Decided on May 30,2005



D.C.THAKUR,J. - (1.) The claim case of the Bank instituted on and from December 7, 1999 before the learned transferring Tribunal against the six defendants has disclosed a story of its success against the defendant Nos. 1 to 5; but this Tribunal reserves its view particularly when the written statement filed by the defendant No. 6 as the successor of late Mili Dutta Biswas (the date of filing being Wednesday, February 6, 2002) shall be carefully considered by this Tribunal. The said claim case has been instituted by the Bank against the same defendants on the above noted day and date for the recovery of an amount of Rs. 10,52,169.25 p. The question of the impleadment of Mr. Tapan Dutta Biswas as the defendant No. 6, who has been found to be the author of the written statement, being on and from February 6, 2002 in the record of this Tribunal, has been a matter of serious legal controversy, especially in the context of Section 2(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. 51 of 1993), which should not be looked or understood from the angle of the mere definitional section but which should be construed as a legal provision prescribing the requirements as to who shall be the borrower or the defendant from the angle of debt? The above factual peculiarity has emerged when this Tribunal has considered the averment of the Bank at paragraph No. 5 (IX), page 5 of its original application wherein the said Bank has provided the casual explanation as to the impleadment of the said person as the defendant No. 6; and the written statement of the said defendant having been read as a whole. This aspect shall be later considered thoroughly.
(2.) The defendant No. 1 is a corporate personality having its registered office at 71-A, Russel Street, Kolkata-700 071 wherefrom it made a request in a corporate manner (the date of request being July 5,1995) for the sanctioning of the Cash Credit facilities to itself only for the purpose of carrying out business as the manufacturer of various products including Transformers, Batteries, Capacitators, etc. Of such corporate defendant, the defendant Nos. 2,3 and 4 have been claimed to be the directors. Till date no written statement has been filed on its behalf, though the learned transferring Tribunal factually received on June 30,2001 one joint written statement from the above latter defendants. The defences disclosed and set out in the above written statement were adopted on Wednesday, January 22, 2003 by the defendant No. 5 in her written statement; and were intended to be relied on by the said defendant as her defences to be taken at the time of hearing of the present case. The said corporate defendant is also appearing to be a registered Small Scale Industry if regard be had to Form-B (LF 77) (herein being described as the application for sanction). After having been satisfied through the submitted Profit and Loss Account for the year ending on March 31,1995 as well as the guarantee assurance given on July 27, 1995 by one Smt. Mili Dutta Biswas, the Bank sanctioned the Cash Credit facility to the said defendant upto the limit of Rs. 5 lacs to be secured by or against the hypothecation of stocks of raw materials and finished goods, the equitable mortgage of the immovable property at Village Harinavi, P.S. Sonarpur, District 24 Parganas (South) about which the written statement of the defendant No. 6 has been found emphatically vocal, as well as the personal guarantee of the defendant Nos. 2, 3 and 4. The above sanction was expressly communicated to the defendant No. 1 through the Bank's letter of sanction dated July 29, 1995. After being empowered by a resolution adopted in the meeting of the Board of Directors held at the registered office of the said defendant company, several documents were executed by the defendant No. 2. Those documents include the agreement of hypothecation of goods and the agreement of guarantee. Mention may be made of that the agreement of guarantee was also executed at Kolkata on September 27, 1995 by Smt. Utpala Hazra. Mr. Susanta Hazra, the defendant No. 4 also followed the example as set by the other two defendants. The late mother of the present defendant also executed one agreement of guarantee on September 27, 1995 when the said executant had been claimed by the present succeeding defendant as the septuagenarian and was also designated as an old lady lying between the age range of seventy to seventy-nine years and incapable of understanding the legal jugglery and the complicated effects of the terms and conditions as stipulated in the said agreement of guarantee; but had been simultaneously claimed to sign the documents in English language. Mention may be made further that the agreed rate of interest stipulated at that time was not more than seventeen percent per annum.
(3.) THE claim application of the applicant Bank has also disclosed the material fact that the defendant No. 1 has, in addition to the Cash Credit facility, availed itself of some ad hoc and Demand Loan facility from the said Bank. In this regard, the said Bank has taken the help from the letters written by the defendant No. 2 as the 'Director' of the said company on February 29, 1996 and October 17, 1996. In the letter written on February 29, 1996, the said defendant requested the Bank for a loan of Rs. 2 lac on the basis of the pledge of ten numbers of Mini EPABX of Model No. 616 of the defendant No. 1, the dealer price of which was then Rs. 2.70 lac and the face value of which was claimed to be Rs. 2.5 lac. THE said letter was written by the said defendant under authorisation made in his favour by the defendant No. 1 under the resolution adopted in the meeting of the Board of Directors of itself dated February 29, 1996. THE Bank has also expended a sum of Rs. 1.80 lac on March 28, 1996. THEreafter, the Bank has expended on March 28, 1996 a sum of Rs. 1.80 lac from its Shyambazar Branch for the benefit of the defendant No. 1. In the letter of October 17, 1996 a prayer for a loan of Rs. 45,000/- was further made to the Bank, after a proposal for the pledge of 2 Nos. of NEX-MINI 308, NEX-MINI 204 3 PCS and a NSC of Rs. 10,000/-, the values of which were estimated to be Rs. 20,000/- and the face value of which was claimed to be Rs. 24,000/-. After responding to the above request a sum of Rs. 45,000/- was expended by the Bank on October 18,1996 to benefit the defendant No. 1. Such disbursement of Rs. 2.25 lac has been claimed by the Bank to be added to the existing Cash Credit account to the limit of Rs. 5 lac.;

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