ICICI BANK LIMITED vs Kaushik Realcon Pvt Ltd on 8 July 2024

Page No.**KOLKATA DEBTS RECOVERY TRIBUNAL NO. 2****ORDER SHEET (Continuation)**

ICICI Bank Ltd.

TA/383 of 2020 (O.A./796 of 2018)

Case No. \_\_\_\_\_

Vs

Kaushik Realcon Pvt. Ltd. & Ors.

<table border="1"> <thead> <tr> <th data-bbox="131 208 201 271">Date of Order</th> <th data-bbox="201 208 781 271">Order with Signature</th> <th data-bbox="781 208 911 271">Office action with date and dated Signature of parties when necessary</th> </tr> </thead> <tbody> <tr> <td data-bbox="101 298 201 323">13<br/>08.07.2024</td> <td data-bbox="201 298 781 929"> <p>Counsel for the parties:<br/> Ms. Shreyasi Sen, Ld. Advocate representing Mr. Avishek Guha, Ld. Counsel for the applicant Bank.<br/> None for the defendants.</p> <p>T.A./383 of 2020 (arising out of O.A./796 of 2018) is allowed and disposed of.</p> <p>Final order / Judgment is in separate sheet of 6 pages.<br/> File be consigned to record room.<br/> Order be uploaded on the Tribunal's website.</p> <p style="text-align: right;"> <br/> (Arbind Madhav)<br/> Presiding Officer<br/> DRT-2, Kolkata </p> </td> <td data-bbox="781 298 911 929"></td> </tr> </tbody> </table>

1

TA/383 of 2020 – DRT-2/ Kol

**DEBTS RECOVERY TRIBUNAL - 2, KOLKATA**

Jeevan Sudha Bldg. 07^th Floor, 42/C, J.L. Nehru Road, Kolkata – 700071

**Before Shri Arbind Madhav, Presiding Officer**

**T.A. No. 383 of 2020**

(arising out of O.A./796 of 2018)

In the matter of -

**ICICI Bank Limited**, a company incorporated under the provisions of the Companies Act, 1956 and a banking company within the meaning of the Banking Regulations Act, 1949, having its registered office at ICICI Bank Tower, Near Chakli Circle, Old Padra Road, Vadodara, Pin – 390007, Gujarat, and also at Bandra Kurla Complex, Mumbai – 400051, and carrying on business, *inter-alia*, having its branch office in Kolkata at 3A, Gurusaday Road, 3^rd Floor, P.S.- Karaya, Kolkata – 700019.

..... Applicant Bank

-Versus-

- 1. **Kaushik Realcon Pvt. Ltd.**, a private limited company having its office at 3B, Mandeville Gardens, Ballygunge, P.S.- Gariahat, Kolkata – 700019; and also at Kaushik Farm Village, Chandu Budhera Chowk, near SGT College, P.S.- Farukh Nagar, Gurgaon, Haryana – 122505.

- 2. **Raghav Kaushik**, Director of Kaushik Realcon Private Limited, residing at 3B, Mandeville Gardens, 4 Ballygunge, P.S.- Gariahat, Kolkata – 700019; and also at Kaushik Farm Village, Chandu Budhera Chowk, near SGT College, P.S.- Farukh Nagar, Gurgaon, Haryana – 122505.

- 3. **Mrs. Asha Kaushik**, Director of Kaushik Realcon Private Limited, residing at 3B, Mandeville Gardens, 4 Ballygunge, P.S.- Gariahat, Kolkata – 700019; and also at Kaushik Farm Village, Chandu Budhera Chowk, near SGT College, P.S.- Farukh Nagar, Gurgaon, Haryana – 122505.

..... Defendants

Counsel for parties:

For the Applicant Bank : Mr. Avishek Guha and Ms. Shreyasi Sen.

For the Defendants : Ex-Parte

**FINAL ORDER / JUDGMENT**

Delivered on 08.07.2024

Applicant, ICICI Bank Ltd. instituted the present Application being the Original Application No.796 of 2018 filed in DRT-3, Kolkata on 12.10.2018 against three Defendants under Section 19(1) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) for recovery of Rs.1,38,41,586.80 (Rupees one crore thirty eight lacs forty one thousand five hundred eighty six and paise eighty) as on 14.08.2018 together with further interest at the agreed rate, till realization of the entire due in full. Subsequently, the instant case has been transferred to DRT-2, Kolkata vide the Hon'ble Chairperson DRAT, Kolkata's direction vide letter No.4/6/DRAT/KOL/2018(pt.) dated 16.09.2019, such has been recorded vide Ld. Registrar, Kolkata DRT-3's Order dated 30.10.2019 and the same has been renumbered as T.A./ 383 of 2020 vide Ld. Registrar's order dated 20.06.2020.

