State Bank of India vs K. Anandakumar on 22 September 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.85,82,483/- comprising of a sum of Rs.84,50,195/- with further interest at the rate of 8.55% per annum with monthly rests being the amount due under the housing loan account and a sum of Rs.1,32,288/- with further interest at the rate of 8.70% per annum with monthly rests being the amount due under home loan insurance account 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 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 for grant of housing loan vide Loan application dated 26.04.2017 for purchasing the schedule mentioned property and the applicant considering the said request sanctioned housing loan of Rs.73,72,000/- vide its sanction dated 17.05.2017. It is stated that the defendant executed necessary loan and security document on 19.05.2017. It is also stated that at the request of the defendant the applicant had also sanctioned home loan insurance of Rs.3,06,895/- to the defendant. It is further stated that the defendant deposited the title deeds of the schedule mentioned property 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 12.07.2017 registered as Doc. No.5834 of 2017, SRO, Pallavaram.

4. It is the case of the applicant that the defendant committed default in repayments and failed to regularize the loan accounts despite repeated request and hence the loan account was classified as NPA

5. 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.

6. Summons were taken out to the defendant and the same returned with endorsement “No such person” and hence the service was completed by substituted service causing paper publication. As there was no representation on behalf of the defendant on 17.092019, the defendant was called absent and set ex-parte on that day. Applicant Bank filed Proof Affidavit along with 17 documents, which were marked as Ex. A-1 to A-17 on 21.07.2023, however, Exhibit A-10 was marked subject to proof. The Ld. Counsel for Applicant Bank made his submissions on 22.08.2023 and thereafter the matter stood till this date for passing final orders.

7. 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.

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

9. The evidence of the applicant is led by AW1 who produced the documents Exhibit A-1 to A-17 along with the proof affidavit. The documents produced in evidence are all found admissible. The proof affidavit of the applicant bank remained unchallenged and rebutted. 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 defendant. It is clear from the statement of accounts that penal interest is not capitalized.

10. 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.

11. 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.

12. 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.430 of 2022 stands allowed.

(b) Applicant is permitted to realize a sum of Rs.85,82,483/- together with interest at the rate of 8% per annum (simple) from the defendant, 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 mentioned properties and other assets of the defendant.

(c) 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.

(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.

13. 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 22nd day of September, 2023) Sd/- (T. RAJESH) PRESIDING OFFICER DRT-II, CHENNAI