ICICI BANK LIMITED vs Albert Campos on 22 March 2019

JUDGMENT

1. This is an application under sub-section (1) of section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (`The 1993 Act’ for short) for the recovery of the dues in the sum of Rs.24,64,875/-

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together with future interest thereon from the date of filing of Original Application till repayment/realization and also for enforcement of securities.

The factual matrix of the case is as under:-

2. Defendant nos.1 and 2 are the principal borrowers and defendant no.1 is the mortgagor.

3. Defendant nos.1 and 2 approached the applicant seeking financial assistance by way of housing loan which was sanctioned on 13th October, 2007 in the sum of Rs.21,46,800/-.

4. On 5th November, 2007 defendant nos.1 and 2 signed and executed the loan and security documents as set out in the original application.

5. In order to secure the housing term loan, defendant no.1 deposited original title deeds on 15th October, 2007 with regard to the immovable property described in paragraph no.5 (vii) of the original application.

6. Defendant no.1 has placed NOC dated 15th October, 2007

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issued by the builder as set out in the original application.

7. After availing the housing loan, defendant nos.1 and 2 did not adhere to the terms of sanction and contract. Therefore, the applicant was left with no alternate but, to classify their account as Non-Performing Asset.

8. Thereafter, notice was issued on 27th October, 2014 calling upon defendant nos.1 and 2 to liquidate the sum of Rs.24,05,910/-.

9. At the foot of the account there was owing, due and payable by defendant nos.1 and 2 the aggregate sum of Rs.24,64,875/-. The applicant has maintained the loan ledger extract and the entries posted therein are made in the usual and ordinary course of banking business which is supported by the certificate as required under law. Since defendant nos.1 and 2 failed and neglected to make the payment, the applicant was left with no other alternate but, to file the original application which was presented on 25th February, 2015.

10. Defendant nos.1 and 2 were duly served with the

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summons who made representation on 9th July, 2015 through their advocate for filing undertaking. However, no Written Statement was filed by them.

11. The applicant has filed evidence affidavit (Exhibit-14) of Mr. Saurab Deshpande and list of documents (Exhibit-15) thereby adducing in evidence the documents at Sr.No.AW-1 to AW-9 which are admitted in evidence, read, recorded and exhibited.

12. I have scrutinized and examined the allegations made in the Original Application and analyzed the evidence adduced by the applicant which has gone unchallenged, uncontroverted and unrebutted.

13. Mr. Motwani submits that pendent lite and future interest at the rate of 14% per annum from the date of filing of the original application till payment/realization be granted. I am not convinced with the arguments advanced by Mr.Motwani. The reason is simple. The summons were duly served upon defendant nos.1 and 2. On 9th July, 2015 defendant nos.1 and 2 made representation through their

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advocate. However, they did not choose to file their Written Statement. The law in this regard is very clear that the Written Statement is to be filed within 30 days from the service of summons. It shows that the applicant has shown leniency in allowing defendant nos.1 and 2 to protract the case beyond the period of 180 days as contemplated under 1993 Act. In the facts and circumstances of the case, I grant pendent lite and future interest at the rate of 8% per annum from the date of filing of the original application i.e. 25th February, 2015 till payment/realization.

14. The applicant has pleaded and established the creation of mortgage by defendant no.1. Under section 60 of the Transfer of Property Act, defendant no.1 is entitled for redemption of the mortgage upon payment of money. I therefore, hold that defendant no.1 is entitled for redemption of mortgage.

15. Upon careful scrutiny and examination of the Original Application, analyzing the evidence and giving due

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weightage to the documentary evidence adduced by the applicant, I am of the view that there is no reason to disbelieve the claim made by the applicant.

16. In view of the observations made hereinabove, the Original Application filed by the applicant deserves to be granted. Hence, I pass the following order:-

ORDER

(A) Original Application No.589/2016 is allowed with cost. (B) Defendant nos.1 and 2 are ordered and directed to pay to the applicant either jointly or severally the aggregate sum of Rs.24,64,875/- (Rupees twenty-four lakhs sixty-four thousand eight hundred and seventy-five only) with pendent lite and future interest @ 8% p.a. from the date of filing of the original application i.e. 25th

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February, 2015 till payment/realization. (C) The aforesaid adjudicated amount is secured by the valid and subsisting mortgage of the immovable property i.e. Flat no.G-2, G FLoor, Asiatil Apartments, Plot no.4, Calangute, Bardez, Goa-403 516. (D) Defendant no.1 is granted liberty to redeem the mortgage property within the period of three months from the date hereof, failing which the applicant shall become entitled to put the mortgaged property for sale and appropriate the sale proceeds in accordance with law. (E) Issue Recovery Certificate. (F) The Registrar is directed to send the copy of Judgment and Recovery Certificate to the applicant and defendants.

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Sd/-

(Deepak M Thakkar) I/c Presiding Officer Debts Recovery Tribunal-1, Mumbai

Case type Original Application Case No. Case year Case Value (Rs.) Total no. of applicant

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Total no. of defendants

Name of all the applicant Name of all the defendants

1. Date of receipt/registration 26.07.2004 Date of first hearing 26.07.2004 Date of last hearing/ Judgment/Reserve for orders 14.02.2019 Total no.of hearings

Judgment pronounce date 14.02.2019 Advocate for the applicant Mrs.Sudha Koloti Advocate for the defendants None District Pune.