UNION BANK OF INDIA vs SANTHOSH KUMAR R.S on 19 June 2018

FINAL ORDER

This Original Application is filed by the applicant on 17.03.2014 under Section 19(1) of the Recovery of Debts due to Banks and Financial Institutions Act, for recovery of a sum of Rs.11,31,281.50 from the defendants jointly and severally together with future interest @ 11.75% per annum with monthly rests from 14.02.2014 till realization and by sale of OA schedule property.

BRIEF FACTS OF THE CASE

1. The applicant is a body corporate (Acquisition and Transfer of Undertaking) Act 1970 having its head office at 239, Vidhan Bhavan Margh, Mumbai -21 having branches all over India and one such branch is situated at Kuttichal, Thiruvananthapuram District, Kerala State. The Senior Manager being the Principal Officer and power of attorney holder is entitled to sign and verify this application and represent the bank in this proceedings.

2. The applicant declares that the application is presented within the period limitation prescribed under Section 24 of the RDBFI Act 1993.

3. It is the case of the applicant that the defendants had approached and availed a housing loan of Rs.8,00,000/- from the applicant bank on 05.01.2007 through Housing Loan Account No.403006510570496.

4. As a security for credit facility defendants had executed a demand promissory note for Rs.8,00,000/- undertaking to repay the entire loan amount and interest on demand by the applicant and also executed a agreement for housing loan agreeing to abide the terms and conditions of sanction. In addition to the above 1st defendant had created a equitable mortgage by deposited Title Deed No.1840/2006 of SRO, Kattakkada dated 07.08.2006 in respect of the property schedule to the OA and also executed memorandum of deposit of title deed.

5. It is contended that the defendant did not repay the amount and interest due in the loan account and the applicant sent various letters and reminders including personal requests to defendant to repay the outstanding amounts in the account and regularize. In spite of repeated request, the defendants did to regularize the account.

6. The 1st defendant on 31.08.2012 executed a revival letter in favour of the applicant and requested 3 months’ time to pay the debt and further requested that no legal action should be initiated against him. But the 1st defendant did not make any effort to repay the outstanding amount, hence the applicant issued a lawyer‘s notice dated 21.02.2014 calling upon the defendants to repay the entire outstanding amount. But the defendants were deliberately avoided the legal notice and both of them are not come forwarded to liquidate the liability.

7. As per the statement of account maintained by the applicant bank an amount of Rs.11,31,281.50/- is due under the housing loan account of the defendants. Hence, the applicant is constrained to file this OA for the recovery of the entire outstanding amount against the defendants.

8. After filing of the OA, the applicant bank has taken out the summons on the defendants as directed by the Tribunal and filed the proof of services dated 06.10.2014. The summons issued to the defendants was returned with an endorsement ‘left”. Hence, the applicant has taken out summons as directed by the tribunal through substitute service by way of paper publication in Mathrubhumi Daily dated 17.03.2016 and service of summons was completed as per the regulations. Inspite of service of summons, defendants neither appeared nor were they represented and thus they were declared exparte on 10.04.2017.

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

10. 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:-

11. The evidence of the applicant bank by way of proof affidavit of Branch 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 defendants’ inspite of service of summons appears to be intentional without any bonafide reasons and it appears that they remained absent and 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.

12. 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 defendants are jointly and severally directed to pay the applicant bank a sum of Rs.11,31,281.50 (Rupees Eleven lakhs Thirty one thousand two hundred eight one and fifty paise only) with future interest on the sum of Rs.11,28,474.50 [Rupees Eleven lakhs twenty eight thousand four hundred seventy four and paise fifty only) [Rs.11,31,281.50 – Penal Interest of Rs.2,807] @ 9.75% per annum with monthly rests from 14.02.2014 till realization and also its costs from the defendants;

(c) In the event of failure of the defendants to pay the OA claim amount, the bank is at liberty to sell the OA schedule property of the defendants 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 property referred above, the bank is at liberty to proceed against the other properties of the defendants, as required under law; (e) Schedule property 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.

13. 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 19th day of June, 2018]

(S.V.GOWRAMMA) Presiding Officer

A P P E N D I X

Witness for Applicant: AW1: T.Mohanan, Branch Manager and Principal Officer of the applicant bank Witness for Defendants: Nil

Exhibits on the part of the applicant

Ext.No. Date Particulars of documents

A1 05.01.2007 Demand Promissory Note executed by the 1st and 2nd defendant. A2 05.01.2007 Housing Loan agreement executed by the 1st and 2nd defendant in favour of the applicant. A3 05.01.2007 Letter of Undertaking executed by the 1st and 2nd defendant in favour of the applicant. A4 07.08.2006 Title Deed No.1840/2006 of SRO, Kattakkada. A5 08.11.2006 Memorandum of deposit of title deed executed by the 1st defendant. A6

Request letter given by the 1st defendant requesting the applicant to give the receipt for the title deed deposited. A7 31.08.2012 Letter issued by the 1st defendant to the applicant. A8 (A)&(B) 21.02.2014 Postal receipts evidencing the issuance of lawyer notice (2 in numbers). A9

Returned lawyer’s notice of the 1st defendant. A10

Returned lawyer’s notice of the 2nd defendant. A11

Certified copy of the Housing Loan A/c.No.403006510570496 maintained by the applicant bank in the name of the defendants.

Defendants Exhibits – Nil

(PRESIDING OFFICER)

SCHEDULE (Covered by Sale Deed No.1840/2006 owned by the 1st defendant)

District

: Thiruvananthapuram

Sub District : Kattakkada

Taluk

: Nedumangad

Village

: Veeranakavu

Firka

: Aryanadu

Panchayath : Poovachal

Muri

: Kuzhakkadu

Survey No. :

Resurvey No. : 46/6/4

Block No.

:

Extent

: 1.62 Ares (4 cents) Boundary as per location sketch No.5571/06 issued by Veeranakavu Village Office North : Road.

South : Property of Mohanan East : Property of Satheesan Nair West : Property of Vijayan Boundary as per Sale Deed No.1840/2006 registered before Kattakkada Sub Registrar Office.

North : Road.

South : Property of Mohanan Nair. East : Property of Satheesan Nair West : Property of Vijayan

DESCRIPTION 1.62 Ares in Resurvey No.46/6/4 of Veeranakavu Village with all improvements thereon particularly described in the schedule of Sale Deed No.1840/2006 of Kattakkada Sub Registry owned by 1st defendant in this OA.

[PRESIDING OFFICER]

IN DEBTS RECOVERY TRIBUNAL-II, KERALA AT ERNAKULAM

Dated this the 19th day of June, 2018

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

T.A.No.850/2016 (OA.No.160/2014) Between Union Bank of India, Kuttichal Branch. …Applicant And Santhosh Kumar.R.S & another …Defendants

FINAL ORDER