STANDARD CHARTERED BANK vs PREMJIT SINGH ATWAL AND ANR on 17 June 2019

FINAL ORDER

This original application has been filed by the applicant bank, on 09.12.2005, through Mr. Amarjit Bindra, authorized officer, of the applicant bank, under Section 19 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 against the defendants for recovery of a sum of Rs.27,29,992.52 (Rupees Twenty-Seven Lacs Twenty-Nine Thousand Nine Hundred Ninety-Two and Paisa Fifty-Two Only) along with pendentelite and future interest @7.49% per annum w.e.f., 19.08.2005 till the realization of this O.A.

2. The brief facts of the case are that the defendant no.1 & 2 are the principal borrowers of the loan facility, whereas the defendant no. 3 is the partnership concern of defendant no. 4 & 5. It has been submitted that at the request of the defendants, the applicant bank took over the loan from Citi Bank by paying Citi bank on behalf of the defendant no.1 to 3 for the loan availed by them for the purchase of the property-in-question. Hence, the applicant bank took over the loan from Citi Bank and sanctioned an amount of Rs. 29,82,000/- in favour of the defendants, which was repayable in 144 monthly instalments of Rs. 33,937/- each. In order to avail the aforesaid facility, the defendant executed, certain loan documents such as loan application, loan agreement etc. It has also been submitted that the defendants entered into an agreement to sell dated 30.09.1999 in respect of the property-in- question with M/s DLF Universal Limited, and on transfer of the title, the same would be mortgaged with the applicant bank and the applicant bank is entitled to retrieve the title documents of the property from Citi Bank.

3. It has been submitted by the applicant bank that in order to secure the aforesaid loan facility the defendants mortgaged the property in favour of the applicant bank namely, “P 2A

151, located in Wing 2, 15th Floor, Wellington Estate, DLF Phase-5, Gurgaon, Haryana.”

4. It has further been submitted by the applicant bank that after availment of the aforesaid loan facility the defendants did not maintain the financial discipline and inspite of various demands of the applicant bank the defendants failed to regularize the account and in view of the same the account became irregular and declared as N.P.A. Thereafter, the applicant bank also issued loan recall notice dated 27.10.2004, calling upon the defendants to clear their dues, but the defendants failed to regularize the account leaving no option to the applicant bank except to file the present original application against the defendants.

5. It has also been submitted that the applicant bank had requested M/s DLF Universal Ltd., to mark the lien over the property in question so as to execute the sale deed of the property in favour of the defendants. However, on a later stage, when the defendants could not pay the timely instalments their account was declared as NPA and thereafter M/s DLF Universal Ltd. had also cancelled the allotment of the said property in favour of the defendant no.1 to 5.

6. Notices were issued to the defendants, they put appearance through counsels and filed written statement and exhibited the documents.

7. In their written statement, the defendants have raised the objections such as that the present application has not been filed by an authorized officer, the applicant bank has not provided complete statement of account, the applicant bank did not sanction the entire loan amount which led to his lost of flat. The defendants have also raised the objection that after the applicant bank took over the present loan facility from the Citi Bank, they had to sanction a sum of Rs. 29,82,000/- and also to enhance the loan amount towards the payment of the cost of the apartment for an additional Rs. 2,79,000/-, which the applicant bank kept delaying, which ultimately led to the lost of the flat.

8. To prove its case, the applicant bank leads its evidence by filling the affidavit of A-1 Mr. A.S Bindra, Constituted Attorney of the applicant bank who has exhibited the document which include copy of notarized copy of power of attorney as Ex. A/1, loan agreement alongwith promissory note dated 31.07.2003 as Ex. A/2(colly), copy of partnership deed as Ex. A/3, copy of apartment buyer’s agreement executed by DLF in favour of defendant no.1 as Ex. A/4, copy of letter dated 21.10.2003 by the Citi Bank as Ex. A/5, copy of letter dated 12.10.2003 as Ex. A/6, copy of letter dated 08.11.2003 by defendant no. 1& 2 as Ex. A/7, copy of letter dated 09.09.2003 requesting the DLF Universal Ltd. to execute the sale deed of the said flat as Ex. A/8, copy of notice alongwith postal receipts and returned envelops as Ex. A/9(colly), relevant extracts of newspaper publications as Ex. A/10, office copy of notice alongwith original postal receipts as Ex. A/11(colly), copy of reply dated 28.09.2005 as Ex. A/12, office copy of letter dated 11.10.2005 as Ex. A/13, copy of letter dated 17.10.2005 as Ex. A/14 and copy of statement of account under Banker’s Books of Evidence Act as Ex. A/15.

