(1.) THE applicant Bank's claim application that has been filed on March 27, 2001 has been found strongly resisted by all the four defendants brought on record in their joint written statement as well as the objection filed by those defendants to the evidence-on-affidavit filed by the applicant Bank on Tuesday, February 18, 2003 on the grounds such as that--
(i) those defendants have not at all availed themselves of the credit facilities under the term loan and the cash credit (hypothecation of plant and machinery including factory shed, and also hypothecation of raw materials, stock in process, finished goods) and book debts as claimed by the applicant Bank in its application (para 5.3, page 6) preferred on March 27, 2001.
(ii) those defendants have categorically challenged the registration of charges claimed to be made by the defendant No. 1 respectively on April 25, 1995, October 24, 1996, July 7, 1999 with the Registrar of Companies, West Bengal in favour of the same applicant Bank; and those defendants have steadily refused to accept that those charges are legally valid and binding on themselves;
(iii) the specific denial by the defendants of the acceptance of the alleged terms of conditions as contained in the letter of sanction bearing reference No. RMC/ 38L/221 dated February 3, 1995 and the claim of disowning the signatures claimed to be found present in most of the Banking documents;
(iv) those documents have also been claimed by the defendants as forged with the illegal intent of filing the present proceeding against themselves; and
(v) the denial of acknowledgement of the balance dues by the defendants.
(2.) The above view has been materially framed by the this Tribunal after the written statement and the objection to the evidence-on-affidavit jointly filed by the defendants have been minutely read and analysed by itself. Subsequent to that, those defendants have all on a sudden filed on Wednesday, April 9, 2003 one application before this Tribunal. The said application has been, like the previous occasions, jointly filed by those defendants. With it one public notice issued by the said Bank in The Telegraph' on Thursday, March 13, 2003 and one application made to the Senior Regional Manager on the said Bank dated Wednesday, March 26, 2003 by the defendant No. 1 have been enclosed. From the paragraph No. 3 of the said application, it appears categorically that those defendants have, in response to the said paper publication addressed to the eligible defaulting borrowers of the said Bank, afforded to avail themselves of the opportunity of settling their outstanding dues to the said Bank in terms of the Reserve Bank of India's guidelines for compromise of NPAs upto Rs. 10 crores, applied on the aforementioned date to the said Bank for settling its actual claim in instalments. In the said paragraph the application made on behalf of the defendant No. 1 has been claimed to be received by the regional office of the said Bank on the same day and date. The reason why this Tribunal is referring to the above application is that the application made by the said defendants stands in reality as the negation of all the denials specifically taken out in the written statement presented jointly before this Tribunal on Tuesday, May 6, 2003 in connection with the pending claim case of the applicant Bank. The written statement has been actually meant for meeting all sorts of allegation usually raised by the suitor Bank in its application. But the existing facts are no doubt suggesting the combined reading of the above application with the written statement--both being on record of this Tribunal. In such perspective, a question of crucial importance necessarily arises as to whether the claim amount of the Bank being Rs. 37,96,959.15 p. has been accepted by the defendants as the debt liability of themselves. For a moment, the evidentiary value of the application which has formed a part of the record in the present proceeding is not being considered by this Tribunal. 3. It has been of so importance to note one eventuality that has taken place on the same date when the above written statement has been presented. The said event has been tended to be described in the following manner:
One letter dated Monday, May 5, 2003 to the learned Advocate of the defendants has also been submitted on the very same date before this Tribunal. The above letter has been in fact written by the defendant No. 2 as one of the directors of the defendant No. 1, a body corporate. The following lines of the said letter have been quoted below--
"... As the case hearing date is on 6th May 2003, we are enclosing herewith a cheque No. 449238 dated 26.5.2003 on ...for Rs. 2,50,000/- (Rupees two lacs fifty thousand only) with reference to our letter dated 26.3.2003 in response to the advertisement by PNB in the newspaper dated 13.3.2003 and as advised by the learned Tribunal to show the bona fide of the proposal dated 26.3.2003. The above cheque is enclosed herewith if the claim is settled for Rs. 10.00 lacs as offered in our proposal letter dated 26.3.2003 than only you please hand over the cheque as asked by the learned Tribunal."
