STATE BANK OF INDIA vs SMT PALLAVI JAIN on 22 February 2019

JUDGMENT

(22.02.2019)

1. The applicant bank has filed the OA on 21.02.2011 before the Ld. DRT-III which stands transferred to this Tribunal as per direction of

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Hon’ble DRAT, Delhi. The OA has been filed for recovery of Rs.37,44,287/- (Rupees Thirty Seven Lakhs Forty Four Thousand Two Hundred Eighty Seven only) alongwith pendentelite and future interest @11% p.a. with monthly rests till its realization.

2. Brief facts of the case are that the present OA is filed by Sh. Mukul Kumar Sinha, Branch Manager & Principal Officer of the applicant bank who is fully conversant with the facts of the case and is competent to sign, verify and institute the present OA.

3. It is stated that the defendant No.1 & 2 approached the applicant bank for grant of Loan for the purpose of purchase of part of freehold residential property i.e. First Floor & Second Floor with roof right of property bearing No. 2, Block-D, Pocket-3, Sector-11, Rohini, Delhi- 110085 in the name of the defendant No.1. At their request, the applicant bank sanctioned a House Building Loan of Rs.30.00 Lakhs vide sanction letter dated 26.02.2008. The said loan was repayable in 240 EMIs of Rs.30,450/- commencing from March, 2008. In consideration of the grant of the aforesaid housing loan, the defendant No.1 & 2 signed and executed the various loaning and security documents on 26.02.2008 which include Memorandum of Term Loan Agreement for Housing Loan, Affidavit, Agreement to Mortgage, Letter of Undertaking & Declaration, Authorization Letter to debit monthly installments to Saving Bank A/c etc.

4. In order to secure the said loan facility, the defendant No.1 & 2 mortgaged her immovable property i.e. First Floor & Second Floor with roof right of property bearing No. 2, constructed on plot of land measuring 50.40 Sq. Mtrs., Block-D, Pocket-3, Sector-11, Rohini, Delhi- 110085 by deposit of the title deeds in favour of the applicant bank.

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5. However, the defendants failed to fulfill the terms and conditions of the loan agreement and have failed & neglected to deposit monthly installments regularly. The defendant No.1 and 2 admitted and acknowledged their liability in the aforesaid loan account and lastly deposited an amount of Rs.30,000/- on 28.02.2009 as part payment however, despite repeated requests, the defendants have failed to make the payment of the dues. The account was declared as NPA on 31.12.2008. Therefore, the applicant bank issued notice dated 31.03.2009 calling upon defendants to make the payment of the dues, but they failed to pay the same. Hence, the bank has filed the present OA for claiming an amount of Rs.37,44,287/- together with pendentelite and future interest and for issuance of Recovery Certificate for the said amount.

6. It is also stated the applicant bank came to know that Union Bank of India was also claiming mortgage charge over the aforesaid property which was mortgaged in favour of the applicant bank thereafter, the applicant bank lodged complaint with the PS, Saraswati Vihar on 28.04.2009 and with the Economic Offence Wing, Delhi Police on 04.06.2009 for investigation the matter which is pending investigation. It is also stated the applicant bank received notice from this Tribunal in OA No.114/2010 titled as UBI Vs. Praveen Jain & Others in which the applicant bank has been made party as defendant No.4 in OA No.115/2010 titled as UBI Vs. Pallavi Jain & Others in which the applicant bank has been made party as defendant No.3.

7. Notice of the OA was issued to the defendants. Despite service through publication, none appeared on behalf of the defendant No.1 & 2 nor filed the WS, thus, they were proceeded ex-parte vide order dated 15.11.2016. The defendant No.4 & 5 being proforma party have also

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not filed their written statement. The defendant No.3 (UBI) put its appearance through counsel and filed the written statement. Record reveals that defendant No.3 bank moved an IA also moved an IA for amendment in WS which was allowed by this Tribunal vide order dated 25.02.2015.

8. In the written statement, the defendant No.3 i.e. Union Bank of India has mainly taken the plea that the defendant No.1 and 2 herein have also availed certain credit facilities from defendant No.3 bank against the same property which is mortgaged in the present matter and for recovery of their amount, the defendant No.4 has also filed two separate OAs against defendant No.1 and 2 which are now pending before DRT-II Delhi as TA No.06/2012 and TA No.18/2012).

9. As per the case of defendant No.3, defendant No.1 approached the defendant No.3 for a housing loan for purchase of 2nd Floor of the property-in-question. The defendant No.3 sanctioned a term loan of Rs.12.00 lacs on 29.12.2008. The said loan was secured by depositing the title deeds of 2nd Floor of the property-in-question with defendant No.3 on 31.01.2009.

10. Besides this, the defendant No.2 also approached the defendant No.3 bank for a housing loan for purchase of 1st Floor of the property-in- question and also for a Car Loan of Rs.4.20 lacs. The defendant No.3 sanctioned a term loan of Rs.12.00 lacs on 29.12.2008. The said loan was secured by depositing the title deeds of 1st Floor of the property-in- question with defendant No.3 on 31.01.2009. The defendant No.3 also sanctioned a car loan of Rs.4.20 lacs in favour of defendant No.2 against the hypothecation of said vehicle. As per the defendant No.3, a sum of Rs.12,75,579/- (Term Loan) and Rs.4,86,258/- (Car Loan) is due and outstanding as on 31.03.2010 against the housing loan for 1st Floor

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of the property in question and a sum of Rs.13,74,853/- is due and outstanding against the 2nd Floor of the property-in-question as on 31.03.2010.

