Phoenix ARC Private Limited vs ALAN LOBO on 22 March 2024

J U D G M E N T

1. The Applicant has filed the present OA on 28.12.2015 before the Ld. DRT-III, Mumbai, which stands transferred to this Tribunal on 24.11.2016 as per Govt. Notification dated 26.09.2016 and registered as TOA No.272/2016. The Original Application has been filed for recovery of Rs.21,26,843/- (Rupees Twenty One Lakh Twenty Six

Thousand Eight Hundred Forty Three only) with further interest @20% p.a. from the date of filing of the present OA till its realization.

2. Facts as succinctly set out in the OA are that the Applicant is an Assignee of Royal Bank of Scotland (formerly known as ABN Amro Bank). The Applicant has taken over the Debt of the Defendant from the said Royal Bank of Scotland under the valid and subsisting Deed of Assignment dated 30.04.2012. The present OA is filed by Mr. Sunil P. Suryavanshi, Authorized Representative of the Applicant who is fully conversant with the facts of the case and he is competent to sign, verify and institute the present OA.

3. It is stated that in or about September, 2008, the Defendant approached the Assignor Bank at its Mumbai Branch for sanction of a Term Loan. The said request was considered by the Assignor Bank and sanctioned the loan facility of Rs.7,37,211/-. The Defendant by executing personal loan documents, Demand Promissory Note, acknowledged the sanction and disbursement of the said personal loan.

4. It is further stated that in or about March, 2010, the Reserve Bank of India (“RBI”) issued notification in respect of the alteration that has been carried out in the Second Schedule of RBI Act, 1934 (2 of 1934) whereby the word “ABN AMRO BANK N.V.” was ordered to be substituted and the said alternation was carried in pursuance to the provisions of Clause (C) of sub-section (6) of the Section 42 of RBI Act, 1934 and accordingly name of “ABN AMRO BANK N.V.” was changed to “The Royal Bank of Scotland”.

5. It is further stated that the Defendant issued post dated cheques from time to time towards the part payment of the liability and in view of the assignment of the debt on 30.04.2012, the said Royal Bank of Scotland has endorsed the post dated cheques in favour of the Applicant for an aggregate amount of Rs.78,128/-. The Applicant presented one cheque of Rs.19,532/- dated 20.08.2013 for encashment however, the same was returned dishonor with the remark “Account Closed”.

6. It is further stated that the Defendant failed to make the repayment of the outstanding dues. The Applicant issued various letters and reminders to the Defendant to pay the outstanding dues but to no avail. Thereafter, the Applicant by their Advocate Notice dated 16.12.2015 called upon the Defendant to pay the outstanding dues but the Defendant failed to pay the dues. Hence, the present OA.

7. Notice was issued to the Defendant and the Defendant put his appearance through counsel and filed his written statement.

8. In the written statement, the Defendant has raised the following objections that:

(i) The Applicant has not approached this Tribunal with clean hands and has suppressed various true facts before this Tribunal;

(ii) The claim of the Applicant is barred by limitation;

(iii) The Applicant has charged exorbitant rate of interest;

9. The Applicant has filed its claim affidavit alongwith the original documents through Mr. Ramesh Nachare, Authorized Signatory of the Applicant who has proved the loaning and security documents such as Exb.A to Exb.H of the Completion of Original Documents.

10. No CAOD has been filed by the Defendant.

11. I have heard the Ld. Counsel for the Applicant. None appeared for the Defendant to argue the present matter. Perused the record.

12. Now hereinafter, I would like to decide the objections raised by the Defendant in his written statement.

(i) The first objection raised by the Defendant is that the Defendant has not approached this Tribunal with clean hands and has suppressed various true facts before this Tribunal. However, the Defendant has not explained which material fact required for the just decision of the case has been twisted or suppressed by the Applicant. I have gone through the O.A. 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.

(ii) The next objection raised by the Defendant is that the claim of the Applicant is barred by limitation. Record reveals that the loan was sanctioned in the year 2008. As per Personal Loan Disbursement Instruction Letter dated 19.09.2008 (Exb.C of Completion of Original Documents), the loan was repayable in 60 EMIs of Rs.19,532/- commencing from 01.10.2008. The last installment was to be paid on 01.09.2013. Whereas, the present OA is filed on 28.12.2015. 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 installments on default of every installment the limitation accrued therefore, I am of the 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.

(iii) The next objection raised by the Defendant is that the Applicant has charged the exorbitant rate of interest. Record reveals that as per Personal Loan Disbursement Instruction Letter dated 19.09.2008 and Demand Promissory note dated 19.09.2008 (Exb.C of Completion of Original Documents), the Defendant agreed to pay interest @20% p.a. Thus, the objection raised by the Defendant is baseless hence, rejected.

13. The witness of the Applicant has fully corroborated the averments made in the OA, even otherwise the whole case of the Applicant 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 and the Applicant has proved its case beyond reasonable doubt against Defendant.

14. In the light of above said discussions, the present OA 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.21,26,843/- (Rupees Twenty One Lakh Twenty Six Thousand Eight Hundred Forty Three only) with further interest @20% 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 personal moveable and immovable assets of the Defendant.

(iii) The Defendant is hereby directed not to deal with his properties till further direction of this Tribunal.

(iv) The 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) Dated: 22.03.2024

Presiding Officer,

DRT-1, Mumbai

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