ICICI BANK LIMITED vs BABY KUTTY K. SAMUEL on 16 July 2018

**FINAL ORDER**

This Original Application is filed on 07.09.2015 under Section 19(1) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 for recovery of a sum of Rs.53,26,761.97/- [Rupees Fifty Two lakhs fifty nine thousand seven hundred and eighty two only] in the Term loan account with interest @ 15.95% per annum from 07.09.2015 till realization and from the assets of the defendants and personally from the defendants.

**BRIEF FACTS OF THE CASE**

1 The applicant bank is a Company incorporated under the Companies Act 1956 and licensed Bank under the Banking Regulation act, 1949, having its registered Office at 'Land Mark', Race Course Circle Alkapuri, Baroda and having its zonal office at Emgee Square, Near Padma Junction, MG Road Ernakulam. The applicant bank is represented by its Debt Service Manager being one of the Principal Officers and the Power of Attorney Holder of the bank who is competent to sign and verify the Original Application and to represent the bank in this proceeding.

2 It is the case of the applicant that the defendant approached the applicant for a Home loan and top up loan. The defendant executed an application for home loan and top up. After analyzing the credit worthiness of the defendants, the bank sanctioned loan for Rs.6,30,000/- and Rs.10,17,797/- as per the loan agreement dated 22.01.2007. The defendants agreed to the terms and conditions applicable to the loan with interest rate executed their signatures.

3 It is submitted that the property having an extent of 6.10 Acres in Re.Sy.No.48/11 (Old Sy.No.131/2-D) in Puliyoor Village, Changanoor Taluk, Alappuhzha District is owned by the 1^st defendant vide sale deed No2291/2005 of Changanoor Sub Registry dated 22.08.2005. The defendants has produced the land tax receipt No.2675472 dated 05.05.2006 issued by the Village Office, Puliyoor, possession certificate No.240/2006 dated 25.07.2006, location sketch dated 24.07.2006 issued by the Village office along with the encumbrance certificate No.2675/2005 dated 06.09.2005 for the period from 01.01.1990 to 05.09.2005 and encumbrance certificate No.1923/2006 for period from 01.08.2005 to 22.07.2006 issued by Chenganoor Sub Registry Office is also executed by the defendant. The defendants had mortgaged the above said property for the financial facility granted by the applicant bank with an intention to create an equitable mortgage and signed a declaration dated 22.01.2007.

4. It is submitted by the applicant bank that defendants were irregular in repayment towards the credit facilities and defaulted in payment of monthly installments and violated the terms and conditions of the loan agreement. Despite the repeated demands and personal follow ups from the bank the defendants failed to regularize the outstanding dues. As the defendants defaulted in repayment of the loan facility the applicant bank declared the loan account as NPA and had sent notice dated 16.07.2015 through their lawyer to the defendants intimating the termination of the loan and calling up on the defendants to pay the total outstanding amount in the loan accounts No.LBKOM00001483155 and LBKOM00001483157. The notice sent to the defendants were returned to the sender as "Addressee left".

5. It is further submitted that as per the statement of account maintained with the applicant bank in the loan account No. LBKOM00001483155 and LBKOM00001483157 an amount of Rs.53,26,761.97 is due from the defendant as on 11.07.2015

and hence the applicant was constrained to file this original application for recovery of the said amount.

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 10.01.2017. The summons issued to the defendants are duly served and service of summons is completed as per the regulations. There was no appearance for the defendants nor defendants were represented by any counsel and hence defendants were placed exparte on 25.05.2017.

7. The evidence on the side of the applicant bank consists of the proof affidavit of its Debt Service Manager, duly authorized Power of Attorney and Principal officer of the bank, AW1 and Exhibits A1 to A28 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 its Debt Service Manager, duly authorized Power of Attorney and Principal officer of the bank AW1, reiterates the facts pleaded in the OA and the affidavit is corroborated by the above referred Exhibits A1 to A28 which clearly establishes the case of the applicant bank to allow the present OA. Even otherwise the whole case of the applicant bank is based on the documentary evidence and the witness has duly proved all the documents exhibited by him. It is quite evident from the documents placed on record by the applicant bank that defendants have availed the financial assistance from the respondent bank and have failed to repay the dues of the respondent bank. Added to this, it appears that the defendants did not contest the matter as they admitted the entire case of the applicant as sought for in the 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 defendants are jointly and severally directed to pay a sum of Rs.53,26,761.97 (Rupees Fifty three lakhs Twenty Six thousand Seven Hundred Sixty One and Ninety Seven Paise only) together with future interest compounded monthly on sum of @11.60% per annum from 07.09.2015 till realization and also its costs from the defendant;

- (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 defendant, 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 16^th day of July, 2018]*

A P P E N D I X

Witness for Applicant:

AW1: Mr. Rajesh Mathew, Debt Service Manager of the applicant bank.