4. In this perspective, it may be asked; whether would that letter of the above defendants be not received by this Tribunal as one that shakes the entire basis of their written statement? Not only that, one account payee post-dated cheque bearing No. 449238 dated May 26, 2003 and also for a sum of Rs. 2.50 lakhs has been accepted that day (Order No. 21) by this Tribunal as a payment in support of the bona fide attitude towards the Bank in relation to the proposed settlement for a sum of Rs. 10.00 lakhs that has been actually exhibited through the above discussed application. That day this Tribunal observed inter alia the following--
"...Such amount of Rs. 2.5 lacs though paid against Rs. 30,96,959.15p., is actually a recovery of the Bank's dues....";
and also opined against the Bank's role in relation thereto.
5. On Friday, June 27, 2003 the said defendants have also brought the material information to the notice of this Tribunal that the defendant No. 2 as one of the directors of the defendant No. 1 has been called upon by one Mr. S.N. Dan of the applicant Bank for a meeting at the Regional Manager's office of the said Bank on May 28, 2003. The said application has in fact contained in itself the causes as to why the above cheque submitted before this Tribunal has been on the date of its presentation dishonoured and the above fact has been partially supported by the letter (bearing reference No. ARMC/SHM/129(I)/7903 dated June 12, 2003) written by the Senior Manager. The said application concludes itself with a prayer for the extension of time to the said defendants to file the evidence-on-affidavit, the objection to the Bank's affidavit. The above application has no doubt given rise to a strange situation likely to be described in the following words:-
On the one hand, the defendants have been found in admitting and accepting the liability towards the Bank; and on the other hand, the same defendants are praying for the extension of time to file the evidence-on-affidavit as well as the objection to the said affidavit. Such strange, self-contradictory attitude of the defendants has also come to day-light on Wednesday, September 24, 2003 when this Tribunal has received further one application for the extension of time to those defendants to mobilise the necessary fund equalling the returned cheque of Rs. 2.50 lakhs; and to cure the defect that has taken place.
6. For the ends of justice, this Tribunal had been that day pleased to extend such time as prayed for to the same defendants.
7. On Friday, August 1, 2003 the defendants made another application for the further extension of time to the above cause. The said application was allowed by itself (Order No. 23, made on August 1, 2003). Subsequently, those defendants have filed the objection to the evidence-on-affidavit of the applicant Bank as well as the evidence-on-affidavit. If the objection to the evidence-on-affidavit as well as the evidence-on-affidavit of those defendants are considered, besides controverting (in writing), the defendants have through their evidence-on-affidavit admitted that on February 6, 1995 the said Bank has sanctioned to the defendant No. 1, which has been claimed not only as the small scale industry but has also been promoted by the defendant No. 2 at Kalyani, Nadia, State of West Bengal, the term loan and the working capital against the collateral security. Accordingly, what has been stated in paragraph No. 4 of the said affidavit has been reproduced hereinbelow:
"On 6th February, 1995 the Bank has sanctioned the term loan and working capital against collateral security."
