JAYARAM MOHAPATRA Vs. DEBTS RECOVERY APPELLATE TRIBUNAL

JUDGEMENT

(1.) Heard Mr. Asutosh Panda, learned counsel for the petitioner, Mr. S.R. Patnaik for opposite party No. 4 and Mr. Biswajit Nayak for the intervenor. Defendant No. 2 in O.A. No. 80 of 2002 being the Managing Partner of Defendant No. 1- M/s. Panchasakha Prakashan, has filed this writ petition seeking to quash the orders dated 20.6.2005 and 5.1.2007 passed by the Presiding Officer, Debts Recovery Tribunal, Cuttack under Annexures-1 and 5 as well as the order dated 25.7.2011 passed by the Debts Recovery Appellate Tribunal, Kolkata under Annexure-12 and the auction notice dated 1.12.2008 published in daily news paper "the Samaj" under Annexure-6 with a further prayer to direct the opposite party No. 2 to hear the matter afresh giving opportunity of hearing.

(2.) Opposite party No. 4-Oriental Bank of Commerce being the applicant filed an application before the Debts Recovery Tribunal, Cuttack seeking recovery of Rs. 10,80,223.26 with interest @ 17.86% per annum with quarterly rests with pendente lite and future interest together with costs from the date of application till the date of realization from the petitioner and opposite parties 5 to 7 jointly and severally and from their personal assets.

(3.) Opposite party No. 5 is a partnership firm engaged in printing and publishing of books and stationeries etc. Petitioner is the Managing Partner and opposite parties 3 and 4 are the other partners of opposite party No. 5. Opposite party No. 5 through the petitioner and opposite parties 6 and 7 approached the opposite party No. 4-Bank for financial assistance for working capital to run the printing unit. On consideration of the application, opposite party No. 4-Bank by letter dated 19.3.1998 sanctioned cash credit (hypothecation) facilities to the limit of Rs. 10.00 lakhs with interest @ 17.86% per annum with quarterly rests. In order to avail the said loan facilities sanctioned by the opposite party No. 4-Bank to the opposite party No. 5-Firm, the petitioner, and opposite parties 6 and 7 executed an agreement of hypothecation of assets for cash credit (LD-11) and an agreement for cash credit (LD-9) for cash credit (hypothecation) limit of Rs. 10.00 lakhs with interest @ 17.86% with quarterly rests. In addition to the secured documents executed in favour of opposite party No. 4-Bank, the petitioner and opposite parties 6 and 7 individually executed separate agreements of guarantee on 4.3.1998 giving continuous guarantee for the payment of all the dues to the opposite party No. 4-Bank in the cash credit account of the partnership firm- opposite party No. 5. The petitioner has also created an equitable mortgage over the properties mentioned in Schedule "A" of the application by depositing the original title deeds and by signing on the memorandum of deposit of title deeds. After availing the credit facilities, since the opposite party No. 5 failed to keep up their promise and committed default in repayment of the loan amount due to the opposite party No. 4-Bank, application was filed before the Debts Recovery Tribunal, Cuttack, which was registered as O.A. No. 80 of 2002 for realization of the said amount of Rs. 10,80,223.26 with interest @ 17.86% per annum with quarterly rests from the date of filing of the application till the date of realization with cost and for other reliefs.