2. The brief facts of the case as set out by the Applicant Bank in its Original Application, as under:

(i) The Defendant No.1 is a private limited company and defendants No.2 & 3 are the co-applicants and Directors of defendant No.1. The defendants had approached the applicant Bank since the year 2016 till 2017 for purchase of several vehicles from respective dealers. Upon the requests of the defendants and upon verification of the credentials of the defendants, the applicant Bank agreed to sanction 4 (four) loan and/or credit facilities to the defendants.

(ii) The applicant Bank was pleased to grant and disbursed the loan to the defendants No.1 & 3 for an amount of Rs.5,56,000/- (Rupees five lacs fifty six thousand) to the defendants vide sanction letter dated 29.02.2016 upon execution of loan application form followed by execution of credit facility agreement, deed of hypothecation, irrevocable power of attorney all dated 26.02.2016 in favour of applicant Bank. It was further agreed by the defendants that they shall be required to make payment in 60 EMIs @ Rs.11,814/- per month commencing from 01.04.2016 and ending on 01.03.2021. Copy of loan application Form, Board Resolution of defendant No.1, copy of security documents along with copy of the extract obtained from the official website of National Register 'Vahan' are annexed and collectively marked as Annexure 'A'.

(iii) The applicant Bank was pleased to grant and disbursed the 2^nd loan to the defendants No.1 & 3 for an amount of Rs.1,10,00,000/- (Rupees one crore ten lacs) to the defendants vide sanction letter dated 28.04.2016 upon execution of loan application form followed by execution of credit facility agreement, deed of hypothecation, irrevocable power of attorney in favour of applicant Bank. It was further agreed by the defendants that they shall be required to make payment in 60 EMIs @ Rs.2,31,075/- per month commencing from 01.06.2016 and ending on 01.05.2021. Copy of preliminary credit facility agreement Form, Board Resolution of defendant No.1, copy of security documents along with copy of the extract obtained from the official website of National Register 'Vahan' are annexed and collectively marked as Annexure 'B'.

(iv) On request of defendants No.1 & 2, again the applicant Bank was pleased to grant and disbursed the 3^rd loan to the defendants for an amount of Rs.66,84,000/- (Rupees sixty six lacs eighty four thousand) to the defendants vide sanction letter dated 24.06.2016 upon execution of loan application form followed by execution of credit facility agreement, deed of hypothecation, irrevocable power of attorney in favour of applicant Bank. It was further agreed by the defendants that they shall be required to make payment in 60 EMIs @ Rs.1,41,227/- per month under the said agreement on or before the respective due dates and the defendants duly accepted the said loan amount on such terms and conditions. Copy of preliminary credit facility agreement Form, Board Resolution of defendant No.1, copy of security documents along with copy of the extract obtained from the official website of National Register 'Vahan' are annexed and collectively marked as Annexure 'C'.

(v) On April 2017, the defendants No.1 & 2 again approached the applicant Bank for another vehicle loan; on request of defendants No.1 & 2 the applicant Bank was pleased to grant and disbursed the 4^th loan to the defendants for an amount of Rs.7,12,500/- (Rupees seven lacs twelve thousand five hundred) to the defendants vide sanction letter dated 31.05.2017 upon execution of loan application form followed by execution of credit facility agreement, deed of hypothecation, irrevocable power of attorney in favour of applicant Bank. It was further agreed by the defendants that they shall be required to make payment in 60 EMIs @ Rs.14,877/- per month commencing from 01.07.2017 and ending on 01.06.2022 under the said agreement on or before the respective due dates and the defendants duly accepted the said loan amount on such terms and conditions. Copy of preliminary credit facility agreement Form dated 27.04.2017, Board Resolution of defendant No.1, copy of security documents all dated 31.05.2017 along with copy of the extract obtained from the official website of National Register 'Vahan' are annexed and collectively marked as Annexure 'D'.

