KOTAK MAHINDRA BANK LIMITED vs Sunita Kalyansingh Sharma 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.29,73,154/- together with future interest thereon from the date of filing of the Original Application till repayment/realization. The factual matrix of the case is as under:-

2. Defendant is the borrower who had approached the ICICI Bank Limited seeking financial assistance from it. Pursuant to the loan application made by defendant, the ICICI Bank Limited sanctioned the vehicle loan in the sum of Rs.4,20,000/- for purchase of vehicle. Defendant signed and executed the loan and security documents in favour of the ICICI Bank Ltd. as set out in the original application.

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3. On 31st December, 2007, the ICICI Bank Limited assigned the debt with underlying security to the applicant. The applicant therefore, observed that the sum of Rs.12,10,028/- was due and payable by defendant with interest @2% per month. Defendant has deliberately neglected to produce the vehicle for inspection. Therefore, the applicant through its Advocate issued letter dated 24th December, 2013 calling upon defendant to liquidate the outstanding amount in the sum of Rs.29,73,154/-.

4. Defendant had the option to repay the amount as per the repayment schedule in 59 equated monthly installments and the last installment was due and payable on 10th January, 2011 and the original application is filed on 8th January, 2014 which is well within time.

5. At the foot of the account, there was owing, due and payable by defendant to the applicant the aggregate sum of Rs.29,73,154/-. The applicant has produced the statement of account maintained by the ICICI Bank Limited in its ordinary and regular course of business in the name of defendant.

6. Defendant was duly served with the summons who was set

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ex-parte on 6th August, 2015 upon filing of the affidavit of service by the applicant.

7. The applicant has filed the evidence affidavit (Exhibit-13) of Shri Faiz Siddiqui and list of documents (Exhibit-14) thereby adducing in evidence the documents at sr.nos.AW-01 to AW- 11 which are admitted in evidence, read, recorded and exhibited.

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

9. Mr. Deshpande submits that the applicant does not press into service the relief in terms of prayer clauses 6(c) to 6(i) of the original application. Therefore, the question of passing the orders and relief with regard to these prayers does not arise.

10. Mr. Deshpande further submits that the pendent lite and future interest @10.5% per annum from the date of filing of the original application till payment/realization be granted. I am not inclined to grant the pendent lite and future interest at the

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rate asked for by the applicant. It is pertinent to note that the original application was presented on 8th January, 2014. Thereafter, no compliance was made by the applicant from 7th June, 2014 till 20th January, 2015. The summons was ordered to be issued only on 1st June, 2015. On 6th August, 2015 the application for substituted service was made. No affidavit proving the service of summons by the applicant through paper publication was filed till 23rd October, 2015. On 6th April, 2016 the applicant filed the evidence affidavit. Understood thus, the applicant has taken more than 63 months to argue the case from the date of presentation of the original application. At the same time, I am conscious of the fact that defendant did not come forward to make the payment even today. In the fact and circumstances of the present case, I grant the pendent lite and future interest @10.5% per annum from today i.e. 22nd March, 2019 till payment/realization.

11. Upon careful scrutiny and the examination of the Original Application, analyzing the evidence and giving due weightage to the documentary evidence adduced by the

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applicant, I am of the view that there is no reason to disbelieve the claim made by the applicant bank.

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

ORDER

(A) Original Application No.836/2016 is allowed with cost. (B) Defendant is ordered and directed to pay to the applicant the aggregate sum of Rs.29,73,154/- (Rupees twenty-nine lakhs seventy-three thousand one hundred and fifty-four only) with pendent lite and future interest @ 10.5% p.a. from today i.e. 22nd March, 2019 till payment/ realization. (C) Issue Recovery Certificate.

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(D) The Registrar is directed to send the copy of Judgement and Recovery Certificate to the applicant and defendant.

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.) 29,73,154/- Total no. of applicants

Total no. of defendants

Name of all the applicant Kotak Mahindra Bank Ltd. Name of all the defendants Mrs. Sunita Kalyansingh Sharma Date of receipt/registration 07.06.2014 Date of first hearing 17.10.2014 Date of last hearing/judgement /Reserve for orders 22.03.2019 Total no.of hearings

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Judgement pronounce date 22.03.2019 Advocates for the applicant Mr. Vinay Deshpande i/b V. Deshpande & Co. Advocate for the defendant None District Mumbai

Judgment typed on : 22.03.2019 Judgment finalized on: Judgment uploaded on: