UNION BANK OF INDIA vs P.R. AYYAPPAN on 26 July 2018

**FINAL ORDER**

The Original Application has been filed under Section 31A of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the Act') by the applicant herein, the applicant is the decree holder in OS No.17/2008 of the Sub Court, Kattappana for issuing Recovery Certificate in terms of the decree dated 20.03.2010 for recovery of the amount due thereunder.

**BRIEF FACTS OF THE CASE**

1. The applicant is a body corporate duly constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its Head Office at 239, Vidhan Bhavan Margh, Mumbai-21

and various branches among other places including one at Vandiperiyar Branch. The Branch Manager of Vandiperiyar Branch being the principal officer is entitled to sign and verify this application and represent the bank in this proceedings.

2. The applicant had filed OS.No.17/2008 on 10.01.2008 before the Sub Judge, Kattappana for realization of an amount of Rs.6,89,437/- with interest and costs. The suit was decreed with costs on 20.03.2010. As per the decree the applicant is allowed to realize an amount of Rs.6,89,437/- with interest @ 14% per annum from the date of suit till date of judgment and thereafter with 11.75% per annum till realization and costs from the defendants personally and their assets and also from the decree schedule properties. As on 15.01.2014 an amount of Rs.12,98,209 is due from the defendant.

3. The defendant has filed written statement on 27.07.2015 contending that the original application is not maintainable either in law or on facts. The original application is barred by limitation. The interest calculated in the original application is not correct. The 'B' schedule property in the judgment and original application has not been mortgaged by the defendant to the applicant. Therefore, the applicant is not entitled to proceed against the 'B' schedule property. Further it is contended that no document has been executed by the defendant in respect of 'B' schedule property to the applicant bank. It is further contended that after availing loan, the Branch Manager of the applicant bank came to the resident of the defendant when the defendant was not in the station and request to give the title deed of the 'B' schedule property from the wife of the defendant, since the wife is illiterate and ignorant Tamil lady she give the original title deed in respect of 'B' schedule property to the Branch Manager of the applicant and now they are misusing the same. Therefore, the applicant bank has no right to proceed against the 'B' schedule property and there is no merit in the original application and the same is liable to be dismissed.

4. Heard submissions 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?***

Findings:

**Point No.1: In affirmative**

**Point No.2: As per order**

**Reasons:-**

5. The primary contention raised by the defendant is that the original application is barred by limitation as the present OA is filed on 07.03.2014 based on the decree passed by the Civil court on 20.03.2010. Yet another contention raised by the defendant is that 'B' schedule property in the judgment and original application has not been mortgaged by the defendant to the applicant. Therefore, the applicant is not entitled to proceed against the 'B' schedule property as no document has been executed by the defendant in respect of 'B' schedule property.

6. On perusal of the judgement and decree, it is discernible that the 'B' schedule property is mortgaged favouring the applicant bank vide memorandum of deposit of title deeds which are marked as Exhibit A5 and Exhibit A6 respectively in O.S.17/2008 and further contention that the present OA is barred by limitation is also not sustainable as the OA is filed in furtherance to the judgement and decree which is within the period of 12 years. As the scope of this OA is only to issue the Recovery Certificate in terms of the decree. Further the decree awarded by the Sub-Court had become final as there is no challenge to the decree. In view of the above discussion the contentions raised by the defendant is not sustainable.

7. As per the calculation shown in the OA, the amount claimed as due under the decree on hand as on 07.03.2014, the date of the OA exceeds Rs.10 lakhs and in view of S.19(22) r/w Ss.1(4), 17(1) and 18 of the Act, jurisdiction of civil court to execute the decree is barred, and it is the Tribunal which alone has jurisdiction to recover the amount due thereunder and, the Tribunal, therefore, has to issue Recovery Certificate for recovery of the amount due under the decree.

8. The applicant bank, therefore, is entitled to get a final order directing the issuance of Recovery Certificate on the following lines: - "In the result, it is ordered to issue Recovery Certificate in terms of the decree dated 20.03.2010 in OS No.17/2008 before the Sub

Court, Kattappana, for recovery and payment to the applicant bank, the sum of Rs.12,98,209/- (Rupees twelve lakhs ninety eight thousand two hundred and nine only) with further interest on the sum of Rs.6,89,437/- (Rupees Six lakhs eight nine thousand four hundred and thirty seven only) @ 11.75% per annum from 07.03.2014 to till realisation and also the costs of the applicant bank in this proceedings from the defendant and also charged upon 'A' and 'B' decree schedule properties."

9. The schedule to the decree shall be appended to this order.

10. 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 him, corrected by me and then pronounced in the open court on this the 26^th day of July, 2018]*

6TA.No.42/2017 (OA.No.144/2014)**APPENDIX**

Witness for Applicant: Nil

Witness for Defendant(s): Nil

**Document on the part of the applicant**

Document No.	Date	Particulars of documents
Doc.1	20.03.2010	Certified Copy of judgment in OS.No.17/2008 passed by the Sub Court, Kattappana.
Doc.2	20.03.2010	Certified Copy of decree in OS.No.17/2008 passed by the Sub Court, Kattappana.

7TA.No.42/2017 (OA.No.144/2014)**DECREE SCHEDULE PROPERTY****'A' schedule**

District : Idukki Sub District : Peermade Taluk : Peermade Village : Peermade Panchayath : Vandiperiyar Sy.No. : 184/1A Extent : 90 cents Thandapperu No. : 7321 Tennuer : Pandaravaka

**BOUNDARIES**

East : Public Road South : Public Road North : Property of Raju West : Property of Mariamma

**DESCRIPTION**

An extent of 90 cents of patta land in Sy.No.184/1A in Peermade Village with all improvements therein within the boundaries given above.

**'B' schedule**

District : Idukki Sub District : Udumbanchola


Taluk : Udumbanchola Village : Kalkoonthal Panchayath : Nedumkandom Sy.No. : 190/1/2 Extent : 04.04 Ares (10 cents) Thandapperu No. : 12845 Tennuer : Pandaravaka

BOUNDARIES

East : Property of Athirampuzha South : Property of Chellanthara West : Property of Sheeba Monichan North : Property of Sheeba Monichan

DESCRIPTION

An extent of 04.04 Ares (10 cents) in Sy.No.190/1/2 in Kalkoonthal Village with all improvements therein within the boundaries given above.

**IN THE DEBTS RECOVERY TRIBUNAL-II, KERALA AT ERNAKULAM**

Dated this the 26^th day of July, 2018

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

TA.No.42/2017 (OA.No.144/2014)

**Between**

Union Bank of India, Vandiperiyar Branch.

...Applicant

**And**

P.R.Ayyappan

...Defendant

**FINAL ORDER**