3. The Defendants enjoyed and utilized the aforementioned credit facilities by opening Accounts in applicant Bank. However, the defendants failed and neglected to abide by the terms and conditions of the facilities. The Defendants did not repay the agreed EMIs and overdue interests in loan Accounts. Since the defendants did not pay any attention to regularize the Accounts inspite of repeated requests made by the Applicant Bank, the Accounts became out of order and was classified as N.P.A. Considering aforesaid default and violation of the terms and conditions of the credit facilities, the applicant Bank issued Loan recall Notice dated 21.06.2018 upon the defendants for Loan Accounts No. (a) LACAL00035740383, (b) LACAL00034269080, (c) LACAL00034392791 and (d) LACAL00034519000 demanding to repay the outstanding Bank's dues, but the defendants failed and neglected to pay the dues; copy of said recall Notices dated 21.06.2018 and 18.07.2018 are annexed and collectively marked as Annexure 'E'. Certified copies of Statement of Accounts along with Certificate under Bankers' Books Evidence Act, with interest calculation sheet, have been filed to show and prove the dues (Annexure 'F'), and future interest at the agreed rate, till realization in full, has been prayed. Applicant Bank submitted that their claim in the Application is within limitation.

4. The notices / summons were sent to the Defendants No.1, 2 & 3 by the Tribunal; service of Notices / summons upon the Defendants by postal service has been successfully completed, such has been recorded vide order dated 16.08.2019 & 05.04.2021; and the defendants appeared through Counsel on 16.08.2019. Thereafter, the defendants did not appear nor filed the written statement; thus, the defendants No.1 to 3 were ordered to be proceeded *ex-parte* vide order dated 06.05.2024. Ld. Counsel of the applicant Bank submitted arguments on 06.05.2024.

5. Applicant Bank has filed the evidence-on-affidavit affirmed by Shamim Aslam, Manager of Bank's 3A, Gurusaday Road Office, Kolkata – 700019 along with the copy of original documents executed by the Defendants. Original documents have been produced by the Applicant Bank; the same have been verified with copies of the documents annexed with O.A., and after verification the original documents have been returned to Mr. Shamim Aslam, Manager of Bank's 3A, Gurusaday Road Office, Kolkata – 700019 on 08.12.2022, such has been recorded in Ld. Registrar's order dated 08.12.2022. The documents produced by the Applicant Bank are exhibited and annexed at 'A-1' to 'A-6'.

I have heard the Ld. Advocate for the Applicant Bank and perused the records.

6. Evidence-on-affidavit, filed by Applicant Bank, has remained unchallenged, un-rebutted and its veracity cannot be put to dispute. Applicant Bank has corroborated the averments made in the O.A. Applicant Bank has proved the sanction of vehicle loans of Rs.5,56,000/-, Rs.1,10,00,000/-, Rs.66,84,000/- and Rs.7,12,500/- on 29.02.2016, 28.04.2016, 24.06.2016 & 31.05.2017. Applicant Bank has proved the hypothecated movable assets, morefully described in Schedule 'B' at page 33 and para 3A at page 9 & 10 of the O.A.

7. On the point of limitation, Loan has been sanctioned on 29.02.2016, 28.04.2016, 24.06.2016 & 31.05.2017; documents have been executed on 26.02.2016, 31.05.2017; original Application has been filed on 12.10.2018. As such, the original Application appears to have been filed well within the period of limitation.

8. Applicant Bank has stated that the outstanding balance in the Loan Accounts (inclusive of accrued interest and other charges calculated upto 14.08.2018) an aggregated sum of **Rs.1,38,41,586.80** (Rupees one crore thirty eight lacs forty one thousand five hundred eighty six and paise eighty) as on 14.08.2018, which is the amount claimed by the applicant Bank in the original Application, and the defendants No. 1, 2 & 3 are, jointly and/or severally, liable to repay the said amount to the applicant Bank with *pendente lite* and future interest, till realization. I allow the claim as made by the applicant Bank in the original Application. Applicant Bank has prayed future interest at the agreed rate, while in Letter of sanction dated 28.04.2016 the rate of interest @ 9.50% per annum, Letter of sanction dated 24.06.2016 the rate of interest @ 9.76% per annum and Letter of sanction dated 31.05.2017 the rate of interest @ 9.25% per annum, have been mentioned. Therefore, in my view, the *pendente lite* & future rate of interest @ 9.25% per annum, with quarterly rests, from 15.08.2018, is allowed.

