BANK OF BARODA vs Mrs. P. Prabhavathy on 31 July 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 defendants’ seeking issuance of a Recovery Certificate for recovery of a sum of Rs.17,98,193/- with further interest at the rate of 9.60% per annum with monthly rests plus 2% penal interest from the date of filing of the OA till the date of realisation along with costs of the application and for sale of schedule mentioned property.

2. The subject matter of the case is the “Housing Loan” availed by one Mr. R. Ravikumar, who was working as HOD – M.Sc.,-IT with St. Peter’s Engineering College, Avadi.

3. This OA was initially filed before DRT-I Chennai as OA No.327/2017, wherein the defendants were called absent and set ex-parte on 08.02.2018. The applicant bank filed Proof Affidavit along with 14 documents, which were marked as Exhibits A-1 to A-14 on 19.04.2018. After the Ld. Counsel for the Applicant was heard on 19.04.2018, the case for posted for orders on 25.04.2018 and the Ld. Presiding Officer, DRT-I Chennai by its orders dated 25.04.2018 allowed the OA and ordered as follows: - “(a) The applicant is entitled to recover from the defendants jointly and severally a sum of Rs.17,98,193/- with further interest @9% per annum (simple) from the date of filing of the OA till the date of realization.

(b) It is further ordered that in case of default of payment by the defendants, the applicant is at liberty to sell the schedule mentioned property and appropriate the sale proceeds towards the decreetal dues.

(c) If the sale proceeds are not found sufficient to cover the amount due and payable to the applicant, the defendants are personally liable for all such amounts due.

(d) It is further ordered that any amount remitted or realized, if any, during the course of the proceedings, shall be givne due credit to the loan account of the defendants.

(e) The applicant bank is entitled for costs of the OA from the defendants.”

4. While so, the defendants filed MA No.25 of 2018 under SR No.4201/2018 dated 02.07.2018 seeking to condone the delay of 17 days in filing the accompanying application seeking to set aside the ex-parte final order dated 25.04.2018 passed by this Tribunal. This Tribunal by its order dated 27.09.2018 allowed MA No.25/2018 and condoned the delay in filing the set aside petition, which later came to be numbered as MA No.46/2018. After hearing the parties, this Tribunal by its order dated 05.12.2018 allowed MA No.46/2018 and set aside the final order dated 25.4.2018 on condition that the petitioners shall deposit 10% of the amount of Rs.17,98,193/- to the credit of their loan account lying with the 1st Respondent on or before 4.1.2019, in default, the petition shall stand dismissed. No costs. If this condition is complied, the petitioner shall file written statement by 5.2.2019. The defendants instead of complying with the condition imposed filed IA No.82 of 2019 seeking extension of time for compliance of the condition. This Tribunal by its order dated 26.03.2019 allowed IA No.82/2019 by condoning the delay in depositing the amount as per the order in MA No.46/2018 dated 5.12.2018 and directed the defendants to file their Reply Statement by 11.4.2019 and the applicant bank was also directed to file their proof affidavit, if any, by 8.4.2019. As the defendants failed to file their reply statement by 11.4.2019, the chance for filing reply statement was closed on 26.4.2019. On 21.07.2019, a submission was made by the Ld. Counsel for the applicant to the effect that witness is already examined in OA No.327/2017 prior to the final order which was set aside and there is no other evidence excepting that of AW-1, who is already examined on 19.4.2018 and relied upon the said evidence. It is recorded on the same day that since there is no written statement, there remains no scope for CPA. As there was no representation for the parties continuously, the case was posted to 30.06.2023 and the matter stood till day for passing final orders.

5. It is seen that the housing loan was availed by one Mr. R. Ravikumar, who was working HOD – M.Sc., IT with St. Peter’s Engineering College, Avadi approached the applicant by loan application dated 28.11.2007 for purchase of schedule mentioned property and the applicant considering the said request sanctioned a housing loan of Rs.14 lakhs to the said Mr. R. Ravikumar on 13.12.2007. It is also seen that the said Mr. R. Ravikumar executed various loan and security documents on 14.12.2007 and the 4th defendant executed guarantee agreement dated 14.12.2007 thereby guaranteeing due repayment of the loan availed by Mr. R. Ravikumar. It is further seen that Mr. R. Ravikumar defaulted in repayment and hence the applicant issued a legal notice on 4.12.2015. The said notice to Mr. R.

Ravikumar was returned with endorsement “expired”. On enquiry the applicant came to know that Late R. Ravikumar had left behind the defendants 1 to 3 as his legal heir and hence the present OA was filed against the defendants 1 to 3 and the 4th defendant being the guarantor.

6. After the ex-parte final order dated 25.4.2018 was set aside, the defendants did not choose to file their reply statement despite availing sufficient time for filing the same. As the applicant bank had on 21.07.2022 had submitted that there is no other evidence excepting of AW-1, who was examined on 19.4.2018, the same are relied upon as evidence of the applicant. The defendants also did not choose to file their Counter Proof Affidavit.

7. Neither of the parties, advanced their arguments despite the Tribunal affording them sufficient time and the chance for arguments stands closed and the Tribunal proceeds to pass this order based on the documents available on record.

8. The evidence of the applicant is led by AW1 who produced the documents Exhibit A-1 to A-14 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 defendants. 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. Point is answered accordingly.

9. 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.

10. In view of the fact that the instant loan is availed by Late Mr. R. Ravikumar is a housing loan and the applicant has claimed interest at contractual rates till the date filing of the OA, this Tribunal is of the view that the pendent lite interest can be awarded at reduced rates and therefore proceeds to award interest at the rate of 9% per annum (simple).

11. 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.650 of 2023 stands allowed.

(b) Applicant is permitted to realize a sum of Rs.17,98,193/- with further interest at the rate of 9% per annum (simple) from the defendants jointly and severally from the date of filing of the OA till date of realization, after deducting all the amounts received and recovered by them during the pendency of TA, and also by selling the other assets of the defendants. However, the liabilities of defendants 1 to 3 are restricted to the extent of estate devolved upon them from the deceased Mr. R. Ravikumar.

(c) It is made clear that the 4th defendant is personally liable for all such amounts due under the said facility.

(d) 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.

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

14. 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 31st day of July, 2023) Sd/- (T. RAJESH) PRESIDING OFFICER DRT-II, CHENNAI