9. Further, to prove its case, the defendant no.1 leads its evidence by filling the affidavit of DW-1 Mr. Premjit Singh Atwal, who has exhibited the documents which include copy of application dated 20.06.1999 as Ex. DW 1/1, apartment buyer’s agreement as Ex. DW 1/2, receipt of payments made to DLF Universal Ltd. as Ex. DW 1/3, receipts of statement evidencing the payment made to DLF Universal from 24.09.1999 to 30.06.2003 as Ex. DW 1/4, sanction letter dated 23.07.2003 as Ex. DW

1/5, payment made to Citi bank by the applicant bank as Ex. DW 1/6, request letter dated 23.07.2003 as Ex. DW 1/7, cheque dated 17.11.2003 as Ex. DW 1/8 and letter dated 20.11.2003 as Ex. DW 1/9.

10. In the present matter, on behalf of the Ld. Counsel of the defendants, it is being argued that the applicant bank, who had taken over the loan from the Citi Bank from which the defendant had availed the facility for housing facility, at the first instance, failed to file the statement of account and the Certificate Under Section 65B of the Indian Evidence Act and further the amount of loan was enhanced by taking over the loan from the applicant bank to the tune of Rs. 29.82 lacs, but the same was not disbursed as a result of which the defendant has to lost his flat and on the because of the negligence on the part of the applicant bank, the defendant cannot be allow to suffer. Accordingly, prayed for dismissal of O.A.

11. On the other hand, the office of Phoenix Arc, i.e., applicant herein, vehemently argued that the dues in the statement of account has been filed. In fact, the defendants fraudulently and without permission of the applicant, had surrendered the said flat and amount was received which was duly disbursed on behalf of the applicant bank to the builder i.e., M/s DLF Universal Ltd. on the flat i.e. situated at ‘P 2A 151, located in Wing 2, 15th Floor, Wellington Estate, DLF Phase-5, Gurgaon, Haryana,’ which was purchased for a sum of Rs. 37.33 lac approximately, in the year 1999. Thereafter, on 27.07.2003, when the account was taken over by the applicant bank then, a sufficient amount of ₹27.03 lac approximately was disbursed in the account of the defendants and merely that the same amount of Rs. 27.03 lac was not disbursed, it could not be said that the flat could not be purchased and the defendants has to lost the flat due to that reason. Thereafter, the defendants voluntarily surrendered the flat and in fact, received the amount from the builder without prior permission of the applicant bank and the same has been proved from the letter dated 28.09.2005 issued by DLF Universal Ltd. and one other letter was given on 17.10.2005, that the said cheque was duly proved on record AW1/12 and AW 1/14. Therefore, once the amount has been paid on behalf of the applicant bank and the same has been refunded to the defendants by the builder, then certainly the defendant is entitled to repay the sum which he failed. Hence, the applicant bank is entitled to recover the said amount along with interest as agreed.

Therefore, prayed for the acceptance of the O.A.

12. Heard and record has been thoroughly perused. In the present matter the statement of account has been filed, however, there is contention on behalf of the defendants only to the extent that the entire sum of Rs. 29.82 lac has not been disbursed and accordingly, he has to lost his flat. However, the statement of account clearly shows that an amount of Rs. 27.03 lac has been disbursed, though on behalf of the defendants one letter dated 12.10.2003 has been placed on record, wherein a request has been made to the bank to disburse the remaining amount, but apparently the said question of not receiving the remaining amount was never raised on behalf of the defendants. Apart that, it is to be mentioned in that context, that the letter was written on behalf of Mr. P.S. Atwal to Standard Charted Bank for not disbursing the remaining amount, but immediately thereafter, an amount of Rs. 2.79 lac was disbursed on 17.11.2003 and the same stands proved from the statement of account as EX AW1/15, which is duly signed by the authorized officer. Therefore, it could not be said that the entire amount was not disbursed on behalf of the applicant bank. Apparently, the said amount was repayable by way of instalments of Rs. 33,937/-, but after making

