ICICI BANK LIMITED vs BHIKU PAWAR on 18 March 2024

J U D G M E N T

1. The Original Application has been filed by the Applicant against the Defendants before Ld. DRT-III, Mumbai, which stands transferred to this Tribunal as per Letter dt. 26.09.2016 of Ld. Registrar DRT-III, Mumbai and registered as TA No. 1011 of 2016. The OA has been filed by the Applicant for recovery of Rs.39,44,636/- (Rupees Thirty Nine Lakh Forty Four Thousand Six Hundred Thirty Six only) with further interest at the rate of 24% p.a. from the date of filing of this application till the date of realization.

2. Facts as succinctly set out in the OA are that Defendant No. 1 & 2 are co-applicants and Defendant No. 1 & 2 approached the Applicant Bank for grant of the Home Loan Facility for an amount of Rs.35,00,000/- vide their offer dt.28.04.2011.

3. It is stated that the Applicant Bank was availed the Home Loan facility of Rs.33,50,000/- to the Defendants and the same was to be repaid by the Defendants as per the agreed terms and conditions as mentioned in the Credit Applicant Form.

4. It is also stated that to secure the facility Defendants executed the Agreements for sale dt.04.06.2011 in respect of the immovable property situated flat no.1, ground floor, B-wing, Ganesh Baug, Tembhi Naka, Thane (W), Mumbai – 400601 and also created the equitable mortgage of the property by depositing the title deeds. Defendants also deposit necessary document in respect of the mortgage property in favour of the Applicant.

5. However, after availing the aforesaid Credit Facility, the Defendants failed to adhere to the terms and conditions of the Sanction of aforesaid Credit Facility and neglected to make the payment to the

Applicant bank. Therefore, the account was declared as NPA on 01.11.2012 and further the Applicant issuing Recall Notice on 30.04.2013 and called upon the Defendants to make the payment of the outstanding dues but the Defendants failed to pay the dues. Hence, the present OA has been filed.

6. Notices were issued to the Defendants. Despite service, none appeared for the Defendants nor filed the WS thus, they were proceeded ex-parte on 19.01.2024.

7. The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed on 28.10.2015 through its Debt Manager Mr. Ashok Thakur.

8. I have heard the Ld. Counsel for the Applicant Bank and perused the record.

9. 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 as against the Defendants. 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. The liability of Defendant No.1 & 2 are joint and several.

10. The contract between the Applicant Bank/FI and the Defendants comes to an end. So far as the question of pendentelite and future interest is concerned, according to the new Webster’s Comprehensive Dictionary of the English Encyclopedic Edition (2004) the word pendentelite which is a Latin word means pending or during suit.

Pendentelite and future interest would start from the date when the proceedings before the Court are filed. After the filling of the OA as per the provisions of Section 19(20) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (as amended in 2000) which is analogous to Section 34 of the CPC, the Tribunal/Court has discretion in awarding pendentelite and future interest. Section 19(20) of the DRT runs as follows: “19(20) The Tribunal may, after giving the applicant and the defendant an opportunity of being heard, pass such interim or final order, including the order for payment of interest from the date on or before which payment of the amount is found due up to the date of realization or actual payment on the application is it thinks fit to meet the ends of justice.”

11. In the cases reported in State Bank of India vs. Sarathi Textiles & Ors. 2008(3) SCALE 409, C. K. Sansankan Vs. Dhanlakshmi Bank Ltd. 2009(2) D.R.T.C. 320 S.C. and Sardar Associates and Others Vs. Punjab & Sind Bank and others, AIR 2010 (SC) 218 it was held that it is the discretion of the court toward the pendentelite and future interest which has to be exercised fairly. I am also supported in my view by the Hon’ble Supreme Court in a case titled Central Bank of India Vs. Ravindra and others reported in 2001 SC page 3095. On the basis of the fore going discussion and considering the present fall in rate of interest, I am of the opinion that interest of justice will be served if pendentelite and future interest is awarded at the rate of 13% p.a. (simple).

12. In the light of above discussions, the Original Application deserves to be allowed against the Defendant No. 1 & 2 are jointly and severally.

O R D E R

(i) I allow the present OA and direct the Defendant No. 1 & 2 to pay to the Applicant Bank, jointly and severally, within a period of 60 days, a sum of Rs.39,44,636/- (Rupees Thirty Nine Lakh Forty Four Thousand Six Hundred Thirty Six only) with further interest at the rate of 13% p.a. from the date of filing of the present OA till its realization.

(ii) Failing which the aforesaid amount shall be recovered from the sale of hypothecated assets and other personal moveable and immoveable assets of the Defendants.

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

(iv) Defendants 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 : 18.03.2024

Presiding Officer,

DRT-1, Mumbai

SP/-