ARCIL vs RINU KOSHY K.R on 29 August 2025

1. Rinu Koshy K.R., S/o.O.Raju, P.O.Box No.1802, Port Khalid, Sharjah, U.A.E. Also at: T.C.12/1073, Kayalorath, Barton Hill, Law College Junction, Trivandrum - 695 037.

2. M/s.B’ Canti Homes Pvt. Ltd., Represented by its Managing Director, P.B.No.6125, Jawahar Nagar, Trivandrum – 695 041.

…Defendants

This Original Application having been heard on 28.08.2025 in the presence of Advocates M/s.B.S.Suresh Kumar and Ashley

John for the applicant, 1st defendant being exparte and the 2nd defendant being absent and stood over to this day for consideration, the Tribunal delivered the following: F I N A L O R D E R

This Original Application has been filed under S.19(1) of the Recovery of Debts and Bankruptcy Act, 1993 for recovery of a sum of Rs.53,33,133.57 due under housing loan account together with future interest thereon @12.50% per annum with monthly rests from the defendants and by sale of the OA schedule property. Facts of the case:

2. At the request of the 1st defendant, the Thiruvananthapuram Branch of State Bank of India had granted a housing loan of Rs.35.24 lakhs as per sanction letter dated 29.08.2007. The 1st defendant agreed to mortgage 0.854 cents of land out of 29.461 cents along with a Flat No.D on the 7th floor of B’Canti C-Coqueiro in Thiruvananthapuram. The 2nd defendant is the owner-cum-builder of the said apartment complex. The defendants 1 and 2 executed a tripartite agreement with State Bank of India on 24.08.2007 whereby the 2nd defendant agreed to sell and the 1st defendant agreed to purchase the flat. The 2nd defendant had also undertaken to handover all original documents in respect of the apartment as soon as the sale deed is registered but the documents of title were not registered. The 1st defendant failed to regularise the loan account as per the terms and conditions of the loan agreement and the account had to be classified as NPA w.e.f. 18.04.2011. The bank by letter dated 11.05.2012 recalled the loan and issued notice to the 2nd defendant invoking clauses 10 and 11 of the tripartite agreement. Since no payments were made by the defendants, the bank was constrained to file the OA claiming the following reliefs:

(i) To recover a sum of Rs.53,33,133.57 together with pendente lite and post-decree interest thereon from the defendants and by sale of the OA schedule property;

(ii) To recover the costs, charges and expenses from the defendants;

(iii) To issue Recovery Certificate to the Recovery Officer with a direction to recover the amount and pay it to the applicant bank.

3. The defendants were duly served with summons. But the 1st defendant neither appeared nor was he represented and hence he was set exparte on 09.07.2014.

4. The 2nd defendant/builder entered appearance and filed written statement on 18.06.2013 and counter proof affidavit on 24.09.2014 denying the claim made by the applicant bank. But he has not adduced any documentary evidence to buttress his contentions. The 2nd defendant remained absent from the proceeding from 02.12.2015 onwards and none appeared and represented to address arguments in this case. Proof Affidavit:

5. In order to establish the claim on behalf of the applicant bank, one Mr.Sivaprasad K., Senior Manager of the applicant has filed proof affidavit and produced the loan documents marked as Exhibits A1 to A14. The availing of the housing loan is well established from the documents placed by the applicant bank. A sum of Rs.53,33,133.57 is outstanding in the housing loan account as on 31.01.2013, which is clearly established from the account statements marked as Exts.A12 and A13.

6. On careful evaluation of the materials, it could be inferred that the 2nd defendant/builder, 1st defendant/borrower and State Bank of India had executed Ext.A6 tripartite agreement dated 24.08.2007 wherein at clause 11 it is averred that in case the loan is recalled by State Bank of India before the builder has actually hand over possession of the flat to the borrower-cum- purchaser, the builder shall not hand over possession of the flat to the borrower and shall refund the entire loan outstanding along with other dues payable to State Bank of India without obtaining any consent from the borrower. In the instant case, as the loan account became highly irregular due to non-payment of the monthly installments, the bank issued Ext.A8 notice dated 11.05.2012 to the 1st defendant calling upon him to repay the outstanding dues of Rs.48,93,245/-. Thereafter on 12.05.2012, a letter dated 12.05.2012 marked Ext.A9 was issued to the 2nd defendant by drawing his attention to clauses 10 and 11 of Ext.A6 tripartite agreement and called upon him to repay a sum of Rs.48,93,245/- within 15 days.