8. The fact that the defendant No. 1 has been the beneficiary of both cash credit (hypothecation of stocks) as well as working capital loan shall be well proved, if regard be had to the following wording of paragraph No. 5 of the said affidavit of the defendants:
"The defendant No. 1 (in short 'the Company') had achieved the target sale successfully and the same will be evidenced by a report of the applicant Bank dated 20the May, 1996 which is filed herewith and is marked as Exhibit 'D-1',"
9. In that paragraph one letter written by the applicant Bank to Rajasthan State Industrial Development Corporation Ltd., Udyog Bhavan, Jaipur-302005 (which is by its nature a privileged and confidential document) has been tended to be used by those defendants for their own purpose. The fact that how the defendant No. 1 has been been benefited much by the applicant Bank may be revealed further from contents of the paragraph Nos. 6 to 15 of the said affidavit also supported by the relevant annexures 'self-marked' with Exhibit Nos. D-2 to D-11. At paragraph No. 16 of the said affidavit, the above defendants have jointly brought an allegation of the wrongful and illegal encashment of the two FDRs dated March 19, 1999 for Rs. 1,77,272/- and Rs. 1,77,508/- with the help of 'Annexure D-12' which is in fact a letter written by the Bank on March 20, 1999 after bearing reference No. RMC:38L:3. The defendants have tried further to establish that the Bank has not wilfully and illegally given any the account of different FDRs and RDs lying with itself. To these, this Tribunal is adding the claim raised by the defendants as to the payment of the substantial amount (made from time-to-time to the applicant Bank). At paragraph Nos. 8, 6, 12 and 13 of the affidavit-in-opposition to the evidence-on-affidavit, the defendants have been found in denying and disputing strongly that a sum of Rs. 37,96,915.15 p. along with 18.75% or at any other rate from March 22, 2001 till realisation has been the real amount, due and recoverable, from themselves. What has been partially stated in the latter portion of the paragraph No. 8 of the said affidavit-in-opposition has been more precisely written and repeated in paragraph No. 19 of the evidence-on-affidavit filed by these defendants. Since paragraph No. 19 has contained in itself the cause or causes as to the downfall of the business of the defendant No. 1 in its corporate capacity, the entire text of the said paragraph has been set forth below:
"In the year September, 2000 the factory of the company has been completely washed off and got under flood water under waist deep water resulting heavy damages forcing the company to brink of abrupt closure. The raw materials, finished goods have been swept away. The plant and machinery of the company have been totally damaged. The overall loss at that point of time was to the tune of Rs. 30 lacs. Immediately the situation of flood was reported to the branch and the regional office of the Bank. The Bank has not taken any steps to assess the loss. The condition of the company became worst. The company has lodged claim with the Insurance Company which has been rejected by the Insurance Company in absence of Bank's certificate for stock and raw material. The President, Kalyani (I) Estate Entrepreneurs Association, Kalyani has informed the situation of flood to the District Magistrate by letter dated 24th September, 2000, which is filed herewith and marked as Exhibit 'D-15'."
10. That day this Tribunal has, after being influenced and supported, by the guidelines as precisely envisaged at paragraph No. 55, pages 3118 to 3119 of the famous case of Central Bank of India v. Ravindra, I (2002) BC 150 (SC)=VII (2001) SLT 400=IV (2001) CLT 127=AIR 2001 SC 3095 (per Lahoti J.) and the public notice issued by the Bank on March 13, 2003 in the 'Telegraph', seriously afforded to ascertain the actual amount to be paid by the defendants. For such purpose, March, 31, 2000 was selected, after ascertaining the views of both sides, as the day and date for the classification of the account of the defendant No. 1 as the account that has failed to generate any income to the suing Bank. On that day an amount of Rs. 35,48,827.15 p. has been found, after the close scrutiny of the Statement of Accounts so filed, the amount, at the relevant point of classification of the account of the defendant No. 1 as the 'NPA'. From that amount the various payments like Rs. 2,96,786/- under the FD, Rs. 98,019/- under the general insurance, totalling more than Rs. 3,94,805/- have been arrived at by this Tribunal as the deductible adjustments by the Bank which may be treated for the payment-purpose as the deemed payments by the defendants. After the necessary deduction of Rs. 21,415.00 p. from the said amount, this Tribunal has further debited the earlier deposited cheque (but this Tribunal had been that day unaware as to whether that cheque has not been an honoured cheque) and has at last arrived at a sum of Rs. 28,82,607.15 p. The defendants have also expressed their keen willingness to be governed by the above finding and to pay back immediately the Bank the said amount. That day this Tribunal had, after taking into its specific consideration both sides' submission and willingness, been of the view that the ascertained sum of Rs. 28,82,607.15 p. was the actual debt amount to be made payable immediately, either jointly or severally, by all the defendants. For such purpose, this Tribunal directed the defendant No. 2 to appear in person for his personal examination to be conducted under Rule 2 of Order 10 of the First Schedule to the Code of Civil Procedure, 1908 (Act No. V of 1908) intended that day to be used as a means for settling the present contention issue in between the applicant Bank and the defendants. That day the applicant Bank was consequently directed to encash the cheque dated May 6, 2003 not before Thursday, September 18, 2003. Such directions have been issued on the basis of the specific prayer made on behalf of the defendants.
