Decided on March 31,2006



D.C.Thakur, - (1.) PRIOR to initiating the discussion, this Tribunal intends to say specifically that the entire situation emergent before itself has been absolutely an ex parte one. Before elucidating what the Tribunal should do in an ex parte situation, it intends to refer to the claim application of the Bank which has been in fact meant for the recovery certificate to be issued for an amount of Rs. 24,60,095.87 against the defendant together with interest i.e. 14% p.a.
(2.) For the recovery of the said amount from the said defendant, the applicant Bank has started its legal action on and from Friday, May 14,2004. Be it noted here necessarily the said Bank has also afforded to recover the said amount from the above named defendant by way of statutorily issuing one notice upon the said defendant as the 'borrower' under the provisions of Sub-section (2) of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [Act No. LIV of 2002]; about which the applicant Bank has made mention at paragraph No. X, page 8 of its above claim application. The sole defendant is the proprietor of M/s. Ganapati Agency; under the name and style of the said proprietorship concern, the said defendant used to carry on the wholesale distributorship business of the different types consumer products. For the very reason of carrying out the distributorship business in the field of the consumer products, the said defendant did approach on April 26, 2001 to the Bank for the sanctioning of the cash credit facility to the limit of Rs. 20 lacs to himself. The said a approach was also effectively responded to by the Bank through its sanction letter bearing No. WBR-1/CAD/PROP/86/2001 dated May 11/14, 2005 issued by the Kolkata Regional Office, Kolkata-700 001; and it was evidently proved to be received by the said defendant as the proprietor of M/s. Ganapati Agency otherwise the seal of the said agency would not have been present in the above letter of sanction. The said letter was received by the said defendant at the address mentioned in D1 /1, Amarabati More, Sodepur, 24 Parganas (N), Pin: 743 178. In the said letter, the applicant Bank has inter alia imposed the two conditions namely the hypothecation of stocks as well as the rate of interest @ 15% p.a. plus interest tax, if any, or at such other rate as may be prescribed by HO/RBI from time-to-time. The letter containing the preliminary condition usually necessary for the contract was reached prior to May 17,2001 when the said defendant executed at the aforementioned address one Demand Promissory Note in the Bank's available form A/1. The signature of the said defendant, while accepting the above letter of sanction, resembles even through the naked eye with the signature of the executor, who is none but the defendant himself. On the said date, the said defendant has also executed the four documents. As mentioned earlier, all the formalities necessary for the functioning of the above commercial contract in the form of the enjoyment of the cash credit facility by the said defendant had been evidently completed on May 17, 2001. Thereafter, the defendant was permitted to enjoy the above facility. It should necessarily be mentioned that as a result of the construction of the documents from the angle of purpose to be fulfilled and performed by the letter of guarantee, the character of a continuing personal guarantee shall also be necessarily and unavoidably attributed to the said defendant. If the letter of guarantee is read as a whole and is read when the dc Vndant is not illiterate and is able much to understand the impact of the terms and conditions to be stipulated in the said letter of guarantee upon himself, especially after the execution of the same, the said defendant shall necessarily be designated as the holder of the two-fold character namely the borrower and the guarantor. In other words, the character of the borrower-guarantor may be found in the same person named Mr. Shambhu Nath Dutta, the absentee defendant. On May 17,2001 the said defendant invited all the provisions relating to the contractual law of guarantee to be applied specifically to himself.
(3.) WITH the object of fortifying further the Bank's lending amount and with the intent of being the mortgagor, especially the equitable mortgagor, the said defendant deposited on May 21,2001 the title deed to cover in particular the immovable land ad measuring "an area about 2637 sq. ft. (i.e. 3 Cottahs 10 Chittacks 27 sq. ft.) together with the ground floor covered area measuring an area about 1662 sq. ft. plus tin shed brick built covered area measuring an area about 1145 sq. It standing thereon or on part thereof comprised under R.S. Dag No. 768, R.S. Khatian No. 589, Mouza Sodepur, P.S. Khardaha, North-24 Parganas" with the Manager, Shyambazar Branch of the applicant Bank. Again, the said defendant called at the said branch on September 18,2001 to deposit the title deed to cover the property being described as such "Land measuring 3 Cottahs 10 Chittacks 27 sq. ft. along with ground and first floor building covered area approx. 1662 sq. ft. situated at Ramchandrapur, fl Sodepur Dist. 24 Parganas (North) under R.S. Dag No. 768, R.S. Khatian No. 589, Mouza Sodepur, P.S. Khardaha. Book No. 1, Volume No. 128, Page Nos. 295 to 304 being No. 5229 dated 15.9.1999. The aforesaid property is mortgaged to the Bank in connection to a Cash Credit Limit of Rs. 16,00,000/- granted to M/s. Ganapati Agency.". The intention reflected on the two occasions had been to stand as the surety as against the sanctioned limit of Rs. 16 lacs. Factually speaking, the ingredients (principal) for the creation of an enforceable equitable mortgage were completed at Shyambazar Branch. As per the provisions of Clause (f) of Section 58 of the Transfer of Properties Act, 1882 [Act No. IV of 1882], the said defendant has, out of his own free, contractual will, chosen to be the mortgagor in respect of the above immovable property. Accordingly, the sole defendant may be designated as c the borrower/the guarantor/the mortgagor. In support of the above material finding, this Tribunal has also repeatedly considered the extracts of the mortgage registry to evince the wilful, deposit of title deed with itself.;

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