7. Since neither the borrower nor the builder has refunded the amount, the bank issued Ext.A10 lawyer notice dated 15.10.2012 recalling the liability. In response to Ext.A10 lawyer notice, the 2nd defendant issued Ext.A11 reply dated 30.10.2012 stating that apartment is ready for taking possession and registration can be done on or before 20.01.2013. According to the applicant bank, possession of the flat was not handed over to the 1st defendant by the 2nd defendant and no mortgage was created in respect of the OA schedule property and the outstanding dues were also not repaid by the defendants. In the above circumstance, by virtue of Ext.A6 tripartite agreement, the 2nd defendant is also liable to repay the amount due under the housing loan account.

8. Pending the OA, the Tribunal passed an order of conditional attachment in IA No.768/2013 on 11.03.2013 over the property scheduled therein. As the defendants failed to furnish security for the required sum or to show cause why such security should not be furnished within the stipulated time, the attachment sought for as against the petition schedule property was made absolute on 28.08.2025. Hence the applicant bank is entitled to realise the amount found due as above by sale of the attached property also.

9. Considering the amount advanced, interest applied, default committed and the facility granted being a housing loan, I am of the view that the applicant bank is entitled to get pendente lite and post decree interest @9% per annum, which is reasonable in the facts and circumstances of the case.

10. The applicant bank, therefore, is entitled to get a final order on the following lines: In the result, the applicant bank is given a final order allowing it to recover:

(i) the sum of Rs.53,33,133.57 (Rupees fifty three lakhs thirty three thousand one hundred and thirty three and Paise fifty seven only) due under the housing loan account from the defendants and by sale of the property attached under IA No.768/2013;

(ii) Pendente lite and post-decree interest @9% per annum on the sum of Rs.53,33,133.57 (Rupees fifty three lakhs thirty three thousand one hundred and thirty three and Paise fifty seven only) from 22.02.2013 till realization from the defendants and by sale of the property attached under IA No.768/2013; and

(iii) costs and expenses borne by it for realization of the loan from the defendants.

11. The schedule to IA No.768/2013 shall be appended to this final order.

12. The applicant bank shall file memo of costs within ten days from the date of this final order.

13. Recovery Certificate shall be drawn up and issued to the Recovery Officer in terms of the final order.

14. Communicate copy of this order to both parties as provided in R.16 r/w R.2(c) of the Debts Recovery Tribunal (Procedure) Rules, 1993. (Dictated to my PA, corrected and pronounced by me in the open Tribunal on this the 29th day of August, 2025)

[SOVAN KUMAR DASH] PRESIDING OFFICER

A P P E N D I X Witness for Applicant: AW1: Shri.Sivaprasad K., Chief Manager of the applicant bank.

Witness for Defendant(s): Nil

Applicant’s Exhibits

Ext.No Date Particulars of documents

A1 24.08.2007 Loan application submitted by the 1st defendant to the applicant bank. A2 29.08.2007 Arrangement letter issued by the applicant bank and duly signed by the 1st defendant. A3 30.08.2007 Memorandum of loan agreement executed by the 1st defendant in favour of the applicant bank. A4 24.08.2007 Agreement for undivided share in land executed between the defendants. A5 24.08.2007 Construction agreement executed between the defendants. A6 24.08.2007 Tripartite agreement executed between the applicant bank and the defendants. A7 30.08.2007 Agreement to mortgage executed by the 1st defendant. A8 11.05.2012 Letter for recall of loan issued to the 1st defendant. A9 12.05.2012 Letter for invoking clause 10 and 11 of the Tripartite agreement issued to the 2nd defendant. A10 15.10.2012 Lawyer notice issued to the defendants. A11 30.10.2012 Reply issued by the 2nd defendant against the Exhibit A10 notice. A12 22.02.2012 Statement of account with regard to the Housing loan duly certified. A13 22.02.2013 Statement of unapplied but accrued interest in Exhibit A12 account duly certified.

A14 .. Statement of rate of interest applied in Exhibit A12 account.

Defendants’ Exhibits – Nil

PRESIDING OFFICER

ATTACHMENT SCHEDULE

PRESIDING OFFICER

IN THE DEBTS RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM

PRESENT: SRI.SOVAN KUMAR DASH PRESIDING OFFICER

Dated the 29th August, 2025

TA No.384/2016 (OA NO.125/2013)

Between

Asset Reconstruction Company- India Limited, Office No.1G, 1st Floor, Century Plaza, No.560-562, Anna Salai, Teynampet, Chennai – 600 018. …Applicant

And

Rinu Koshy K.R., S/o.O.Raju, P.O.Box No.1802, Port Khalid, Sharjah, U.A.E. Also at: T.C.12/1073, Kayalorath, Barton Hill, Law College Junction, Trivandrum - 695 037 & another.

...Defendants

F I N A L O R D E R