INDIAN OVERSEAS BANK vs SHAILA SABUKHAN on 27 July 2017

FINAL ORDER

This 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.14,45,281/- with further interest thereon @14.40% per annum with half yearly rests from the defendant from 22.09.2015 till realization and by sale of ‘A’ and ‘B’ schedule properties. BRIEF FACTS OF THE CASE

1. The applicant is a Nationalized Bank constituted under the Banking companies (Acquisition of Transfer of Undertaking Act-Act 5 of 1970 having its Central office at 763, Anna Salai, Chennai-6000

002 with Regional Offices and branches at various places in India including a branch at Pandalam, Pathanamthitta. The Senior Manager and Principal Officer is competent to verify and authorized to sign the pleadings and take legal actions representing the applicant bank.

2. The defendant had approached the applicant bank in August, 2012 seeking to avail an agricultural term loan for the purchase of land for agricultural purpose. Accordingly, the applicant sanctioned a term loan of Rs.10 lakhs to the defendant as per credit sanction advice dated 11.08.2012 under Bhoomi Lakshmi Scheme. The defendant had executed security documents on 16.08.2012. The aforesaid facility was secured by hypothecation of standing crop and future crops in 8.26 Ares of land in Re.Sy.No.358/4-2-2 of Palamel Village, Mavelikara Taluk and further collaterally secured by mortgage of immoveable property by deposit of title deeds in respect of an extent of 8.26 Ares of land in Re.Sy.No.358/4-2-2 of Palamel Village, Mavelikara Taluk covered under sale deed No.1909/2012, Nooranad SRO belonging to the defendant. The original of the aforesaid sale deed was deposited with the applicant bank on 08.04.2013 and the defendant executed a confirmation letter dated 09.04.2013.

3. It is submitted by the applicant that the defendant had executed revival letter dated 19.06.2015 acknowledging the liability under the term loan account. Despite the undertaking made by the defendant to repay Rs.10 lakhs in 20 equal installments of Rs.85,450/- commencing from 30.09.2014, he failed to do so. Consequently, the account was classified as NPA on 30.06.2015. The applicant through its Advocate issued a notice dated 28.01.2015 to the defendant demanding payment of the entire amount outstanding due under the loan account. Despite receipt of the notice, the defendant failed to remit the amount. It is stated that as per the statement of account maintained by the bank, they are entitled to recover a sum of Rs.14,45,281/- under the subject loan account.

4. The applicant bank has taken out the summons as directed by the Tribunal and has filed the proof of service on 24.11.2015. The summons issued to the defendants is duly served and defendant has filed Vakalath on 01.01.2016, but has not filed any written statement to counter the averments contained in the OA. Though Vakalath is filed there is no representation for the defendants nor the defendant appeared and she chose to remain absent and hence the defendant was declared ex-parte on 26.09.2016.

5. The evidence on the side of the applicant bank consists of the proof affidavit of its Senior Manager and Principal Officer, AW1 and Exts.A1 to A11.

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 applicant bank is adduced by its Senior Manager and Principal Officer AW1. The affidavit by way of evidence 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 defendant in spite of filing Vakalath to be intentional without any bonafide reasons and it appears that she remained absent as she 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 cost as sought by the applicant bank.

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 a final order on the following lines:-

ORDER

(a) The OA is allowed with costs. The defendant is directed to pay a sum of Rs.14,45,281/- (Rupees Fourteen lakhs forty five thousand two hundred and eight one only) with further interest on the sum of Rs.14,38,829/- (Rupees Fourteen lakhs thirty eight thousand eight hundred and twenty nine only) @12.40% per annum with half yearly rests plus penal interest @2% per annum from 22.09.2015 to 27.09.2015 and thereafter @12.40% per annum with half yearly rests from 28.09.2015 till realization and also its costs from the defendant; (b) In the event of failure of the defendant to pay the OA claim amount, the bank is at liberty to sell the OA ‘A’ and ‘B’ schedule properties of the defendant and the sale proceeds be appropriated towards the OA claim amount as required under law;

(c) In the event of non-realization of the OA claim amount despite the sale of the mortgaged properties referred above, the bank is at liberty to proceed against the person and other properties of the defendant, as required under law; (d) Schedule ‘A’ and ‘B’ properties shown in the OA shall become part and parcel of the final order of the OA and Recovery Certificate of present OA; (e) The applicant bank shall file memo of costs within seven days from the date of this final order; (f) Recovery Certificate shall be drawn up and issued to the Recovery Officer in terms of the final order.

9. 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 PS, transcribed by her, corrected by me and then pronounced in the open court on this the 27th day of July, 2017]

(S.V.GOWRAMMA) Presiding Officer

A P P E N D I X

Witness for Applicant: AW1: George Thomas, Senior Manager of the applicant bank.

Witness for Defendant(s): Nil

Exhibits on the part of the applicant

Ext.No. Date Particulars of documents

A1 11.08.2012 Credit sanctions advice issued by the applicant sanctioning agricultural term loan of Rs.10 lakhs to the defendant. A2 16.08.2012 Demand promissory notice for Rs.10 lakhs executed by the defendant in favour of the applicant bank. A3 16.08.2012 Letter executed by the defendant in favour of the applicant bank. A4 16.08.2012 Letter of undertaking of installments executed by the defendant in favour of the applicant bank. A5 16.08.2012 Letter of authorization executed by the defendant in favour of the applicant bank. A6

16.08.2012 Letter of hypothecation (agricultural advances) executed by the defendant in favour of the applicant bank. A7

17.08.2012 Sale Deed No.1909/2012 of Nooranad SRO. A8

09.04.2013 Letter executed by the defendant confirming the deposit of title deed with the applicant bank. A9

28.01.2015 Office copy of lawyer notice issued to the defendant calling upon him to pay the amount due. A9(a)

Acknowledgement card evidencing the receipt of lawyer notice. A10 19.06.2015 Revival letter. A11

The computerized statement of account in respect of the agricultural term loan for the period from 16.08.2012 to 21.09.2015.

Defendant’s Exhibits – Nil (PRESIDING OFFICER)

DEBTS RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM

Dated this the 27th day of July, 2017

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

Between Indian Overseas Bank

…Applicant Pandalam Branch. And Shaila Sabukhan …Defendant

FINAL ORDER