11. It should also be necessarily mentioned that on behalf of the applicant Bank, an intention to be regulated by the reconciliation proceeding if adopted under Section 89 of the Code of Civil Procedure, 1908 (Act No. V of 1908) which has been in fact inserted into the body of the said Code by the Code of Civil Procedure (Amendment) Act, 1999 (Act No. XLVI of 1999) as a result of the specific recommendation contained in Chapter VIII, page 112 and Chapter IX at pages 168, 170 and 171 of the report of Justice Malimath Committee, has been in clear words expressed that day before this Tribunal. With the sole cherished object of furthering the progress of such commercial litigation as well as ensuring the speedy recovery of the claim amount, this Tribunal responded to the above willingness of the Bank; and had been, therefore, pleased to direct the defendant No. 2 to appear before this Tribunal for his own personal examination on the next date.
12. On Wednesday, October 29, 2003, Mr. P.K. Sonthalia, the promoter-director of the defendant No. 1 which had been on the basis of its application dated January 19, 1995 first sanctioned the term loan as well as the cash credit (hypothecation) facilities, made his appearance before this Tribunal and strongly contended before itself that the applicant Bank recovered much more amount than the amount of Rs. 4,16,220/- which had been ascertained and arrived at by this Tribunal on Monday, September 1, 2003. The said defendant undertook that day to submit before itself an affidavit containing all the payments (both pre-filing and post-filing) made by the defendants. Accordingly, a direction was issued upon the defendants to establish with the sufficient materials that the different fixed deposits, viz., FDR, RD, the assigned LIC policies had been appropriated by the Bank before the commencement of the present legal proceeding. Consequently, an affidavit affirmed by Mr. Pradip Kumar Sonthalia as the defendant No. 2 for himself as well as for the other defendants like the defendant Nos. 1, 3 and 4 was filed after the service of it before this Tribunal in strict compliance with its above direction. At paragraph No. 3 of the said affidavit, the defendants have been found to accept this Tribunal's material finding that the applicant Bank has been able to recovery by way of the appropriation of one FDR worth of Rs. 2,96,786/-, an amount of Rs, 98,091/- from the General Insurance Company as against the assignment, an amount of Rs. 21,415/- in respect of the credit balance account bearing No. CC 218, thus, totalling a sum of Rs. 4,16,220/- from themselves, but at paragraph No. 5 of the said affidavit, the defendants have been further found in claiming that the applicant Bank has recovered from themselves an amount much more than Rs. 4,16,220/-. They have further claimed in that paragraph that the said Bank has already recovered a total sum of Rs. 9,49,434/- from themselves. The particulars of such recovery as claimed by those defendants have been stated in the following form:
13. In this regard the defendants have been found in expressly relying on the Bank's letter bearing reference No. RMC : 38L : 3 dated March 19, 1999. The said letter has been actually written by SRMO:CAL:C&R Deptt. of the applicant Bank to the then Senior Manager of itself. At paragraph No. 6 of the said affidavit, the defendants have made a claim that they are lawfully entitled to deduct a sum of Rs. 9,49,434/- with interest at the rate of 18% and not Rs. 4,16,220/- as wrongfully submitted by the Bank and thereafter as wrongfully recorded in the order dated September 1, 2003. The above claim has been actually found related to the pre-filing recovery of the Bank. That day this Tribunal had been pleased to direct the applicant Bank to make and file an affidavit-in-opposition to the said affidavit of the defendant No. 2. On Monday, November 24, 2003 this Tribunal has been able to receive the required affidavit-in-objection from the said Bank; and the copy of such objection has been served upon the learned Advocate appearing for the said defendant. Incidentally, it may be noted here that Mr. P.K. Sonthalia, the defendant No. 2 has also appeared that day. The objection of the applicant Bank had been only verified by Mr. Somnath Chatterjee, in the capacity of an officer of itself. While controverting what have been stated and contained in paragraphs Nos. 3, 4 and 5 of the affidavit of the defendants dated Friday, November 14, 2003, the applicant Bank has been found seriously contending following:
At the latter portion of the paragraph No. 2 of its objection, the applicant Bank has made a claim that it has further credited a sum of Rs. 1,19,434/- to the protested account of the defendant No. 1 after filing of the original application. The same has been reiterated at paragraph No. 5 of the said objection. The paragraph No. 5 of the above affidavit has been, for the purpose hereof, reproduced below:
"The submission made by the defendants in paragraph Nos. 6, 7 and 8 of the said affidavit are not maintainable, as the appropriation of the amount of Rs. 7,06,970/-in the loan accounts were made before the filing of the instant case and Rs. 1,19,434/-has been made after filing of the original application."
