INDIAN OVERSEAS BANK vs ANISH J on 29 June 2018

FINAL ORDER

This Original Application is filed on 28.09.2015 under Section 19(1) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 for recovery of a sum of Rs.14,45,359/- from the defendant with future interest thereon @ 14.40% per annum with half yearly rests from 22.09.2015 till realization and by sale of OA ‘A’ and ‘B’ schedule properties. BRIEF FACTS OF THE CASE

1. The applicant is a Nationalized Bank constituted under the Banking Companies (Acquisition of Transfer of Undertaking Act-Act 5 of 1970) having its Central office at 763, Anna Salai, Chennai-6000 002 with Regional Offices and branches at various places in India including a branch at Pandalam, Pathanamthitta. The Senior Manager and Principal Officer is competent to verify and authorized to sign the pleadings and take all legal actions representing the applicant bank.

2. The applicant declares that the application is presented within the period limitation prescribed under Section 24 of the RDBFI Act 1993. As the applicant had granted credit facility to the defendant on 11.08.2012 and the defendant availed agricultural term loan facility on 16.08.2012. The said loan was secured by equitable mortgage by deposit of title deeds on 08.04.2013. The liability under the aforesaid facility and security documents were acknowledged by the defendant vide revival letter dated 09.10.2014. Hence the application is within the period of limitation.

3. It is the case of the applicant that the defendant had approached the applicant bank in August, 2012 seeking to avail an agricultural term loan for the purchase of land for agricultural purpose. Accordingly, the applicant sanctioned a term loan of Rs.10 lakhs to the defendant as per credit sanction advice dated 11.08.2012 under Bhoomi Lakshmi Scheme. The defendant accepting the terms and conditions of sanction had executed a letter of undertaking agreeing to repay the loan amount in 20 equal half yearly installments of Rs.85,450/- commencing from 30th September, 2014 and executed demand promissory note on 16.08.2012 promising to pay to the applicant as sum of Rs.10,00,000/- together with interest thereon.

4. In addition to the above, defendant vide letters dated 16.08.2012 authorized the applicant to pay Mr.Sunish Philip a sum of Rs.10,95,000/- as sale consideration for the 8.26 Ares of land purchased from him and to recover the loan amount under Kerala Revenue Recovery Act in case of any default. The defendant had also executed a hypothecation agreement dated 16.08.2012 hypothecating standing crops and future crops in 8.26 Ares of land situated at Re.Sy.No.359/4 of Palamel Village, Mavelikara Taluk, Alappuzha District more fully described under ‘A’ schedule to the OA, which the defendant intends to purchase. The credit facility was collaterally secured by creation of equitable mortgage of 8.26 Ares of property comprised in Re.Sy.No.359/4 of Palamel Village, Mavelikara Taluk, Alappuzha District covered by Sale Deed No.1912/2012, Nooranad SRO belonging to the defendant more fully described under ‘B’ schedule to the OA. The original of the aforesaid sale deed was deposited with the applicant bank on 08.04.2013, with an intention to create equitable mortgagee over the said property and the same was confirmed by him vide confirmation letter dated 09.04.2013.

5. It is stated that despite the undertaking made by the defendant, he failed to make payment of any installment of principal or interest. On 09.10.2014 the defendant executed a revival letter acknowledging the liability under the term loan account. As defendant failed to make payment of any installment of principal or interest the applicant bank classified account of the defendant as NPA on 30.06.2015 and issued a lawyer notice dated 28.01.2015 demanding the defendant to pay of the entire amount outstanding due under the loan account. The said notice was returned with the endorsement ‘addressee left India’. Despite of continuous demands made by the applicant, the defendant failed to remit the amount and clear the liability. As per the statement of account maintained by the applicant bank an amount of Rs.14,45,359/- is due under the loan account of the defendant. Hence the applicant constrained to file this OA for the recovery of the entire outstanding amount against the defendant.

6. After filing of the OA, the applicant bank has taken out the summons as directed by the Tribunal and has filed the proof of service on 02.11.2015. The summons issued to the defendant was returned with an endorsement ‘addressee left India’. Thereafter on 30.03.2016 and 11.05.2016 defendant appeared though his counsel and sought time of file vakalath and written statement, but he failed to file vakalath or written statement and subsequently he was absent to the proceedings. Hence the defendant was set exparte on 23.05.2017.

7. The evidence on the side of the applicant bank consists of the proof affidavit of its Senior Manager and Principal Officer, AW1 and Exhibits A1 to A11 is marked on the side of applicant and closed their side of evidence.

8. Heard arguments of the applicant bank and perused the records of the case. The following points arise for my consideration:

(i) Whether the applicant is entitled for the reliefs prayed for in the OA?

(ii) What order?

My findings on the above points are as follows:- Point No.(i):

In the affirmative

Point No.(ii):

As per final order.