11. In nutshell, it has been submitted that the property-in-question is mortgaged with defendant no.3 only and not with the applicant bank and that the claim of applicant bank qua the property-in-question is false and fabricated. It has been prayed to dismiss the OA.

12. The applicant bank has filed its evidence by way of affidavit of Shri Lokanath Sardar, Chief Manager of the applicant bank who has proved the various loaning and security documents such as Exb.AW1/1 to Exb.AW1/15.

13. No evidence has been filed by the defendant No.3 (UBI).

14. I have heard the Ld. Counsel for the applicant bank and perused the record. None was present on behalf of the defendant No.3 to argue its case.

15. It is pertinent to note here that the claim of the defendant No.3 on the property in question has already been decided by this Tribunal while passing of final order dated 22.07.2015 in TA No.06/2012 titled as OBC Vs. Pallavi Jain & Ors., and in which the defendant No.3 has been made party as defendant No.4. This Tribunal has passed the following order on the issue of mortgage raised by defendant No.4 in TA No.06/2012: “In order to prove its case, the defendant No.4 has also filed the copies of various loaning and security documents which were executed by the defendants No.1 and 2 in favour of defendant No.4 at the time of taking housing loans from defendant No.4. The defendant No.4 has proved the various documents/title deeds of the property-in-question which were deposited with it as Exb.RW-4/5 to Exb.RW-4/23. The defendant No.4 has also placed on record copy of order dated 06.11.2013 passed in TSA No.13/2012 by Presiding Officer DRT-II Delhi in the matter of SBBJ Vs Union

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Bank of India. The issue involved in the said matter is also the property-in-question. As per the facts of that case as mentioned in order dated 06.11.2013, the SBBJ vide sanction letter dated 22.02.2006 sanctioned home loan of Rs.20.00 lacs to one Ms. Anita Bimbhat and she created equitable mortgaged on 22.05.2006 by depositing the original title deeds with the SBBJ. On the other hand, Union Bank of India, advanced housing loans to Smt. Pallavi Jain and Shri Praveen Jain on 29.12.2008 against first floor and second floor of the property in question and the title deeds were deposited with the Union Bank on 31.01.2009. Since the borrower failed to regularize their account, the Union Bank invoked the provisions of SARFAESI Act and took the possession of the property. The said action of the Union Bank of India was challenged by the SBBJ in TSA No.13/2012 and the said TSA was allowed by Ld. Presiding Officer DRT-II Delhi holding that the SBBJ holds a valid mortgage in respect of the entire property and the Union Bank of India does not have a valid mortgage in respect of the property-in-question. In the light of above discussion and the order passed in TSA No.13/2012, the claim of defendant No.4 is hereby rejected.”

16. Therefore, the objection pertaining to the mortgage has already been decided by this Tribunal while passing of final order dated 22.07.2015 in TA No.06/2012 titled as OBC Vs. Pallavi Jain & Ors., hence, objection of the defendant No.3 in the present OA is not maintainable and thus, same is hereby rejected.

17. The witness of the applicant bank has fully corroborated the averments made in the OA. Even otherwise the whole case of the applicant bank is based on documents and the witness has duly proved all these documents. In my view there is no question of disbelieving the evidence lead by the applicant bank and the applicant bank has proved its case beyond reasonable doubts. The liability of the defendant No.1 & 2 is joint and several.

18. After hearing Ld. Counsel for the applicant bank and perusal of the record, I have no hesitation in allowing this OA. The liability of defendants No.1 and 2 is joint and several.

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ORDER

(i) I allow this OA and direct the defendants No.1 & 2 to pay to the applicant bank, within a period of 30 days, a sum of Rs.37,44,287/- (Rupees Thirty Seven Lakhs Forty Four Thousand Two Hundred Eighty Seven only) alongwith pendentelite and future interest @11% p.a. with monthly rests till its realization, failing which the aforesaid amount shall be recovered from the sale of mortgaged property i.e. First Floor & Second Floor with roof right of property bearing No. 2, constructed on plot of land measuring 50.40 Sq. Mtrs., Block-D, Pocket-3, Sector-11, Rohini, Delhi- 110085 (if not already sold as discussed in para 15 of this order) as well as other personal moveable and immoveable assets of the defendant No.1 & 2. The cost of litigation be also borne by the defendant No.1 & 2. The applicant bank is also directed to file the revised statement of account before the Ld. Recovery Officer of this Tribunal.

(ii) The recovery certificate be issued forthwith and be sent to the Recovery Officer, DRT-I Delhi.

(iii) Parties are directed to appear before the Recovery Officer, DRT-I Delhi on 05.04.2019.

(iv) Copy of this Judgment and recovery certificate be sent to all the parties free of cost by registered post. File be consigned to record room. (Dr. REKHA G. DHAKAR) PRESIDING OFFICER, DRT-I, DELHI ANNOUNCED IN OPEN COURT February 22, 2019