ICICI BANK LIMITED vs RAVINDRAN NAIR on 9 January 2018

FINAL ORDER

The Original Application has been filed under Section 19(1) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 for recovery of a sum of Rs.11,43,231/- (Rupees eleven lakhs forty three thousand two hundred and thirty one only) is due to the applicant from the defendants together with future interest @ 13% per annum from the date of OA till the date of realization and for other connected reliefs. BRIEF FACTS OF THE CASE

The applicant is M/s.ICICI Bank Ltd. a company incorporated under the Companies Act,1956 and licensed as a Bank under Banking Regulation Act, 1949, having its registered office at

‘Land Mark’, Race Course Circle, Alkapuri, Baroda-390007 and it corporate office at ICICI Towers, Bandra-Kurla Complex, Bandra (E) Mumbai-400051 and branch among other places at Emgee Square, Near Padma Junction, M.G.Road, Ernakulam, The Debt Manager, Ernakulam Branch being one of the Principal Officers and Power of Attorney Holder of the applicant bank is competent to sign and verify the original application and represent the bank in this proceedings.

It is the case of the applicant that 1st and 2nd defendants approached the applicant bank for the purchase of a commercial vehicle vide preliminary credit facility form dated 03.03.2007 and a Credit facility application form dated 09.03.2007. After processing the loan application dated 03.03.2007 and commercial credit facility agreement dated 09.03.2007 applicant sanctioned an amount of Rs.6,30,000/- to the defendants for purchasing Swaraj Mazda Samrat Truck. In addition to the above defendants had also executed an irrevocable power of attorney in respect of vehicle bearing registration No.KL.363312 in favour of the applicant bank and unattested deed of hypothecation in respect of aforesaid vehicle.

As per the terms and conditions of the agreement defendants had agreed to repay the loan amount with interest @ 13% per annum in 36 monthly installments. Despite of repeated demands and several follow ups, the defendants were irregular in adhering to the condition as per the terms of the agreement dated 09.03.2007. Therefore, applicant has sent notice on 21.07.2012 through its lawyer in the last known address of the defendants, terminating the loan and calling upon the defendants to pay the amount of Rs.11,43,231/-. Inspite of receiving the lawyer notice defendants did not clear the debts. Hence, the applicant issued a notice dated 21.07.2012 intimating the termination of the facility and calling upon the defendants pay the total outstanding amount due towards the credit facility. As per the statement of account maintained by the applicant bank, a sum of Rs.11,43,231/- is due from the defendant. Hence the applicant constrained to file the OA.

4. The applicant bank has taken out the summons as directed by the Tribunal and has filed the proof of service on 25.09.2012. The summons issued to the defendants was served on them and they have filed vakalath on 11.01.2013. Though defendants have filed written statement, it was marked as ‘defect’ and the defendants did not cure the defects and it is rejected as “defect not cured”.

5. The evidence on the side of the applicant bank consists of the proof affidavit of its Principal Officer, AW1 and Exhibits A1 to A12 is marked on the side of applicant and closed their side of evidence.

6. 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:-

7. The evidence of the applicant bank by way of proof affidavit of Principal Officer, AW1 reiterates the facts pleaded in the OA and the affidavit is corroborated by the above referred Exhibits A1 to A12 which clearly establishes the case of the applicant bank to allow the present OA. Added to this, the defects raised by the Registry resulting in rejection of the written appears to be intentional without any bonafide reasons and it appears that the defendants admitted the entire case of the applicant as sought for in the present OA.

8. 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 interest pendente-lite and post-decree interest @14% per annum with monthly rests from 06.08.2012 to 15.08.2012 at the contractual rate and thereafter @ 9% per annum with monthly rests from 16.08.2012 on the vehicle loan account. Accordingly the applicant bank is entitled to get a final order on the following lines:-

O R D E R

9. The OA is allowed with costs.

(a) The defendants are directed to pay a sum of Rs.11,43,231/- (Rupees eleven lakhs forty three thousand two hundred and thirty one only) to the applicant together with future interest @14% per annum with monthly rests from 06.08.2012 to 15.08.2012 and thereafter @ 9% per annum with monthly rests from 16.08.2012 till the date of payment; (b) In the event of non-realization of the OA claim amount, the bank is at liberty to proceed against the person and properties of the defendants, as required under law;

(c) The applicant bank shall file memo of costs within ten days from the date of this final order; (d) Recovery Certificate shall be drawn up and issued to the Recovery Officer in terms of the final order.

10. 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 her, corrected by me and then pronounced in the open court on this the 9th day of January, 2018]

(S.V.GOWRAMMA) Presiding Officer

A P P E N D I X Witness for Applicant: AW1: Jayakrishnan P.S, Principal Officer of the applicant bank.

Witness for Defendants: Nil

Exhibits on the part of the applicant

Ext.No. Date Particulars of documents A1. 03.11.2008 Power of attorney executed in favour of the Jayakrishnan P.S, Principal Officer of the applicant bank. A2. 03.03.2007 Preliminary Credit Facility Application form submitted by the defendants. A3. 09.03.2007 Credit Facility application for signed by the defendants. A4.

Irrevocable Power of Attorney executed by the 1st defendant in favour of the applicant bank. A5.

Unattested Deed of Hypothecation executed by the defendants in favour of the applicant. A6. 23.03.2011 Extract of the repayment schedule reflecting payments to be effected from 10.04.2007 to 10.03.2010 along with applicable rate of interest. A7. 21.07.2012 Lawyer notice issued by the applicant bank to the defendants. A8. 21.07.2012 Postal receipt evidencing the issuance of lawyer notice to the 2nd defendant. A9. 21.07.2012 Postal receipt evidencing the issuance of lawyer notice to the 1st defendant. A10.

Acknowledgement card evidencing the receipt of lawyer notice by the 1st defendant. A11.

Acknowledgement card evidencing the receipt of lawyer notice by the 2nd defendant. A12.

Statement of accounts along with IT certificate.

Defendants Exhibits – Nil

(PRESIDING OFFICER)

VK

IN THE DEBTS RECOVERY TRIBUNAL-II, KERALA AT ERNAKULAM

Dated this the 9th day of January, 2018

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

Between M/s.ICICI Bank Ltd. …Applicant And

Ravindran Nair & another

…Defendants

FINAL ORDER