PUNJAB NATIONAL BANK vs FAHAD K. JAMAL on 11 May 2017

FINAL ORDER

The present Original application is filed by the applicant bank under Sec 19 of the Recovery of Debts Due to Bank and Financial Institutions, Act, 1993, against defendant seeking the order to issue Recovery Certificate in favour of the applicant bank with a direction to the defendant to repay a sum of Rs 26,13,789.21 [Rupees Twenty six Lakhs thirteen Thousand Seven Hundred Eighty Nine and Paise Twenty one only] as on 29.02.2016 with interest @ 9.6%p.a plus 2% penal interest from 29.02.2016 till the date of realization and other reliefs and by sale of OA schedule property.

BRIEF FACTS OF THE CASE:-

1. The defendant is an engineer by professional had approached the applicant bank for a housing loan facility for a sum of Rs.20,00,000/- [rupees Twenty Lakhs only]. The applicant bank after considering his repayment capacity sanctioned housing loan facility for a sum of Rs.20,00,000/- [Rupees Twenty Lakhs only] on 13.04.2013 for construction of a new house vide sanction letter dated 13.04.2013.

2. The defendant agreeing to the terms conditions of repayment has executed an agreement of housing loan to repay the loan amount in 240 equal monthly installments of Rs.20,130/- each including the moratorium period of 18 months.

3. The housing loan was secured by the mortgage the property having an extent of 2.90 ares in Sy.No.1003/2 if Killannur Village, Thrissur Taluk, covered by Sale Deed No.1722/2013 of Thrissur Sub Registry favoring the applicant bank which is described in Schedule “A’ in the OA. Further the title deeds of schedule A property is deposited by deposit of title deeds with an intention to create equitable mortgage on 13.04.2013. The defendant has confirmed the deposit of title deeds by executing the letter evidencing deposit of tile deeds on 15.04.2013 along with prior title deeds and with rectification deed No.2588/2013.

4. The applicant has disbursed the loan amount in installments, after availing the loan and after the expiry of moratorium period, the defendant failed to commence the repayment and during the inspections by the officials of the applicants it came to the knowledge that no construction took place.

5. The defendant did not adhere to the terms and conditions of the sanction from the beginning and the repayment fell overdue. The applicant issued notices to defendant to repay the loan amount, since there was no response, the bank was constrained to issue lawyer notice on 24.05.2014 calling upon the defendant to clear the entire liability, but the defendant failed to regularize/clear the housing loan account and the account was classified as NPA on 31.03.2014 and the loan was recalled vide recall notice dated 22.09.2014.

6. After the classification of the account as NPA, the applicant initiated SARFAESI proceedings by issuing 13[2] notice. The defendant did not settle the liability and the bank proceeded further and has taken symbolic possession and put the property to sale which did not materialize for want of bidder. Therefore the applicant bank has filed the present OA for recovery of Rs 26,13,789.21 [Rupees Twenty six Lakhs thirteen Thousand Seven Hundred Eighty Nine and Paise Twenty one only] as on 29.02.2016 with interest @ 9.6% p.a till the date of realization.

7. After filing of the OA, summons was issued to defendant as directed by the tribunal. Since the summons could not be served on defendant, the applicant has taken out substituted service in Mathrubhumi daily on 15.06.2016 on the defendant as directed by the tribunal and name of defendant was called out. Inspite of substituted service the defendant did not appear nor filed Vakalath and hence he was place ex-parte on 14.03.2017.

8. The evidence of the bank is adduced by filing the affidavit of its Senior Manager along with documents and the same came to be considered as evidence of AW1 and documents came to be marked as Exts.A1 to A9 and closed their evidence.

9. 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:-

10. The evidence of Senior Manager 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 A9 which clearly establishes the case of the applicant bank to allow the present OA. Added to this, the absence of defendant in spite of service appears to be intentional without any bono fide reasons and it appears that he remained absent as he 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.

O R D E R

11. The OA stands allowed with cost. The defendant is directed to pay to the applicant bank a sum of Rs 26,13,789.21 [Rupees Twenty six Lakhs thirteen Thousand Seven Hundred Eighty Nine and Paise Twenty one only] as on 29.02.2016 together with cost and interest @ 9.6% p.a from the date of filing the OA till the date of realization.

12. In the event of failure of the defendant to pay the OA amount, the bank is at liberty to sell the schedule A property of the defendant and the sale proceeds be appropriate towards the OA amount as required under law. Schedule A property shown in Schedule of OA property shall become part and parcel of the final order of the OA and Recovery Certificate of present OA. The applicant bank shall file memo of costs within ten days from the date of this final order. Recovery Certificate shall be drawn up and issued to the Recovery Officer in terms of the final order. 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 11th day of May, 2017]

(S.V.GOWRAMMA)

A P P E N D I X Witness for Applicant: AW1: Bhanu Saranya, 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 13.4.2013 Sanction Letter of the applicant for grant of Housing Loan Facility A2 13.04.2013 Agreement for Housing Loan executed by the defendant in favour of the applicant. A3 15.04.2013 Letter evidencing deposit of title deeds executed by the defendant in favour of the applicant. A4 12.04.2013 Sale Deed No.1772/2013 dated 12.04.2013 of Thrissur Sub Registry executed by Jose and Valsala in favour of Fahad, pertaining to schedule A property. A5 27.05.2013 Rectification Deed No.2588/2013 of Thrissur Sub Registry executed by Jose and Valsala in favour of Fahad. A6

24.05.2014 Office copy of lawyer notice issued by the applicant to the defendant. A7

22.09.2014 Office copy of the recall notice issued by the applicant to the defendant. A8

Extract of Housing Loan Account No.435700KC00004424 maintained by the defendant with the applicant duly certified under Banker’s Book of Evidence Act. A9

Statement of account showing the calculation of unapplied interest and penal interest charged in the housing loan account.

Defendants’ Exhibits – Nil

(PRESIDING OFFICER)

SCHEDULE ‘A’

State : Kerala

District : Thrissur

Sub District : Thrissur

Taluk : Thrissur

Village : Killannur

Tenure : Pandaravakaparambu

Survey No. : 1003/1 pt.

Extent : 2.90 Ares

DESCRIPTION OF PROPERTY

All that pieces and parcels of land admeasuring 2.90 ares in Survey No.1003/1 pt. of Killannur Village, Thrissur Taluk, covered by Sale Deed No.1772/2013 of Thrissur Sub Registry. BOUNDARIES North : Property of Satheesh Manjula, 4 metres pathway and property of Been Jose.

East : Poomala Canal

West : Property of Suresh Kumar Vinaya

South : Property of Jayakumar

PRESIDING OFFICER

DEBTS RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM

Dated this the 11th day of May, 2017

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

T.A.No.269/2016 (O.A No.242/2016) Between Punjab National Bank, Represented by its Senior Manager. …Applicant

And

Fahad K.Jamal …Defendant

FINAL ORDER