9. The matter also falls within the territorial as well as pecuniary jurisdiction of this Tribunal. The Applicant Bank has proved to claim made in the O.A./T.A. The T.A. being T.A./383 of 2020 (arising out of O.A./796 of 2018) deserves to be allowed; hence allowed.

A handwritten signature or mark, possibly initials, located at the bottom left of the page.

10. In view of the above, I pass the following order :-

ORDER

(i) T.A./383 of 2020 (arising out of O.A./796 of 2018), filed by the Applicant Bank, is allowed and debt is determined with cost against the Defendants No.1, 2 & 3. It is hereby ordered that the Defendants No.1, 2 & 3 are hereby directed to pay, jointly and / or severally the total debt amount of **Rs.1,38,41,586.80** (Rupees one crore thirty eight lacs forty one thousand five hundred eighty six and paise eighty) due and payable, inclusive of interest and other charges as calculated upto 14.08.2018; and interest for the period *pendente lite* and future rate @ 9.25% per annum, with quarterly rests, from 15.08.2018, till realization of the entire sum due and recoverable.

(ii) Amount, if any, paid by the Defendants in the loan account or amount, if any, recovered by the Applicant Bank after filing of the Original Application, the same may be taken into account while arriving at the exact amount of dues/debt payable by the Defendants. Accordingly, the *pendente lite* and future interest shall be calculated on the reduced amount.

(iii) The defendants No.1, 2 & 3 are debarred from transferring, alienating, encumbering or disposing of the hypothecated movable assets (vehicles), morefully described in Schedule 'B' at page 33 and para 3A at page 9 & 10 of the original application, as under –

<table border="1"> <thead> <tr> <th>Sl. No.</th> <th>Loan Account No.</th> <th>Model</th> <th>Registration No.</th> <th>Engine No.</th> <th>Chassis No.</th> </tr> </thead> <tbody> <tr> <td>1</td> <td>LACAL00034269080</td> <td>Mahindra Scorpio</td> <td>WB02AJ3126</td> <td>MBG4B17695</td> <td>MAITA4MBPG2B20245</td> </tr> <tr> <td>2</td> <td>LACAL00034392791</td> <td>TATA Jaguar</td> <td>WB02AK0105</td> <td>0992914306DT</td> <td>SAJAC2654GTJ76568</td> </tr> <tr> <td>3</td> <td>LACAL00034519000</td> <td>Mercedes Benz</td> <td>WB02AK0709</td> <td>64282641819140</td> <td>WDC1668236M011645</td> </tr> <tr> <td>4</td> <td>LACAL00035740383</td> <td>Hyundai Elite 120</td> <td>WB02AL3299</td> <td>G4LAHM46223</td> <td>MALBM51BLHM395936</td> </tr> </tbody> </table>

The Defendants is also debarred from transferring, alienating, encumbering or disposing any other property(s) either movable or immovable and assets belonging to them till the aforesaid adjudicated debt amount are recovered from the Defendant.

(iv) The defendants No.1, 2 & 3 are given a time of forty-five days from the date of this Final Order / Judgment for repayment of the above mentioned dues, so intimated to them. In case the Defendants fail to pay the dues within the above mentioned time, the Applicant Bank is entitled to recover its dues by sale of secured properties, as aforesaid. Applicant Bank is also entitled to proceed against personal properties of the Defendants No.1, 2 & 3 both moveable and immoveable and also proceed against the Defendants No.2 & 3 personally to recover the dues, in accordance with law.

(v) Let the Certificate of Recovery be drawn up by Ld. Registrar forthwith in terms of Final Order / Judgment for issuance of the same against the Defendants No.1, 2 & 3 in favour of Applicant Bank under Section 19(22) of the Recovery of Debts and Bankruptcy Act, 1993 (amended from time to time) and put up the same for signature for issuance.

(vi) Ld. Recovery Officer shall realize the amount as per the Recovery Certificate from the Defendants No.1, 2 & 3, in accordance with law.

(vii) Ld. Registrar of this Tribunal is directed to place Recovery Certificate in terms of this Final Order / Judgment under section 19(22) of the Act of 1993.

**Accordingly, the Original Application, being T.A./383 of 2020 (arising out of O.A./796 of 2018) is allowed and stands disposed of.**

This order is dictated and corrected by the undersigned and pronounced on this the 08^th day of July, 2024.

Copy of the Final Order / Judgment be uploaded in the Tribunal's Website.

(Arbind Madhav) Presiding Officer DRT-2, Kolkata

tb