IDBI BANK vs MR ANKIT XAVIER on 1 March 2021

J U D G M E N T

It is the applicant’s application under sub- Section (1) of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act 1993 renamed as the Recovery of Debts and Bankruptcy Act 1993 (for short “the 1993 Act”).

The applicant has filed the Original Application for the recovery in the sum of ₹14,05,369/- with interest @ 13.25% per annum.

The defendant nos.1 and 2 are the principal borrowers and the defendant nos.3 is the guarantor.

The defendant nos.1 to 3 approached to the applicant on 26th May 2008 seeking financial assistance by way of education loan. On 27th May 2008, the applicant sanctioned the education loan in the sum of ₹7,50,000/- with interest @ 13.25 p.a. The loan was to be repaid in 7 years inclusive of the moratorium period of 1 year and 6 months. The defendant nos.1 and 2 agreed to repay the loan by 66 EMIs’ of ₹19,255/- commencing from 05th January 2010.

On 20th June 2008, the defendant nos.1 and 2 signed and executed the education loan agreement. The day prior to that i.e. 19th June 2008, the defendant no.3 executed the guarantee agreement, thereby guaranteed the due repayment of the education loan in case of default. After availing the education loan defendant nos.1 to 3 did not adhere to the terms of sanction and the contract. Therefore, the applicant through its advocate issued recall notice on 12th October 2012 calling upon the defendants to make the aggregate outstanding

payment in the sum of ₹13,50,207/- due and payable on 5th October 2012. Despite notice, the defendants failed and neglected to make the payment.

As on 5th January 2013, there was owing, due and payable by defendant nos.1 to 3 to the applicant the sum of ₹14,05,369/- with interest @ 13.25% p.a. The applicant has maintained the accounts in this regard.

Since, the defendant nos.1 to 3 failed to make the payment, the applicant was left with no other alternate but to file the Original Application which was presented on 31st January 2013.

(8) The summons was duly served upon the defendant nos.1 to 3. Order-sheet dated 12th November 2013 would reveal that the service of summons upon defendant nos.1 to was complete. The defendants did not choose to enter appearance either personally or through their advocate. Therefore, the matter proceeded against the defendants set ex-parte. Mr Rizvi drew my attention to affidavit (exhibit-23) stating that the defendants have not filed any application for setting aside the ex-parte or no written statement order.

The applicant has filed evidence affidavit (exhibit-8), list of documents (exhibit-9) thereby

adducing in evidence, the documents at AW1 to AW7 which are admitted in evidence, read, recorded and exhibited. The applicant has filed additional evidence affidavit (exhibit-22).

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.

Mr Rizvi would submit that the applicant be granted pendent-lite and future interest @ 13.25% p.a. from the date of Original Application i.e. 31st January till payment/realization. The submission made by Mr Rizvi is fair and reasonable taking into consideration that the defendants did not choose to enter appearance either personally or through the advocate. I Therefore, granted pendent-lite and future interest @ 13.25% p.a. from 31st January 2013 till payment/realization.

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.

In view of the observations made hereinabove, the Original Application filed by the applicant,

Sd/- (Deepak M. Thakkar) Presiding Officer

Sharma & Sagar

deserves to be granted. Hence, I pass the following order:

ORDER

(a) Original Application No.222 of 2017 is allowed with costs.

(b) Defendant nos.1 to 3 are ordered and directed to pay to the applicant either jointly or severally the aggregate sum of ₹14,05,369/- with pendent-lite and future interest @ 13.25% p.a. from 31st January 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 defendant by e-mail also.