14. With the said objection the true copy of the statement of accounts has been enclosed. On a careful, comparative examination of the original statement of accounts submitted before this Tribunal as well as the statement of accounts accompanying the said objection of the Bank, this Tribunal has been able to find out that it has been able to recover before March 27, 2001 a sum of Rs. 7,06,970/- from the defendants as a result of the appropriation made on several days and dates; but not a sum of Rs. 9,49,434/-, though the defendants have relied much on the Bank's letter bearing the reference No. RMC:38L:3 dated March 19, 1999. The above statement of accounts which has been scrutinised by this Tribunal has been duly certified under Section 4 of the Banker's Books Evidence Act, 1891(Act No. XVIII of 1891); a special Act to which the Indian Evidence Act, 1872 (Act No. 1 of 1872) is no doubt the general Act. Under Section 4 of the Banker's Books Evidence Act, a certified copy of an entry in a Banker's book is always admissible in all legal proceedings as the prima facie evidence of existence of such entries and shall be lawfully admissible as the supportive evidence of transactions, accounts and matter mentioned therein. Section 4 of the Banker's Books Evidence Act gives no doubt a special privilege to the Banks and allows the certified copies of their accounts to be produced by them; and thus, the certified copies so submitted, shall become prima facie evidence of the existence of the original entries in the accounts and are consequently admitted as evidence of matters, transactions, accounts therein.
15. Furthermore, the original entries admitted under Section 34 of the Indian Evidence Act, 1872 would not be sufficient enough to charge any person with any liability; and a such the copies produced under Section 4 of the Banker's Books Evidence Act obviously cannot charge any person with any kind of liability and it is instead a presumption of fact that to corroborate the various entries that have been admitted, the suing Bank always performs its duty and discharges its onus of proving that the original entries are genuine and are the offshoots of the corroborative evidence already brought on record. What has been stated above has been laid down in the latter half of sixties by the Apex Court in the case of Chandradhar Goswami and Ors. v. Gauhati Bank Limited, AIR 1967 SC 1058. For the purpose of benefiting the Bank or the financial institution or the similar classes of litigants, the same Court did, after reversing the finding of the concerned High Court, set in motion further the finding of the trial Court decreeing the suit on the ground of the above sufficient evidence. As held recently, where the entries in the account books have been corroborated by the concerned Bank Manager and other Bank officers from dock, such type of proving the Bank's claim case may be rightly accepted as the due compliance with the provisions of Section 34 of the Evidence Act and it cannot be disputed that the entries have not been proved in terms of Section 34 of the said Act. The factum substantially involved in the recent finding of the Apex Court has also been described below:
The State Bank of India has filed suit for the recovery of its amount under the loan sanctioned and forwarded to the respondent. The SBI produced the books of accounts before the trial Court and obtained the necessary from the trying Court on the basis of the said statement of accounts. The High Court reversed the findings of the trial Court on the ground that there was no sufficient evidence on the on the record to corroborate the same books of account which were produced by the aggrieved appellant before the trial Court; and after relying much on Section 34 of the Indian Evidence Act, 1872 the High Court framed the view that the entries in the books of accounts alone were not sufficient evidence to thrust a respondent with the liability. The apex Court of the country came to a conclusion after considering all sets of facts involved that the High Court had erred much in reaching the conclusion that there was no evidence to corroborate the books of account. As a matter of fact, the entries have been duly proved by the General Manager of the Manipur State Bank as well as the other Bank officials. Thus, apart from the entries of the books of accounts there was ample evidence on the record to corroborate the entries in the account books. P.Ws. 5, 7 and 8 have in their detailed deposition corroborated the said entries in the books of accounts, State Bank of India v. Yamnam Gouramani Singh, AIR 1994 SC 1644 : 1993(3) SCC 631 : 1993(4) JT 237.
