bank has proved sanction of Cash Credit Facility of Rs. 20.00 lac.

Applicant Bank has proved hypothecation of goods and assets. Applicant Bank has also proved creation of equitable mortgage in respect of immoveable property detailed above.

7. Evidence-on-affidavit, filed by Applicant Bank, has remained unchallenged, un-rebutted and its veracity cannot be put to dispute. Applicant Bank has proved the averments made in the O.A.

8. The Applicant Bank has filed Statement of Account certified under Banker's Books Evidence Act. Rs. 26,35,676.78 (Rupees twenty six lac thirty five thousand six hundred seventy six and paise seventy eight only) due and payable as on 31st March, 2016. Applicant Bank has claimed further interest at the rate of 11.95% per annum from 1st April, 2016 till realisation. Accordingly, interest at the rate of 11.95% per annum, simple, is allowed.

9. On the point of limitation, the O.A. has been filed on 22nd June, 2016. Defendants executed Balance and Security Confirmation Letter on 15th February, 2016, thus the O.A. has been filed within the limitation period.

10. The matter also falls within the territorial as well as pecuniary jurisdiction of this Tribunal. The Applicant Bank has proved its claim made in the O.A. The O.A. deserves to be allowed; hence allowed.

O R D E R

(1) O.A. No. 513 of 2016, filed by the Applicant Bank, is allowed and debt is determined with cost against Defendants No. 1 and 2. It is hereby ordered that Applicant Bank is entitled to recover from the Defendants, jointly and severally, the total debt amount the tune of Rs. 26,35,676.78 (Rupees twenty six lac thirty five thousand six hundred seventy six and paise seventy eight only) inclusive of interest calculated upto 31st March, 2016 and interest for the period pendent lite and future at the rate of 11.95% per annum, simple, from 1st April, 2016 till realization of the entire sum due and recoverable.

(2) Amount, if any, paid by the Defendants in the loan account or amount, if any, recovered by the Applicant Bank after filing of the O.A., the same be taken into account while arriving at the exact amount of dues/debt payable by the Defendants. Accordingly, pendente lite and future interest shall be calculated on the reduced amount.

(3) Defendants are debarred from transferring, alienating, encumbering or disposing of the hypothecated/mortgaged property, being:

(1) All that piece and parcel of land measuring 7.50 decimal, situate under District - Burdwan, P.S. - Asansol South Chouki and Sub Registry Office - Asansol, Mouza -Mohishila, under Asansol Municipal Corporation, Ward No. 20, Hal Khatian No. 114, R.S./L.R. Khatian No. 1897, R.S./L.R. Dag No. 978; registered in Book No. I, Volume No. 15, Pages 256 to 258; being No. 921 for the year 1993 in the name of Sri Manik Malakar, Defendant No. 1; and

(2) All that piece and parcel of land measuring 7.50 decimal, situate under District - Burdwan, P.S. - Asansol South Chouki and Sub Registry Office - Asansol, Mouza -Mohishila, under Asansol Municipal Corporation, Ward No. 20, Hal Khatian No. 114, R.S./L.R. Khatian No. 1898, R.S./L.R. Dag No. 978; registered in Book No. I, Volume No. 15, Pages 259 to 261; being No. 922 for the year 1993 in the name of Smt. Bela Malakar, Defendant No. 2; more fully described in Schedule 'Y' of O.A.

And hypothecated stocks of grill, shutter, collapsible gate, steel almirah, etc., and various types of fabricants and receivable of any nature and description, stock of variety of other products, furniture, office equipment and stock of any other goods stored at the shop, godown and residence; morefully described in Schedule 'X' of the O.A.

Defendants are also debarred from transferring, alienating, encumbering or disposing any other property and assets belonging to him till the aforesaid adjudicated debt amount is recovered from the Defendants.

(4) Defendants are given a time of thirty days from the date of this judgment/final order for repayment of the above mentioned dues, so intimated to them. In case the Defendants fail to pay the dues within the abovementioned time, the Applicant Bank is entitled to recover its dues by sale of secured assets, as aforesaid. Applicant Bank is also entitled

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to proceed against personal properties of the Defendants both moveable and immoveable and also proceed against the Defendants personally to recover the dues in accordance with law. (5) Let the Certificate of Recovery be drawn up by Learned Registrar forthwith in terms of judgment for issuance of the same against Defendants in favour of Applicant Bank under Section 19 (22) of The Recovery of Debts and Bankruptcy Act, 1993 and put up the same for signature for issuance. (6) Learned Recovery Officer shall realize the amount as per the Recovery Certificate from Defendants in accordance with law. (7) Learned Registrar of this Tribunal is directed to place Recovery Certificate in terms of this final order/judgment under section 19 (22) of the Act of 1993. Accordingly, the Original Application, being O.A. 513 of 2016, is allowed and stands disposed of. Copy of the Judgment/Final Order be uploaded in the Tribunal's Website. File be consigned to Record room. Order pronounced by me in the open Tribunal on this the 3rd day of January, 2020.
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