Reasons:-

9. The evidence of the applicant bank by way of proof affidavit of Senior Manager and Principal Officer AW1 reiterates the facts pleaded in the OA and the affidavit is corroborated by the above referred Exhibits A1 to A11 which clearly establishes the case of the applicant bank to allow the present OA. Added to this, the absence of defendant inspite of appearance through his counsel on 30.03.2016 and 11.05.2016 and subsequent absence to the proceedings appears to be intentional without any bonafide reasons and it appears that he remained absent as he admitted the entire case of the applicant as sought for in the present OA. In view of the above the present OA is to be allowed with costs as sought by the applicant bank.

10. Having regard to the amount advanced, the interest applied, the conduct and operations in the account and the default committed, I am of the view that the applicant bank is entitled to get a final order on the following lines:-

ORDER

(a) The OA is allowed with costs.

(b) The defendant is directed to pay the applicant bank a sum of Rs.14,45,359/- (Rupees Fourteen lakhs forty five thousand three hundred and fifty nine only) with future interest thereon @12.40% per annum with half yearly rests from 22.09.2015 till realization and also its costs from the defendant;

(c) In the event of failure of the defendant to pay the OA claim amount, the bank is at liberty to sell the OA ‘A’ and ‘B’ schedule properties of the defendant and the sale proceeds be appropriated towards the OA claim amount as required under law; (d) In the event of non-realization of the OA claim amount despite the sale of the mortgaged properties referred above, the bank is at liberty to proceed against the other properties of the defendant, as required under law; (e) Schedule ‘A’ and ‘B’ properties shown in the OA shall become part and parcel of the final order of the OA and Recovery Certificate of present OA; (f) The applicant bank shall file memo of costs within ten days from the date of this final order; (g) Recovery Certificate shall be drawn up and issued to the Recovery Officer in terms of the final order.

11. The Registry is directed to communicate copy of the order to the parties concerned by speed post or registered post with AD. [Dictated to the steno, transcribed by him, corrected by me and then pronounced in the open court on this the 29th day of June, 2018]

(S.V.GOWRAMMA) Presiding Officer

A P P E N D I X

Witness for Applicant: AW1: George Thomas, Senior Manager and Principal Officer of the applicant bank.

Witness for Defendant(s): Nil

Exhibits on the part of the applicant

Ext.No. Date Particulars of documents

A1 11.08.2012 Credit sanction advice issued by the applicant to the defendant. A2 16.08.2012 Demand promissory note executed by the defendant in favour of the applicant bank. A3 16.08.2012 Letter executed by the defendant in favour of the applicant bank. A4 16.08.2012 Letter of undertaking of installments executed by the defendant in favour of the applicant bank. A5 16.08.2012 Letter of authorization executed by the defendant in favour of the applicant bank. A6

16.08.2012 Letter of hypothecation (agricultural advances) executed by the defendant in favour of the applicant bank. A7

17.08.2012 Sale Deed No.1912/2012 of Nuranad SRO. A8

09.04.2013 Letter executed by the defendant confirming the deposit of title deed with the applicant bank. A9

09.10.2014 Revival letter executed by the defendant. A10 28.01.2015 Office copy of lawyer notice issued to the defendant calling upon him to pay the outstanding amount. A11

Computerized statement of accounts in respect of the agricultural term loan for the period from 16.08.2012 to 21.09.2015.

Defendant’s Exhibits – Nil

(PRESIDING OFFICER)

‘A’ SCHEDULE

Standing crops, future crops in 8.26 Ares of land situated at Re.Sy.No.359/4 of Palamel Village, Mavelikara Taluk, Alappuzha District.

‘B’ SCHEDULE

District

: Alappuzha

Sub District : Nooranad

Taluk

: Mavelikara

Village

: Palamel

Old. Sy.No. : 359/1/7, 1/5

Block No.

:

Resurvey No. :

Extent

: 8.26 Ares DESCRIPTION OF PROPERTY A part and parcel of land having a total extent of 8.26 Ares in Re.Sy.No.359/4, Palamel Village, Alappuzha District, Mavelikara Taluk, obtained by the defendant under Sale Deed No.1912/2012, Sub Registrar Office, Nooranad, together with all rights of the defendant therein and more specifically described in the schedule thereunder. BOUNDARIES

East : Properties of Kadamankulathu Meletyil Janaki.

North : Panchayat Road.

West : Properties of Thachanamkottu Melethil & George.

South : Property of Kunjumon.

[PRESIDING OFFICER]

IN DEBTS RECOVERY TRIBUNAL-II, KERALA AT ERNAKULAM

Dated this the 29th day of June, 2018

Present: S.V.Gowramma, B.A., LL.B Presiding Officer

Between Indian Overseas Bank Pandalam Branch. …Applicant And Anish.J

…Defendant

FINAL ORDER