ICICI BANK LIMITED vs SURESH PANDURANG ADIVAREKAR on 22 March 2019

JUDGMENT

1. This is an application under sub-section (1) of section 19

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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.13,86,955/- 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 30th March, 2006 in the sum of Rs.8,20,000/.

4. On 29th March, 2006 defendant nos.1 and 2 signed and executed the loan and security documents as set out in the original application.

5. Defendant nos.1 and 2 agreed to repay the housing loan with equated monthly installment of Rs. 14,137/-.

6. In order to secure the housing term loan, defendant no.1

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deposited original title deeds as set out in paragraph no.5(vii) of the original application.

7. Defendant nos.1 and 2 also submitted the NOC given by the builder in this regard.

8. After availing the housing loan, defendant nos.1 and 2 did not adhere to the terms of sanction and contract. Therefore, the account of defendant nos.1 and 2 was classified as Non-Performing Asset.

9. Thereafter, on 7th July, 2010 the applicant issued demand notice under sub-section (2) of Section 13 of the SARFAESI Act calling upon defendant nos.1 and 2 to pay the sum of Rs.9,45,431.36 within 60 days. Despite notice, defendant nos.1 and 2 did not make the payment.

10. At the foot of the account there was owing, due and payable by defendant nos.1 and 2 the aggregate sum of Rs.13,86,955/-. The applicant has maintained the loan ledger extract and the entries posted therein are made in

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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 20th September, 2013.

11. Defendant nos.1 and 2 were duly served with the summons who was set ex-parte on 12th March, 2015.

12. The applicant has filed evidence affidavit (Exhibit-10) of Mr.Ketan Dixit and list of documents (Exhibit-11) thereby adducing in evidence the documents at Sr.No.AW-1 to AW-9 which are admitted in evidence, read, recorded and exhibited.

13. 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.

14. The applicant has taken more than 60 months to argue the

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case. For the fault of the applicant, defendant nos.1 and 2 cannot be penalized. Under sub-section (24) of Section 19 of 1993 Act the original application is to be disposed of within a period of 180 days. It is also pertinent to note that defendant nos.1 and 2 did not come forward to make the payment even today. Mr.Motwani therefore, submits that pendent lite and future interest at the rate of 8% p.a. from the date of filing of the original application be granted. The submission made by Mr.Motwani is fair and reasonable. I therefore, grant pendent lite and future interest at the rate of 8% p.a. from the date of filing of the original application.

15. 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.

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

17. 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.782/2016 is allowed with cost. (B) Defendant nos.1 and 2 are ordered and directed to pay to the applicant either jointly and severally the aggregate sum of Rs.13,86,955/- (Rupees thirteen lakhs eighty-six thousand nine hundred and fifty- five only) with pendent lite and future interest @ 8.8% p.a. from the date of filing of the original application i.e. 20th September, till payment/realization. (C) The aforesaid adjudicated amount is secured by the valid and subsisting mortgage of the immovable

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property i.e. Flat no.4 & 5, 1st Floor, Chintamani Apartments, Plot No.6, S.No.64/9/1, Village Kulgaon, Badlapur (W), Dist. Thane. (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.

Sd/-

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

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

Total no. of defendants

Name of all the applicant Name of all the defendants

1. Jayesh Forging Company Private Limited,

2. Mr.Vinod K.Sharma,

3. Mrs.Elachi Vinod Sharma Date of receipt/registration 26.07.2004

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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.