Phoenix ARC Private Limited vs SURESH SHAH on 9 January 2024

J U D G M E N T

1. The Original Application has been filed by the Applicant against the Defendant before Ld. DRT-III, Mumbai, which stands transferred to this Tribunal as per the Govt. Notification dated

26/09/2016 and registered as TA No. 555/2016. The OA has been filed by the Applicant for recovery of Rs.14,84,246.06 (Rupees Fourteen Lakh Eighty Four Thousand Two Hundred Forty Six and Paise Six Only) along with interest @2% p.m. till realization.

2. Facts as succinctly set out in the present OA/TA are that on or about October 2007, Defendant approached ABN-AMRO Bank. Pursuant to the said request, Applicant sanctioned a personal loan of Rs. 13,28,500/-. The said loan was to be paid in monthly installment commencing from 17.11.2007 till 17.10.2012.

3. In consideration of sanction of the said personal loan facility, Defendant executed security & Loaning documents which includes; personal Loan Documentation including Personal Loan Disbursement Instuction letter & Demand Promissory Note.

4. It is stated that ABN-AMRO Bank got substituted by notification dated 19.03.2010. Thereafter, RBS Bank which vide and assignment agreement dated 30.04.2012, assigned, inter alia, to and or in favour of Applicant hereinabove viz Phoenix Trust FY 11- 5, the entire dues receivable from the Defendant under the captioned account along with the underlying security and interest created for repayment of the said loan availed by the Defendant.

5. However, after availing the said facility, Defendant neglected to pay the outstanding dues. Thereafter, the Applicant by their advocate letter dated 15.05.2013 recalled the entire loan and called upon the Defendant to make the payment of outstanding dues. Hence, the present OA is filed.

6. Notice was issued to the Defendant. Defendant put his appearance through counsel and filed the WS on 05.03.2015.

7. In the Written Statement, Defendant has raised the following objections:

(i) There is no privity of contract between the Applicant and Defendant.

(ii) The Applicant has not produced the complete statement of account.

(iii) The OA is bared by limitation.

(iv) The Applicant has approached this tribunal with unclean hands.

8. The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed on 20.10.2015 through their Authorised Signatory Sunil Suryavanshi.

9. The Defendant has filed his completion of documents on 02.05.2016 to prove the averment made in the written statement.

10. I have heard the Ld. Counsel for the Applicant Bank and perused the record. Record reveals that despite opportunity the Defendant failed to argue the matter.

11. Now hereinafter, I would like to decide the issue raised by the Defendant in his written statement:

(i) The first objection raised by the Defendant is that there is no privity of contract between the Applicant and the Defendant.

Record reveals that the loan was originally sanctioned by the Royal Bank of Scotland N.V. to the Defendant. The Royal Bank of Scotland N.V. vide Assignment Agreement dated 30.04.2012 assigned the debt due payable by the Defendant, in favour of the Applicant. Since, the Defendant committed default in repayment of the outstanding dues, the Applicant issued a demand notice dated 15.05.2013 and called upon the Defendant to pay the dues but the Defendant failed to pay the dues. Hence, the objection raised by the Defendant is not sustainable hence, rejected.

(ii) The next objection raised by the Defendant is that the Applicant has not produced the complete Statement of Account.

Record reveals that the Applicant Bank has filed the Statement of Account alongwith the Certificate (Exhibit No.18 of list of documents of Applicant). The Defendant failed to point out any single entry in the statement of account, which is incorrect. Therefore, the objection raised by the Defendant is not sustainable hence, rejected.

(iii) The next objection raised by the Defendant is that the present OA is barred by limitation.

Record reveals that the loan was sanctioned on 24.10.2007. As per the Loan Agreement, the Defendant agreed to repay the said loan in 60 EMIs commencing from 17.11.2007 to 17.10.2012. Whereas the present OA is filed on 05.08.2013.

The Hon’ble Apex Court in Syn. Bank Vs. Channaveerappa Beleri reported in AIR 2006 SC 1874 held that where the amount is payable in instalments on default of every instalment the limitation accrued therefore, I am of considered view that the present OA has been preferred within the limitation. Thus, I do not find any force in the objection raised by the Defendant hence, same is hereby rejected.

(iv) The next objection raised by the Defendant is that the Applicant has approached this tribunal with unclean hands. The Defendant has not explained which material fact required for the just decision of the case has been twisted or suppressed by the Applicant Bank. I have gone through the OA. It contains all the material facts required for the just decision of the case. The objection raised by the Defendant is devoid of force hence, rejected.

12. The witness of the Applicant Bank has fully corroborated the averments made in the OA/TA, even otherwise the whole case of the Applicant Bank is based on documents and the witness has duly proved all these documents as against the Defendant. In my view there is no question of disbelieving the evidence led by the Applicant Bank and the Applicant Bank has proved its case beyond reasonable doubt.

13. In the light of above discussions, the Original Application filed by the Applicant Bank deserves to be allowed against the Defendant.

O R D E R

(i) I allow the present O.A. and direct the Defendant to pay to the Applicant, within a period of 60 days, a sum of Rs.14,84,246.06 (Rupees Fourteen Lakh Eighty Four Thousand Two Hundred Forty Six and Paise Six Only) along with interest @ 2% p.m. till realization.

(ii) Failing which the aforesaid amount shall be recovered from the sale of the mortgaged property, immoveable assets as well as other personal moveable of the Defendant.

(iii) Defendant is hereby directed not to deal with their properties till further direction of Ld. Recovery Officer.

(iv) Defendant shall also pay the cost and expenses of the OA.

(v) Recovery Certificate be issued forthwith and be sent to the Recovery Officer of this Tribunal. Copy of this order be sent to the parties as per rules. File be consigned to record.

Place: Mumbai.

(Dr. Rekha G. Dhakar) Date : 09.01.2024

Presiding Officer, DRT-1, Mumbai.

Tjs/-