Witness for Defendant(s): Nil

Exhibits on the part of the applicant

<table border="1"><thead><tr><th><u>Ext.No</u></th><th><u>Date</u></th><th><u>Particulars of documents</u></th></tr></thead><tbody><tr><td>A1</td><td>-</td><td>Home loan application of Home loan</td></tr><tr><td>A2</td><td>-</td><td>Top up loan application</td></tr><tr><td>A3</td><td>22.01.2007</td><td>Loan Agreement</td></tr><tr><td>A4</td><td>22.01.2007</td><td>Terms and conditions</td></tr><tr><td>A5</td><td>22.08.2005</td><td>Sale Deed No.2291/2005 Chenganoor Sub Registry Office</td></tr><tr><td>A6</td><td>05.05.2006</td><td>Land tax receipt No.2675472, issued by the Village Office Puliyoor</td></tr><tr><td>A7</td><td>25.07.2006</td><td>Possession certificate No.240/2006, issued by the Village Officer, Puliyoor.</td></tr><tr><td>A8</td><td>24.07.2006</td><td>Location sketch issued by the Village Officer, Puliyoor</td></tr><tr><td>A9</td><td>06.09.2005</td><td>The encumbrance certificate No.2675/2005 for the period from 01.01.1990 to 05.09.2005, issued by the Chenganoor Sub Registry Office</td></tr><tr><td>A10</td><td>25.07.2006</td><td>The encumbrance certificate No1923/2006 for the period from 01.08.2005 to 22.07.2006 issued by the Chenganoor Sub Registry office</td></tr><tr><td>A11</td><td>22.01.2007</td><td>Declaration</td></tr><tr><td>A12</td><td>16.07.2015</td><td>Lawyer Notice with respect to A/c No.LBKOM00001483155</td></tr><tr><td>A13</td><td>-</td><td>Postal receipt evidencing issue of notice to 1^st defendant with respect to A/c.No.LBKOM00001483155</td></tr><tr><td>A14</td><td>-</td><td>Postal receipt evidencing issue of notice to 2^nd defendant with respect to A/c.No.LBKOM00001483155</td></tr><tr><td>A15</td><td>-</td><td>Returned postal article of the 1^st defendant with respect to A/c No. LBKOM00001483155</td></tr><tr><td>A16</td><td>-</td><td>Returned postal article of the 2^nd defendant with respect to A/c No. LBKOM00001483155</td></tr><tr><td>A17</td><td>16.07.2015</td><td>Lawyer notice with respect to A/c No. LBKOM00001483157</td></tr><tr><td>A18</td><td>-</td><td>Postal receipt evidencing issue of notice to 1^st defendant with respect to A/c.No.LBKOM00001483157</td></tr><tr><td>A19</td><td>-</td><td>Postal receipt evidencing issue of notice to 2^nd defendant with respect to A/c.No.LBKOM00001483157</td></tr><tr><td>A20</td><td>-</td><td>Returned postal article of the 1^st defendant with respect to A/c No. LBKOM00001483157</td></tr><tr><td>A21</td><td>-</td><td>Returned postal article of the 2^nd defendant with respect</td></tr></tbody></table>

<table border="1"> <tr> <td></td> <td></td> <td>to A/c No. LBKOM00001483157</td> </tr> <tr> <td>A22</td> <td>-</td> <td>Account statement along with IT certificate with respect to A/c No. LBKOM00001483155</td> </tr> <tr> <td>A23</td> <td>-</td> <td>Statement regarding the future principal with respect to A/c No LBKOM00001483155</td> </tr> <tr> <td>A24</td> <td>-</td> <td>Statement of periodic rate of interest with respect to A/c No LBKOM00001483155</td> </tr> <tr> <td>A25</td> <td>-</td> <td>Account statement along with IT certificate with respect to A/c No LBKOM00001483157</td> </tr> <tr> <td>A26</td> <td>-</td> <td>Statement regarding the future principal with respect to A/c No. LBKOM00001483157</td> </tr> <tr> <td>A27</td> <td>-</td> <td>Statement of periodic rate of interest with respect to A/c No LBKOM00001483157</td> </tr> <tr> <td>A28</td> <td>-</td> <td>The Statement regarding the outstanding amount in A/c No. LBKOM00001483155 &amp; LBKOM00001483157</td> </tr> </table>

Defendant's Exhibits - Nil

B SCHEDULE

District	:	Alappuzha
Sub District	:	Chenganoor
Taluk	:	Chenganoor
Firka	:	Mannar
Village	:	Puliyoor
Desom/Muri	:	Perisseri
Old Sy.No.	:	131/2-D
Resurvey No.	:	48/11-1
Extent	:	6.10 Ares

DESCRIPTION OF PROPERTY

All the part and parcel of the property having an extent of 6.10 Ares in Re.Sy.No 48/11-1 (Old Sy.No. 131/2-D) in Puliyoor Village, Chenganoor Taluk, Alappuzha District covered by Sale Deed No. 2291/2005 Chenganoor Sub Registry Office dated 22.0/.2005.

BOUNDARIES

North	:	Property sold
South	:	Property of Ariyannoor Kuzhi
East	:	Vazhi
West	:	Property of Ariyannoor Kuzhi


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

Dated this the 16^th day of July, 2018

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

TA. 1276/2016 [OA.No.402 / 2015]

**Between**

M/s ICICI Bank Ltd. M.G.Road, Kochi

...Applicant

**And**

Baby Kutty K.Samuel, & another

...Defendants

**FINAL ORDER**