KOTAK MAHINDRA BANK LIMITED vs ARIF KAZI on 23 April 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.16,91,384/- together with future interest thereon from the date of

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filing of Original Application till repayment/realization.

The factual matrix of the case is as under:-

2. Defendant no.1 is the principal borrower and defendant no.2 is the guarantor.

3. The ICICI Bank Ltd. unconditionally and absolutely had assigned the debt under the deed of assignment dated 30th June, 2008 to the Asset Reconstruction Company India Pvt. Ltd. and by subsequent deed of assignment dated 31st December, 2009 the Asset Reconstruction Company India Pvt. Ltd. unconditionally and absolutely assigned the debt to the present applicant (Kotak Mahindra Bank Ltd.). By the said assignment, Asset Reconstruction Company India Pvt. Ltd. unconditionally and absolutely assigned unto the applicant all its right, title and interest and the benefits in and to the debts. The assignee is legally entitled to receive the debts from defendants.

4. Defendant no.1 had approached ICICI Bank Ltd. seeking financial assistance by way of business term loan. Pursuant to the loan application made by defendant no.1, ICICI Bank sanctioned the loan in the sum of

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Rs.7,08,000/-. Defendant no.1 agreed to repay the loan in 46 equated monthly installments of Rs.18,637/- each commencing from 22nd February, 2007 with interest @ 2% per annum.

5. Defendant nos.1 and 2 signed and executed the loan and security documents as set out in the original application.

6. After availing the loan, defendant nos.1 and 2 did not adhere to the terms of sanction and contract. The default committed by defendant nos.1 & 2 is long and persistent. Therefore, the account of defendant nos.1 & 2 was classified as Non-Performing Asset. On 4th December, 2013 the applicant through its advocate issued letter to defendant nos.1 and 2 calling upon them to liquidate the entire outstanding amount of Rs.16,91,384/-.

7. At the foot of the account, there was owing, due and payable by defendant nos.1 and 2 to the applicant the aggregate sum of Rs. 16,91,384/-. 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 19th

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December, 2013.

8. Defendant nos.1 and 2 were duly served with the summons. Despite service of summons, defendant nos.1 and 2 did not choose to enter appearance either personally or through their advocate. Therefore, the matter proceeded ex-parte against defendant nos.1 & 2.

9. The applicant has filed evidence affidavit (Exhibit-13) of Mr.Bhaskar V. Shelar and list of documents (Exhibit-14) thereby adducing in evidence the documents at Sr.No.’A’ to ‘J’ which are admitted in evidence, read, recorded and exhibited.

10. 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.

11. Mr.Vinay Deshpande does not press into service the relief in prayer clause (d) of the original application and therefore, the question of passing the orders with regard to this prayer does not arise.

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12. Mr.Vinay Deshpande further submitted that pendent lite and future interest @ 9 % p.a. from the date of filing of the original application till payment/realization be granted. In my view, the submission made by Mr.Vinay Deshpande is fair and reasonable. I therefore, grant pendent lite and future interest @ 9% from the date of filing of the original application i.e. 19th December, 2013 till payment/realization.

13. 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.

14. 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.831/2016 is allowed with cost.

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(B) Defendant nos.1 and 2 are ordered and directed to pay to the applicant either jointly or severally the aggregate sum of Rs.16,91,384/- (Rupees sixteen lakhs ninety–one thousand three hundred and eighty-four only) with pendent lite and future interest @ 9% p.a. from the date of filing of the original application i.e. 19th December, 2013 till payment/realization. (C) Issue Recovery Certificate. (D) 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