BANK OF BARODA vs SRI.M.G. AZGAR on 7 May 2024

FINAL ORDER

The present Transfer Application (TA) is filed on 10.01.2020 under section 19 of Recovery of Debts Due to Banks and Financial Institutions Act 1993 for recovery of a sum of Rs.20,00,176.65 (Rupees twenty lakhs one hundred seventy six and paise sixty five 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 Due to Banks and Financial Institutions 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.1as borrower and Defendant No.2 guarantor and Defendant No.3 as builders. The Defendant No.1 &2 had approached the applicant bank seeking for Housing Loan of Rs.25,00,000/- (Rupees twenty five lakh only) an Loan Application dated 05.08.2014 for the purpose of construction of House. After due diligence, of the Defendant No.1 & 2, the applicant bank sanctioned an Housing Loan of Rs.25,00,000/- (Rupees twenty five lakh only) vide sanction letter dated 12.08.2014 in Loan account no. 144408351000106 , Defendant No.1, Defendant No.3 and Applicant entered a Tripartite Agreement dated 10.04.2014 on 12.08.2014 and

Rs.5,00,000/- on 02.09.2014 to Defendant No.3 on behalf of Defendant No.1 in line with the Tripartite Agreement amongst the parties. The Applicant Bank, promptly, released an aggregating sum of Rs.17,25,000/- to Defendant No.3 on behalf of Defendant No.1. On 12.08.2014 a sum of Rs.12,25,000/- and on 02.09.2014 a sum of Rs.5,00,000/- on 02.09.2014 have been disbursed to Defendant No.3 on behalf of Defendant No.1 out of the entire sanctioned sum of Rs.25,00,000/-. Remaining sanctioned sum has not been disbursed as the Defendant No.3 has not been fulfilled the terms and conditions of the various Agreement entered into between the parties.

4. The defendant 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 Agreement for Construction and Sale dated 07.04.2014 and Housing Loan Agreement dated 11.04.2014 and Affidavit dated 11.04.2014 in favour 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 loan account of the Defendants had been classified as a Non Performing Asset (NPA) on 31.05.2019 and the Applicant Bank issue a Notice dated 01.06.2019 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 TA, summons was sent to the Defendant Nos.3 through Registered Post with Acknowledgment Due the same is duly served on 06.04.2021 and Defendant Nos.1 & 2 returned unserved with postal shara “Unclaimed” Hence, summons through substitute service was taken and the Applicant Bank published on 29.04.2022 in two daily leading newspapers, “The New Indian Express” in English Newspaper and “Udayavani” in Kannada Newspaper. When TA was taken up on 08.06.2023 even after giving sufficient time, there was no appearance or representation from the Defendants; hence, Defendant Nos.1 & 2 were placed exparte on 08.06.2023.

Heard the submissions of Applicant Bank and perused the records.

7. To prove the case of the Applicant Bank, Sri. Kamalesh Kumar S/o late. Parasnath Sharma, 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 A10. As the Defendant remained ex- parte, the TA claim remains unchallenged. 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 Defendants to pay an amount of Rs.20,00,176.65 (Rupees twenty lakhs one hundred seventy six and paise sixty five only) as on 30.11.2019 along with further interest @10.30% + 2% penal interest in respect of Loan A/c No. 144408351000106 compounded monthly with effect from 01.12.2019 till full and final payment and/or realization of the entire debt.

(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 defendants duly considering the amounts, if any, paid by the defendant 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.

(h) Interim Application pending if any, stands disposed of with this 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 7th Day of May 2024].

Sd/- PRESIDING OFFICER

DRT-II, BENGALURU ANNEXURES

WITNESSES EXAMINED FOR THE APPLICANT BANK: AW-1: Sri. Kamalesh Kumar S/o late. Parasnath Sharma, 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 Notification dated 02.01.2019.

A4 Agreement for Construction and Sale dated 07.04.2014 A5 Sanction letter dated 12.08.2014 A6 Housing Loan Agreement dated 11.04.2014 A7 Tripartite Agreement dated 10.04.2014. A8 Affidavit dated 11.04.2014. A9 Notice dated 01.06.2019 A10 True Extract of Statement of Accounts pertaining to the Defendants’ Loan Accounts

Witness Examined for the Defendants: -Nil - List of Documents Exhibited for the Defendants: -Nil -

SCHEDULE “A” OWENER D-1 MR. M.G. AZGAR

Non-agricultural immovable property situated in 80 Badagabettu Village, within Udupi Sub-Registrar and Registration District, held on Muli right covered by Sy No.230-2p4, converted to the extent of 0.50 cents, boundaries, East: Sub Division Line South: Portion of the same S.D West: Sub Division Line/ Road, North: Portion of the same S.D.

SCHEDULE “B” (OWNER MR. M.G. AZGAR)

Residential Apartment bearing No. 801, measuring 1595 sq.ft. super built up area in the eight floor and car parking space bearing No. Open – 9

measuring 120 sq.ft. super built up area in the stilt floor of the multi storied commercial cum residential building named “MARS ELEMENTS” constructed on the property mentioned in Schedule “A”.

Sd/- PRESIDING OFFICER

DRT-II, BENGALURU