STATE BANK OF INDIA vs KAVITHA N on 6 February 2024

FINAL ORDER

The present Original Application (TA) is filed on 17.12.2019 under section 19 of Recovery of Debts and Bankruptcy Act 1993 for recovery of a sum of Rs.94,52,118/- (Rupees ninety four lakh fifty two thousand one hundred and eighteen Only) with further interest thereon from the date of filing the Application till realization from the Defendants.

2. The application filed is within the period of limitation as prescribed under Section 24 Recovery of the Debts and Bankruptcy Act 1993 and the subject recovery claim falls within the jurisdiction of this Hon’ble Tribunal. Brief facts of the case:

3. It is the case of the applicant bank where in the Defendant No. 1 is the borrowers and Defendant No. 2 is the Guarantor. The Defendants had approached the applicant bank seeking for Housing Term Loan of Rs.92,00,000/- (Rupees ninety two lakh only) an loan application dated 23.08.2016. After, considering the request of the defendants, the applicant bank sanctioned a Housing Term Loan of Rs.92,00,000/- (Rupees ninety two lakh only) vide sanction letter dated 21.10.2016. The Defendants agreed to pay interest @ 9.25% p.a. with monthly rests, the rate of interest is subject to revision from time to time, as for the RBI guidelines. The loan is to be repayable in 240 equated monthly instalment of Rs.84,559/- plus interest commencing form November 2016 in respect of the said loan.

4. The defendants executed necessary loan documents in favour of the applicant bank as security for the due repayment of the loans, interest, cost and charges, and Defendants executed Arrangement Letter dated 21.10.2016 Memorandum of Loan Agreement for Home Loan and Letter dated 21.10.2016 and Deed of Undertaking and Operations Letter and Affidavit all dated 21.10.2016 Agreement Mortgaged and Registered Memorandum of Mortgage Deed dated 04.11.2016 and 2nd Defendant executed Guarantee Agreement dated 21.10.2016 in favor of the applicant bank.

5. The Applicant Bank submits that the Defendants, after availing the said facilities, failed to repay the loan amount and committed default. The Applicant bank issue a Demand Notices dated 04.02.2019 and Possession Notice dated 22.04.2019 calling upon the defendants to repay the entire outstanding loan amount. However, there was no positive response from the Defendants. Hence, this Original Application (TA) has been filed to recover the dues from the Defendants.

6. After the filing of the OA, summons was sent to the Defendant Nos.1

& 2 Registered Post with Acknowledgment Due the same is duly served on 10.11.2020 and 25.06.2020. Therefore, service held sufficient. When OA was taken up on 19.10.2022 even after giving sufficient time, there was no appearance or representation from the Defendants; hence, Defendant Nos.1 & 2 was placed exparte on 19.10.2022.

Heard the submissions of Applicant Bank and perused the records

7. To prove the case of the Applicant Bank, Smt. Daya S Naik W/o Moha J Naik, Chief Manager, has filed Affidavit by way of evidence and same was considered as evidence of AW.1 and marked as Ex.A1, the list of Document came to be marked as Ex.A2 and documents came to be marked as Ex.A3 to A17. There is no contra evidence available on record to repudiate the claim of the Applicant Bank.

8. Having regard to the amount advanced, the interest applied, the conduct and operations in the account and the default committed, this Tribunal comes to the conclusion that the applicant bank is entitled to a final order on the following terms:

: O R D E R:

9. The TA is allowed with costs,

(a) The applicant bank is allowed to recover from Defendant Nos.1 & 2 jointly and severally to pay an amount of Rs.94,52,118/- (Rupees ninety four lakh fifty two thousand one hundred and eighteen Only) in Loan A/c No. 36194558705 operated by the defendants and maintained by the applicant bank as on 14.10.2019 along with future interest prevailing @ 8.70% p.a. with monthly rests from the date of application till the date of realization in full.

(b) In the event of failure of the Defendants to pay the aforesaid amount, the bank is at liberty to recover the amount by sale of the schedule mentioned property in the TA;

(c) Schedule mentioned property in the TA shall be appended to this final order; (d) If the sale proceeds of the schedule mentioned properties are not sufficient to satisfy the dues as ordered above, the applicant bank is at liberty to sell the personal assets of the defendants (both movable and immovable) respectively to recover the balance dues as required under law; (e) The applicant bank shall file the latest memo of calculation of TA amount together with interest, costs etc., to be paid by the defendant duly considering the amounts, if any, paid by the defendants and/or amount realized by sale of assets etc., during the intervening period after the filing of the TA, enabling the Registry to prepare Recovery Certificate for the amount to be paid by the respective defendants to the applicant bank.

(f) The applicant bank shall file memo of costs within ten days from the date of this final order.

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

10. A copy of this order be communicated to the parties concerned. [Dictated to the (CS), transcribed by her, corrected and signed by me on this the 6th Day of February 2024].

(S.V.GOWRAMMA) PRESIDING OFFICER

DRT-II, BENGALURU

ANNEXURES

WITNESSES EXAMINED FOR THE APPLICANT BANK: AW-1: Smt. Daya S Naik W/o Moha J Naik, Chief Manager, of Applicant Bank. Exhibits on the part of the Applicant:

Exhibit Nos. Particulars of Documents A1 Applicant Evidence A2 List of Documents. A3 Loan application dated 03.08.2018 duly signed by the defendants A4 Sanction Letter dated 21.10.2016 duly singed by the Defendants accepting the terms and conditions of the grant of the loan. A5 Arrangement letter dated 21.10.2016 duly signed by the defendants A6 & A7 Memorandum of loan agreement dated 21.10.2016 and letter A8 to A10 Deed of undertaking dated 21.10.2016 operation letter and affidavit. A11 & A12 Guarantee Agreement dated 21.10.2016 executed in favour of the applicant bank and letter. A13 & A14 Mortgage Agreement dated 21.10.2016 and Registered Mortgage Deed dated 04.11.2016 A15 & A16 Demand Notice dated 04.02.2019 and Possession Notice dated 22.04.2019 A17 Statement of account in respect of Housing Loan No.36194558705, duly certified by the Applicant Bank. Witness Examined for the Defendants: -Nil - List of Documents Exhibited for the Defendants: -Nil -

SCHEDULE PROPETY All that piece and parcel of the Residential Flat No.G-2, Ground Floor, Pratham Lakshmi Apartment, Measuring 1450 sq.ft. along with on car parking space with undivided right of 560 sq.ft. situated at No.60 and 61, 3rd stage, Gokulam Extension, Devaraja Mohalla, Mysore. i.e., Defendant Nos.1 & 2 herein and bounded on:

East by: T B MM 56-66 West by: Road North by: Property No.60 South by: Property No.62/1

Sd/-

PRESIDING OFFICER

DRT-II, BENGALURU