Decided on July 13,2004



D.C.Thakur, - (1.) WHERE the postal remarks received by this Tribunal are indicating the clear cut disinterestness of the two defendants, each of whom is the material partner to each other, to take part in the proceeding arising out of OA/18 of 2003 initiated by the applicant Bank on Friday, July 4, 2003, in which has also been reached the completion of the statutorily prescribed time-limit of one hundred eighty days from the date of receipt of one application preferred by the said Bank against those defendants for its legitimate claim as well as for the realisation of an amount of Rs. 10,01,480/-, should the provisions expressly contained in Sub-rule (2) of Rule 5 of Order VIII of the First Schedule to the Code of Civil Procedure, 1908 (Act No. V of 1908) be adopted and applied in the above claim case of the Bank by this Tribunal as an adjudicating body?
(2.) Before initiating a thorough discussion on the above issue of law, it may be pointed out that the provisions similar to the aforementioned legal provisions have not been expressly laid down or prescribed in the entire Recovery of Debts Due to Banks and Financial Institutions Act, 1993, (Act No. LI of 1993), under the provisions of which this Tribunal has been set up to deal with exclusively any case to be initiated either by a Bank or a financial institution. On and from Monday, August 4,2003, on which date this Tribunal has also received one postal remark viz "being refused", the defendants have not cared to appear before this Tribunal nor have presented any written statement being the hallmark of the participation in the present proceeding, though the defendants have been time and again given the opportunities for such participation as per the provisions contained in Sub-section (1) of Section 22 of the said Act. Meanwhile the applicant Bank has been directed to prove its case against those defendants Consequently, the applicant Bank filed as on March 12,2004 one evidence-on-affidavit, affirmed by Shri Somnath Goswami, the Field Officer of the Burrabazar Branch of the said Bank. The said evidence-on-affidavit has been accompanied by as many as sixteen original documents, each of which has been identified with the relevant letter for its identification. Thus, the entertainment of the instant proceeding has been, in a one-sided manner, caused to occur due to the non-appearance and non-participation by those defendants, the applicant Bank has tried to prove its case, the starting point of which is Thursday, July 4, 2003.
(3.) BEFORE dealing with the documentary evidence, the different aspects of this claim ease or relief case, as per the guidelines as formulated in the famous case of Central Bank of India v. Revindra, AIR 2001 SC 3095, it has been deemed to be of the paramount importance to narrate how the lex causae has taken place in favour of the said suing Bank. At the request of the defendant No. 1, who is incidentally the proprietor of M/s. Super Craft, having its Office at Banaras Road, Bagpara, P.O. Kona, District Howrah, PIN -711 323, the applicant Bank has been pleased to sanction one cash credit (Stock) with a limit of Rs. 7.5 lacs to the said defendant. The said facility was sanctioned to the said defendant under the category of SSI on September, 3, 1998. The said limit was sanctioned to the said defendant so that he might be enabled to overcome the shortfall of working capital requirement for the running of his business. In the said letter, two kinds of securities, being both primary and collateral were prescribed. As far as the primary security was concerned, it was to be executed in favour of the applicant Bank, the hypothecation of stock of raw materials and working in progress-finished goods was the binding condition imposed upon the defendant. The said limit was also sanctioned with the collateral security to be created as a condition precedent. The applicant Bank claim in its application that the said letter has been received by both the defendants. On September, 4, 1998 the defendant No. 1 executed at Burrabazar one DP Note in the name of the defendant No. 2, who is none but his wife, for the above sum wherein the defendant volunteered in paying back the said amount on demand alongwith an interest @ 14.17% per annum with quarterly rests. On the very same day, the proprietor of M/s. Super Craft (hereinafter referred to as the 'defendant No. 1') delivered the said executed DP Note to the applicant Bank. Besides the execution of the above DP Note, one letter of delivery, which shall necessarily be treated as a pledge letter was written to the Branch Manager of the said Bank on the very same day and date requesting the said Manager to lake delivery of the machines installed in the premises situate at Benaras Road, Bagpara, P.O. Kona, Dist. Howrah and to hold them as security for advances created or to be created by the said Bank. In the said letter, the defendant No. 1 made a declaration to the fact that the machines in respect of which the pledge letter was written to the said Manager were his absolute property. The pledge letter has also been accompanied by a list of machines (twelve). Thus, the symbolic delivery of twelve different machines installed in the said premises was handed over to the said sanctioning Bank. On the very same day and date another Banking document of prime importance i.e. one letter of undertaking by the said defendant not to create any further charge over the properly and assets including the uncalled capital was necessarily made the constituent part of documentation. Thus, a declaration has, the applicant Bank has received on September 4,1998, been nothing other than mortgage, lien, encumbrance of any kind. By the above constructive declaration the Bank has been assured of that anything other than which have been made and allowed over or affecting the undertaking defendant's properly, whether movable or immovable, and assets including the uncalled capital or any part thereof would not be created in favour of any person other than the Bank. Any mortgage, lien or encumbrance over the movable or immovable property of the defendants would not be created unless those defendants obtain the prior consent from the said sanctioning Bank.;

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