SOUTH INDIAN BANK vs MOHAMMED SHERIF on 23 August 2018

FINAL ORDER

The applicant bank has filed the above application on 01.03.2012 under S.31A of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 – hereinafter referred to as ‘the Act’ – as decree holder in OS No.506/2009 of the Sub Court, Trivandrum for issuing Recovery Certificate in terms of the decree dated 24.07.2010 for recovery of the amount due there under.

2. The applicant bank had filed OS No.506/2009 before Sub Court, Thiruvananthapuram for recovery of amount due and obtained decree dated 24.07.2010, allowing it to recover the sum of Rs.9,08,794/- with future interest from 01.01.2009 at the rate of 19.5% per annum with monthly rests from the defendants jointly, severally and from their assets both movable and immovable and by the sale of plaint schedule vehicle

3. According to the applicant bank, the defendants did not pay the amount due under the decree, and hence they are entitled for a recovery of a sum of Rs.17,73,619/- (Rupees Seventeen Lakhs Seventy Three thousand Six hundred and Nineteen only) as on 01.03.2012. The applicant prayer for issuance of Recovery Certificate for recovery of the outstanding amount due as per decree together with future interest from the defendants and by sale of the decree schedule property.

4. The defendants were duly served with summons and applicant has filed proof of service on 15.03.2012.The defendants filed vakalath and written statement on 02.07.2013 contending that the Original Application is filed by suppressing and distorting material facts. The averment that the applicant sanctioned and defendant availed a FSL(O) vehicle loan of Rs.10,00,000/- undertaking to repay the loan amount with interest on 10.04.2006 after executing necessary documents with the bank is not correct and denied by the defendant.

5. It is further submitted that the defendant had never acknowledged or accepted any sanction letter as mentioned in the original application nor had availed or stood as a surety for any loan as alleged with the applicant bank. The defendants further denied the ledger account maintained by the applicant bank an amount of Rs.9,08,794/-. The decree was obtained after suppressing material facts without proper notice to the defendants. The averment that the defendants have sufficient means to pay the amount also denied by the defendants and has also submitted that they does not possess adequate means to pay the amount claimed and hence the defendants payed to dismiss the OA with costs.

6. During the pendency of the OA, the applicant has filed IA.No.707/2012 and IA.No.3076/2014 seeking for an attachment of the IA schedule properties. The Tribunal vide order dated 02.03.2012 granted conditional attachment of schedule properties in IA.No.707/2012 and same was made absolute on 04.10.2012. Further 09.04.2015the Tribunal granted attachment of schedule properties in IA.No.3076/2014 and same were duly communicated to the SRO/VO.

7. On perusal of the judgement dated 24.07.2010 passed by the Hon’ble II Addl. Sub Judge, Thiruvanthapuram it emanates that the defendants had put their appearance in OS 506/2009 though their counsel V.K.Ashok. How ever, they are placed exparte by the court and since they did not contest the matter after filing vakalat the OS came to be decreed against them setting them ex parte.

8. In the instant case, the defendants have filed written statement denying the loan and loan documents which is unsustainable. The defendants if aggrieved by the order of the sub court, ought to have preferred an appeal. Since there is no appeal on record against an ex parte judgement, the defendants are precluded to take such contentions in the OA, which does not merit any consideration from this tribunal.

9. On examination of the records and on hearing the submissions of the applicant counsel , the tribunal is of the view that the applicant bank is entitled to get a final order directing to issue Recovery Certificate on the following lines:- “In the result, it is ordered to issue Recovery Certificate in terms of the decree dated 24.07.2010 in OS No.506 of 2009 of the Sub Court, Thiruvananthapuram for recovery and payment to the applicant bank,the sum of Rs.17,73,619/- (Rupees Seventeen Lakhs Seventy Three thousand Six hundred and Nineteen only) together with future interest on the decreed amount of Rs.9,08,794/- [Rupees Nine Lakhs Eight Thousand Seven Hundred and Ninety Four only] @19.5% per annum from 01.03.2012 till realization from the defendants and by sale of properties attached as per order in IA.No.707/2012 and IA.No.3076/2014;

8. The attached schedule properties shown in IA.No.707/2012 and IA.No.3076/2014 shall become part and parcel of the final order of the OA and Recovery Certificate of present OA;