the payment of a few instalments, later on the said account has gone irregular and the said amount was not paid on behalf of defendants. Apparently, lien with respect to the property in question was created in favour of the applicant bank that is as EX AW 1/7 and also a letter was written on behalf of standard charted bank to the Manager of the M/s DLF Universal Ltd., that is as EX AW 1/8. Thereafter, the notice under Section 13(2) of the SARFAESI Act, 2002, was also issued which is as Ex. AW 1/9 stating therein, that the account was gone irregular on 16.10.2004 and the defendants were called upon for paying a sum of Rs. 26,46,094.18/- with future interest. But despite that notice, the amount was not paid, hence, the present application has been filed. Further, it is mentioned in that context, that the entire amount was not paid on behalf of the defendants to the builder an accordingly, the said flat was cancelled by the DLF and even while cancelling the flat, an amount of Rs.23,48,894.50/- was refunded vide cheque no.213803 dated 14.11.2013 i.e., immediately after the sanctioning of the loan for a sum of Rs. 29.82 lacs and disbursing the amount in the accounts of the defendants herein. In the said letter dated 11.10.2005, issued by DLF as EX AW-1/13, it has been clearly mentioned that the said cheque was duly en-cashed and debited in the account of the defendants on

23.01.2004, which is also duly proved on records and from the letter dated 17.10.2005 i.e. EX AW-1/14, i.e. issued by M/s DLF Universal Ltd., in the favour of Standard Chartered Bank i.e., applicant herein. Hence, it is proved on record that the loan facility was availed on behalf of the defendants and the defendants failed to repay the same even after the issuance of notice. Apparently, the account was gone irregular and the cheques of instalments was starting to bonus from the very beginning i.e. on 21.01.2004 on the first instance and thereafter subsequently. Even otherwise the defendant has received amount from the cancellation of the Cheque of Rs. 23,48,848/- hence, of course, the defendants jointly or severally are liable to pay the same along with interest as agreed. Hence, there is no force in the contention of the defendants that the entire loan amount was not disbursed and the same stands discarded.

13. The defendants have raised the objection that the present O.A. is not filed by the authorized officer, but on perusal of the it is observed that the present O.A. has been filed by Mr. A.S Bindra, authorized officer, of the bank, whose power of attorney executed by the applicant bank in his favour is Ex. A/1.

Therefore, the plea is not maintainable and the same is rejected.

14. The witness of the applicant bank has fully corroborated the averments made in this O.A. The evidence lead by the applicant bank which consists of mainly written / typed documents has gone unchallenged and there is no question of disbelieving the same based upon the documents. This Tribunal has also observed that not an iota document/evidence has been led by the defendants against the claim of the applicant bank and has made only submission on fact as stated in the written statement evidence. In the civil proceedings it cardinal principle, that whosoever alleges a fact he/she has to prove in the court of law by leading evidence mere assertion are not sufficient and nowhere defendants have denied about the availment of the loan. Accordingly, the bank is entitled to recover the entire amount alongwith pendentelite interest as agreed between the parties.

15. In view of the above facts and circumstances, this Tribunal is of the view that the defendants have failed to convince this Tribunal and this Tribunal do not find any merit and reject the contentions of the defendants as baseless. I hereby allow this O.A. as the applicant bank has proved its claim beyond reasonable doubt.

ORDER

(i) . I allow this OA and direct the defendant no. 1 to 5, to pay to the applicant bank, jointly or severally, within a period of 30 days, a sum of Rs.27,29,992.52 (Rupees Twenty-Seven Lacs Twenty-Nine Thousand Nine Hundred Ninety-Two and Paisa Fifty-Two Only) alongwith interest @7.49% with monthly rests, till the realization; failing which the aforesaid amount shall be recovered from the sale of movable and properties of the defendant no. 1 to 5.

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

(iii) . Parties are directed to appear before the Recovery Officer-I, DRT-III, Delhi on 18.07.2019.

(iv) . Copies of final order be sent to all concerned free of cost. File be consigned to records. (DHARMINDER SINGH) PRESIDING OFFICER DRT-III, DELHI

(Pronounced in open court) Dated: 17.06.2019 PD