State Bank of India vs Mr. S. Vinothkanna Sivaraj on 31 August 2023

FINAL ORDER

1. This application is filed by the applicant bank under Section 19(1) of Recovery of Debts and Bankruptcy Act, 1993 against the defendant seeking issuance of a Recovery Certificate for recovery of an aggregate sum of Rs.1,50,94,994/- comprising of a sum of Rs.1,50,93,245/- together with interest at the rate of 9.25% per annum with monthly rests being the amount due under Housing Loan Account and a sum of Rs.1,749/- together with interest at the rate of 9.25% per annum with monthly rests being the amount due under SBI Suraksha Loan Account from the date of filing of this application till the date of realisation along with costs of the application and for sale of schedule properties.

2. The subject matter of the case is the Housing Loan availed by the defendant from the Applicant Bank.

3. It is the case of the applicant that the defendant approached the applicant bank by Loan Application dated 18.12.2013 for grant of housing loan for purchase of the schedule mentioned property and considering the said request the applicant sanctioned “Housing Loan” of Rs.1,48,26,000/- subject to the terms and conditions envisaged in the Arrangement Letter dated 29.12.2013. It is also the case of the applicant that the defendants executed the loan documents on 29.12.2013 viz., Memorandum of Loan Agreement for Home Loan granted to Public, Deed of Undertaking and Agreement to Mortgage. It is the further case of the applicant that the defendants deposited the title deeds of the property more fully described in the schedule to the OA with the applicant bank with an intention to create equitable mortgage over the same and confirmed the same by executing Memorandum of Deposit of Title deeds dated 06.01.2014 registered as Doc. No.175 of 2014 on the file of SRO, Ambattur.

4. It is also the case of the applicant that at the request of the defendant the applicant sanctioned SBI Suraksha Loan of Rs.3,04,860/- and the defendant executed necessary documents to secure the same.

5. It is also the case of the applicant that the defendant violated the terms and conditions of sanction and committed default in repayments and failed to regularize the loan accounts despite repeated request and hence the loan account was classified as NPA on 31.03.2018in accordance with the guidelines of the Reserve Bank of India and the applicant issued the demand notice under Section 13(2) of the SAFAESI Act on 06.07.2018. It is stated that despite repeated requests the defendants did not come forward to clear the outstanding dues.

6. It is the case of the applicant that after availing the loan, the defendant was irregular in remitting the loan amount. The efforts of the applicant bank to make the defendant to settle the loan did not yield any result, and hence the applicant approached this Tribunal seeking issuance of a Recovery Certificate allowing recovery of the amount due in the account.

7. Summons taken out to the Sole defendant was returned with remarks “Left” and hence the defendant was served with notice by substituted service by causing paper publication. As there was no representation on behalf of the defendant continuously and on 01.05.2019 the defendants were called absent and set ex-parte on that day. Applicant Bank filed Proof Affidavit along with 23 documents, which were marked as Ex. A-1 to A-21 on 06.10.2020. Exhibit A- 22 and A-23 being part of Exhibit A-21 they are marked together as Exhibit A-

21. The Ld. Counsel for Applicant Bank made his submissions on 091.06.2023 and thereafter the matter stood till this date for passing final orders.

8. The following issues arise for consideration in the matter: - (a) Whether the applicant had succeeded in proving the liability of the defendant?

(b) What order as to cost of the proceedings need be passed?

These issues are considered together.

9. Heard the Ld. Counsel for the applicant, perused the OA averments and the record placed before the Tribunal.

10. The evidence of the applicant is led by AW1 who produced the documents Exhibit A-1 to A-21 along with the proof affidavit. The documents produced in evidence are all found admissible. The proof affidavit of the applicant bank remained unchallenged and unrebutted. Therefore, on careful consideration of proof affidavit along with exhibits filed on behalf of the applicant bank, besides the material placed before the Tribunal, the Tribunal is satisfied that the applicant bank has successfully proved the OA claim against the defendant. Further, the statement of accounts in respect of the loan account produced and certified under the Banker’s Book Evidence Act, clearly indicates that the amount claimed by the applicant is due from the defendants. It is clear from the statement of accounts that penal interest is not capitalized. However, as the applicant bank failed to produce any evidence with regard to the SBI Suraksha Loan, the claim of Rs.1,749/- is rejected.

11. In view of the foregoing, it is clearly evident that the application filed by the applicant bank is well within the period of limitation and this Tribunal possesses the territorial and pecuniary jurisdiction to entertain this OA.

12. In view of the fact that the loan facility availed by the defendant is a housing loan and the applicant has claimed interest at contractual rate till the date of filing of the OA, this Tribunal is of the view that the pendente lite interest can be awarded at reduced rates.

13. During the pendency of the OA applicant bank filed Part Satisfaction Memo in SR No.183/2021 dated 12.01.2021 stating therein that the applicant has realized a sum of Rs.1,33,16,000/- by sale of schedule mentioned properties under SARFAESI Act.

14. In view of the afore mentioned discussions, the only conclusion this Tribunal can draw is that the applicant had clearly proved the disbursement of the loan, which the applicant is entitled to realize. Hence, OA is disposed off in the following manner: - (a) TA No.404 of 2022 stands allowed.

(b) Applicant is permitted to realize a sum of Rs.1,50,93,245/- from the defendant together with interest at the rate of 8% per annum (simple) from the date of filing of the OA till date of realization after deducting all the amounts received by them during the pendency of OA, and also by selling the schedule propertis and other assets of the defendant. An amount of Rs.1749/- claimed towards due under SBI Suraksha Loan is rejected for want of evidence.

(c) It is made clear that the amount of Rs.1,33,16,000/- realized by the applicant bank by sale of schedule mentioned properties be given credit to the loan account on their respective dates.

(d) If the sale proceeds are not found sufficient to cover the amount due and payable to the Applicant Bank, the defendant is personally liable for all such amounts due as ordered above.

(e) Applicant is permitted to realize cost of the proceedings and shall file cost memo within 7 days from the date of receipt of the copy of the order.

(f) The Recovery Certificate shall be drawn up and issued to the Recovery Officer in terms of this final order.

15. Communicate a copy of the order to the parties concerned in terms of Section 19(21)(i) of the RDB Act, read with Rule 16 of DRT (Procedure) Rules, 1993. (Dictated to PS, transcribed by him, corrected, signed and pronounced by me in Open Court on this the 31stday ofAugust, 2023) Sd/- (T. RAJESH) PRESIDING OFFICER DRT-II, CHENNAI