9. 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 the steno, transcribed by her, corrected by me and then pronounced in the open court on this the 23rd day of August, 2018]

(S.V.GOWRAMMA)

ATTACHMENT SCHEDULE PROPERTY IN IA NO.707/2012

ITEM No. 1

District

: Thiruvananthapuram

Sub District : Chalai

Taluk

: Thiruvananthapuram

Village

: Thycaud

Muri

: Pazhavangadi

Survey No. :

Extent

: 1/6th Undivided share

in 14cents of land with 3207

sq ft in 4th floor of building

bearing TC No.25/1079 at

Aristo Road Thampanoor,

Trivandrum

Limit

: Corporation

Inam

: Pandaravaka

DESCRIPTION OF PROPERTY

All rights over the 4th floor of above property in building No. TC

at Aristo Road, Thampanoor, Trivandurm with 1/6th undivided share in 14 cents of lamd in Sy.No.1165 situated in Thycaud Village, Trivandrum Taluk as per Sale Deed 825/95 of SRO Chalai with all improvements therein.

BOUNDARIES

East : Road

North : Alanattupuraidom

West : Road

South : Kannettupuraidom

ITEM No. 2

District

: Thiruvananthapuram

Sub District : Chalai

Taluk

: Thiruvananthapuram

Village

: Thycaud

Muri

: Pazhavangadi

Survey No. :

Extent

: 1/6th Undivided share

in 14cents of land with 3207

sq ft in 3rd floor of building

bearing TC No.25/1079 at

Aristo Road Thampanoor,

Trivandrum

Limit

: Corporation

Inam

: Pandaravaka

DESCRIPTION OF PROPERTY

All rights over the 3rd floor of above property in building No. TC

at Aristo Road, Thampanoor, Trivandurm with 1/6th undivided share in 14 cents of lamd in Sy.No.1165 situated in Thycaud Village, Trivandrum Taluk as per Sale Deed 824/95 of SRO Chalai with all improvements therein.

BOUNDARIES

East : Road

North : Alanattupuraidom

West : Road

South : Kannettupuraidom

ATTACHMENT SCHEDULE PROPERTY IN IA NO.3076/2014

ITEM No. 1

District

: Kasaragod

Sub District : Udma

Taluk

: Kasaragod

Village

: Thekkil

Frika

: Kasaragod

Re-Survey No. :

Extent

: 12.14 Ares (30cents)

Right

: Janmam

of 12.14 Ares (30 Cents) in Re-Survey No.11/1 of Thekkil Village, Kasaragod Taluk with all improvements therein covered under document no:448/94 of SRO Udma.

BOUNDARIES

East : Property of Basheer

North : Property of T.B.Abdul Rehman

West : Property of Mohammed Sherif

South : Property of Muhammedkunju

ITEM No. 2

District

: Kasaragod

Sub District : Udma

Taluk

: Kasaragod

Village

: Thekkil

Frika

: Kasaragod

Re-Survey No. :

Extent

: 54.23 Ares (1.34Acres)

Right

: Janmam

of 54.23Ares (1.34 Acres) in Re-Survey No.10/5 of Thekkil Village, Kasaragod Taluk with all improvements therein covered under document no:989 of SRO Udma.

BOUNDARIES

East : Property in ReSy.No 10/7

North : Property in ReSy.No 10/2

West : Property in ReSy.No 10/3 &

South : Property in ReSy.No 11

ITEM No. 3

District

: Kasaragod

Sub District : Kasaragod

Taluk

: Kasaragod

Village

: Peumbala

Frika

: Kasaragod

Re-Survey No. :

Extent

: 40.47 Ares (1Acre)

Right

: Janmam

of 40.47 Ares (1Acre) in Re-Survey No.168/1 of Peumbala Village, Kasaragod Taluk with all improvements therein covered under document no:989 of SRO Udma.

BOUNDARIES

East : Property in ReSy.No 168/4

North : Property having same sub-

division

West : Property in ReSy.No 166

South : Property in ReSy.No 169/1

[PRESIDING OFFICER]

IN THE DEBTS RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM Dated this the 23rdday of August, 2018 Present: S.V.Gowramma, B.A., LL.B Presiding Officer T.A No: 275/2016 [OA No:98/2012] Between The South Indian Bank Ltd., Thiruvananthapuram …Applicant

And Mohammed Sherif, & another …Defendants

FINAL ORDER