IDBI BANK vs Rupesh on 10 May 2024

J U D G M E N T

1. The Original Application has been filed by the Applicant against the Defendants before this Tribunal on 18.10.2021 and registered as OA 600 of 2021. Thereafter, the O.A. was transferred to the DRT II, Mumbai on 15.10.2022 as per Government notification dt.04.10.2022. Subsequently the same stand transferred to this Tribunal in view of stay order dt. 17.11.2022 to the said Notification dt.04.10.2022, passed by the Hon’ble Bombay High Court, and thus, the matter is registered as TOA No. 147 of 2023.

2. The present OA/TA has been filed for recovery of a sum of Rs.36,29,925.23/- (Rupees Thirty Six Lakh Twenty Nine Thousand Nine Hundred Twenty Five and Twenty Three Paise only) as on 22nd September, 2021 with pendent lite interest at the aforesaid Base Rate + 0.50% p.a. i.e. 10.15% p.a on Housing Loan 1 & Loan for Insurance Premium 1 and at rate of Interest at Base Rate +0% p.a i.e 9.65%p.a ( present Base Rate is 9.65 % p.a. Base Rate to be reset based on extant Internal/Regulatory guidelines issued from time to time) on the Housing Loan (Top Up) and Loan for Insurance Premium 2 with monthly rests plus penal interest at 2%p.a. on the overdue amount plus further expenses, cost and charges, etc. w.e.f. the date of this Application till the date of realization from the date of filing of this application till the date of realization.

3. Facts as succinctly set out in the OA/TA are Defendant No.1 & 2 had approached the Applicant Bank for sanction of Housing Loan facilities for the purchase of Flat No.302, 3rd Floor, Building No.02, Chitra, Akash Ganga Complex, Near Waghbil Bridge, Kavesar, G. B. Road, Uma Developer, Thane (West) 400 607 vide. their Applications dated 10th April, 2012 and after considering the request of the Defendant No.1 & 2 the Applicants have sanctioned the Housing Loan Facilities to Defendant Nos.1 & 2 for a sum not exceeding Rs.27.90 Lakhs and also sanctioned Loan for Insurance Premium 1 of Rs.61,401/- via sanction letter to both Defendant Nos. 1 & 2, dated 7th May, 2012, on the Terms and conditions as more particularly set out therein. It is stated that the Defendant No. 1 & 2 approached the Applicant and request to grant a Housing Loan for the sum of Rs. 18,00,000/- for the purpose of purchase of flat and the same was sanctioned vide sanction letter dt. 03.09.2009 by the Applicant.

4. It is stated that Housing Loan 1 and Loan for Insurance Premium 1 were granted to the Defendants at Floating rate of Interest @ Base Rate + 0.50% p.a. i.e. 11% p.a., (Base Rate at the time of sanction was 10.50 % p.a., Base Rate to be reset based on extant Internal/Regulatory guidelines issued from time to time) and the said Housing Loan 1 and Loan for Insurance Premium 1 were to be repaid in 240 Equated Monthly Installments of Rs.28,798/- for the Housing Loan 1 and Rs.634/- respectively.. The Applicant Bank had disbursed to the Defendants Housing Loan Facility of Rs.27.90 Lakhs and the Loan for Insurance Premium of Rs.61,401/- thus total credit facility aggregating to Rs.28,51,401/-.

5. In order to secure the aforesaid said Housing Loan facility the Defendants the following document in favour of the Applicant Bank:-

a. Housing Loan Agreement dated 17th May, 2012;

b. Power of Attorney dated 17th May, 2012;

c. Affidavit cum undertaking dated 17th May, 2012;

d. Loan for Insurance Premium Agreement dated 17th May, 2012;

6. It is further stated that to secure the aforesaid Housing Loan of Rs. 28,51,401/-, the Defendant No.1 & 2 have deposited the Original title Deeds in is respect of the said Flat No.302, 3rd Floor, Building No.02, Chitra, Akash Ganga Complex, Near Waghbil Bridge, Kavesar, G. B. Road, Uma Developer, Thane (West) 400 607 as more particularly set out in the Schedule I herein. . Hereto annexed and marked as EXHIBIT- “C-1” is the copy of the Agreement to Sale dated 19th April, 2012 executed between Mr. Gopal Mohan Naik and Defendant No.1.

7. It is also stated that Defendant Nos.1 & 2 had once again approached the Applicant Bank for enhancement of Home Loan facility vide. their Applications dated 14th October, 2014 and after considering the request of the Defendant No.1 & 2 the Applicants have sanctioned the enhancement of the Housing Loan (Top Up) and Loan for Insurance Premium 2 Facilities to Defendant Nos.1 & 2 for a sum not exceeding Rs.10 Lakhs and Loan for Insurance Premium 2 of Rs.37,943/- via sanction letter to both Defendant Nos.1 & 2, dated 12th November, 2014, on the Terms and conditions as more particularly set out therein.

8. It is further stated that said Housing Loan (Top Up) and Loan for Insurance Premium 2 Facilities, were granted to the Defendants at Floating rate of Interest @ Base Rate + 0% p.a. i.e. 10.25% p.a., (Base Rate at the time of sanction was 10.25 % p.a., Base Rate to be reset based on extant Internal/Regulatory guidelines issued from time to time) to be repaid in 204 and 192 Equated Monthly Installments of Rs.10,371/- and Rs.403/- respectively.. The Applicant Bank had disbursed to the Defendants Housing Loan (Top Up) Facility of Rs.10 Lakhs and the Loan for Insurance Premium 2 of Rs.37,943/- thus total credit facility aggregating to Rs.10,37,943/-. Defendants also executed the Loan for Insurance Premium Agreement dt. 13.11.2014 in favour of the Applicant.

9. However, after availing the said Home Loan Facility, the Defendant 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 08.06.2018 and further the Applicant issued the Legal Notice on 22.02.2021 called upon the Defendant to make the payment of the outstanding dues but the Defendants failed to pay the dues. Hence, the present OA has been filed.

10. Notice was issued to the Defendants. Despite service, none appeared for the Defendant No. 1 & 2 thus, they are proceeded ex-parte vide order dt. 24.04.2024.

11. The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed on 27.03.2024 through Authorised Signatory Sheela Menon.

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

13. 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 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 is joint and several

14. In the light of above discussions, the Original Application deserves to be allowed against the Defendant No. 1 & 2.

O R D E R

(i) I allow the present OA and direct the Defendant Nos. 1 & 2 to pay to the Applicant Bank, jointly and severally, within a period of 60 days a sum Rs.36,29,925.23/- (Rupees Thirty Six Lakh Twenty Nine Thousand Nine Hundred Twenty Five and Twenty Three Paise only) as on 22nd September, 2021 with pendent lite interest at the aforesaid Base Rate + 0.50% p.a. i.e. 10.15% p.a on Housing Loan 1 & Loan for Insurance Premium 1 and at rate of Interest at Base Rate +0% p.a i.e 9.65%p.a ( present Base Rate is 9.65 % p.a. Base Rate to be reset based on extant Internal/Regulatory guidelines issued from time to time) on the Housing Loan (Top Up) and Loan for Insurance Premium 2 with monthly rests plus penal interest at 2%p.afrom the date of filing of the present OA/TA till its realization.

(ii) Failing which the aforesaid amount shall be recovered from the sale of mortgage property 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 : 10.05.2024

Presiding Officer,

DRT-1, Mumbai