ICICI BANK LIMITED vs SUMOHAN INTERNATIONAL on 17 February 2021

J U D G M E N T

The applicant has applied under sub-Section (1) of Section 19 of the Recovery of the Debts due to Banks and Financial Institutions Act, 1993 (for short, “the 1993 Act”) to recover the sum of ₹12,15,038/- from the date of filing of the Original Application till the payment/realization.

The defendant no.1 is a partnership firm. Defendant no.2 is the partner. The defendant no.1 is sued as the principal borrower and the defendant no.2 issued in his capacity as partner.

In October, 2011, the defendant nos.1 and approached the applicant requesting it to grant personal loan in the sum of ₹20 lakhs.

The document dated 17th October 2012 serves dual purposes i.e. (a) Application form, (b) the contract between the parties. By the contract, the defendant

nos.1 and 2 agreed to repay the loan in 36 installments each of ₹71,804/- with interest @ 17.50% per annum. The first and the last installments were to be paid by the defendant nos.1 and 2 as set out in paragraph no.5.3 of the O.A.

The defendants did not adhere to the terms of contract between the parties and committed default which was long and persistent. Therefore, the applicant classified the account of the defendant nos.1 and 2 as non performing assets on 15th August 2014.

On 20th October 2015, the applicant issued recall notice calling upon the defendant nos.1 and 2 to make the payment of the entire outstanding. Despite notice, the defendant nos.1 and 2 failed and neglected to make the payment.

As on 4th April 2016, there was owing due and payable by the defendant nos.1 and 2 to the applicant. The applicant has maintained the statement of account which is annexed to the O.A.

The applicant was left with no other alternate to file the O.A. which was presented on 7th June 2016. The defendant nos.1 and 2 was served by with the summons by way of paper publication in Free Press Journal and Nav Shakti vide affidavit proving service (exhibit-17). On 10th December 2017, this Tribunal set the defendant nos.1 and 2 as ex-parte.

On 10th October 2017, this Tribunal set defendant nos.1 and 2 as ex-parte.

The claim affidavit (exhibit-18) and list of documents (exhibit-19) is tendered in evidence by the applicant. As aforesaid, the defendant nos.1 and 2 are set ex- parte. Therefore, the evidence adduced by the applicant has gone unchallenged, uncontroverted and unrebutted.

Ms lakdawala would submit that the applicant does not press into service the relief with regard to the charging of interest at monthly rest.

The applicant has pressed into service pendent-lite and future interest at the rate of 17.05% per annum from the date of the presentation of the O.A. till payment/realisation. It is pertinent to note that the O.A. was presented on 7th June 2016. The applicant took more than 1 year to serve the summons upon the defendant nos.1 and 2. In my view, the applicant is entitled for pendent-lite and future interest from the effective date of the service of summons that is 31st July 2017. I grant it accordingly.

The learned counsel for the applicant does press reliefs in terms of prayer clause (b) and seeks liberty to move for the relief at the appropriate stage before the learned R.O. Liberty is granted.

Upon careful scrutiny and the examination of the O.A., analysing the evidence and giving due weight- age 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 bank.

In view of the observations here-in above, the O.A. filed by the applicant deserves to be granted.

Hence, I pass the following order:

ORDER

(a) O.A. No.1155 of 2016 is allowed with costs.

(b) The defendant nos.1 and 2 are ordered and directed to pay the applicant either jointly or severally the aggregate sum of Rs.12,15,038/- (Rs. Twelve lacs fifteen thousand and thirty-eight only) with interest at the rate of 17.5% per annum from 31st July till payment/realisation.

(c) Issue recovery certificate.

(d) The Registrar is directed to send the copy of the judgment and recovery certificate to the applicant and defendants by e-mail also.

Sd/- (Deepak M. Thakkar)

Presiding Officer, DRT-2, Mumbai

Sagar & Srishti