16. On Friday, November 14, 2003 the Branch Manager of the said Bank has been, after bearing in mind the above ratio, directed to appear along with the register folio and the statement of credits after containing all credits given to the account maintained by the defendant with itself (against the payment or payments made thereunder). The above direction issued in connection with the present proceeding has been found complied much with by the applicant Bank. On Monday, November 24, 2003, the defendants were granted liberty to file the affidavit-in-reply to the said objection of the Bank, though Mr. P.K. Sonthalia, the defendant No. 2, did, it is being repeatedly held, appear in person. The defendants were directed that day to deposit a sum of Rs. 2.50 lakhs with the said Bank before the next date of hearing. Truly admitted, for letter dated March 19, 1999 of the said Bank contains no where in itself or whispers about the appropriation of the FDRs of Rs. 5.14 lakhs standing in the names of different persons including the defendant No. 2. The allegation of the illegal appropriation which has been made by the defendants against the applicant Bank to the time to the amount of Rs. 9,49,434/- has been found, after the due careful examination of the said letter, untrue to fact. But the applicant Bank has admitted that it has recovered a sum of Rs. 7,06,970/- before March 31, 2000. because March 31, 2000 has been selected by this Tribunal for the purpose of the above reconciliation proceeding as the most important day and date.
17. The above material finding has been accepted by all the contending parties before this Tribunal. On that date an amount of Rs. 3,43,320/- has been appropriated by the applicant Bank and later, has been credited against the CC No. 218. Accordingly, the said amount is likely to be deducted from the amount as above and thereafter the amount the Rs. 32,05,507.15 p. has been materially arrived at by this Tribunal in the present case and lastly, a sum of Rs. 1,19,434/- has, as per the Bank's version, been further deducted from the last amount. As a result the balance amount which comes to Rs. 30,86,073.15 p. has been found the amount to be made payable by all the defendants including the defendant No. 1, the manufacturer of acid, which has been sanctioned the above credit facilities for the purpose of slurry and detergent powder and cake to be manufactured by itself and the other three defendants standing as the guarantors and continuing guarantors in relation to the above facilities that have been admittedly enjoyed by the defendant No. 1. On Friday, December 12, 2003 the defendants made one application before this Tribunal for grating them the sufficient time so that they might be able to satisfy the determined dues of themselves; that application was instantly allowed after giving them such time.
18. Thereafter, neither the defendants nor their learned Advocate has appeared in spite of the several opportunities given to themselves; nor the above amount determined in a summarised manner has been reported to be paid to the Bank. Lastly, this Tribunal points out that the virtues of the reconciliation proceeding which has been initiated in the present proceeding have been markedly failed to be utilised by the defendants who have been also found in committing the offence under Section 138 of the Negotiable Instruments Act, 1881 (Act No. XXVI of 1881).
19. On the basis of careful, close scrutiny of the written statement, objection, evidence-on-affidavit and the four other application of the defendants, it has been able to specifically find out that the claim case of the applicant Bank initiated on and from March 27, 2001 has not been afforded to be disputed seriously by all the defendants. Added to that, all the defendants, most of whom belong to the family of Sonthalia have also, on the basis of the materials on record, been found in residing together at 110, Southern Avenue, Kolkata-700029. Accordingly, there has been found nothing which shall suffice it to reject the application of the applicant Bank preferred against the above defendants and to disbelieve the claim of the Bank against the above defendants.
Hence, it is being ordered that the application preferred by the applicant Bank on March 27, 2001 against the four defendants is being allowed against all the four defendants; and
hence it is being further ordered that the defendants Nos. 1 to 4 shall pay either jointly or severally an amount of Rs. 30,86,073.15 p. alongwith 10% (ten percent) interest from the date of filing till realisation to the applicant Bank within a period of sixty days from the date of receipt of such order passed under Sub-section (20) of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. LI of 1997), failing which this Tribunal shall issue a Certificate of Recovery against those defendants under Subsection (22) of Section 19 of the said Act, the draft copy of which shall be placed before me by the learned Registrar of this Tribunal after the expiry of the said period for the necessary correction and issuance; and
hence it is being ordered that all the properties as enumerated in Annexure 'M' (page 306) and Annexure 'N' (page 307) to the application of the applicant Bank dated March 27, 2001 and all types of personal properties of the defendants shall remain attached till the fullest realisation.;