ICICI BANK LIMITED vs SRI. JAYANT VORA on 27 May 2024

FINAL ORDER

The Application was originally filed before the Debts Recovery Tribunal-1, Bangalore under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act 1993 on 17.03.2014 and numbered as OA. No. 210/2015, seeking recovery an sum of Rs.49,79,824/- (Rupees Forty Nine Lakh Seventy Nine Thousand Eight Hundred and Twenty Four Only) with further interest thereon and costs from the Defendants.

2. Subsequently, in view of the Government of India Notification & Official Gazette dated 30.01.2017, the case was transferred to this Tribunal and renumbered as TA.536/2017. Brief facts of the case:

3. It is the case of the applicant bank where in the Defendant Nos.1 & 2 as borrowers had approached the applicant bank seeking for Housing Loan Rs.20,00,000/- (Rupees twenty lakh Only) an Letter dated 30.04.2005 for the purpose of purchase of Flat. After considering the proposal of the Defendant Nos.1 & 2 applicant bank sanctioned the for Housing Loan Rs.20,00,000/- (Rupees twenty lakh Only) vide sanction letter dated 01.07.2005. The defendants had agreed to repay the disbursed loan amount of Rs.20,00,000/- in equate monthly installments over a tenure of 185 months and along with variable (floating) rate of interest and to pay penal interest in case of default in the repayment.

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 Defendant executed Agreement of sale dated 30.04.2005 and Loan Agreement dated 06.07.2005 and Agreement of sale dated 30.05.2005 and Letter dated 07.05.2005 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 Applicant Bank issue a Recall Notice dated 21.09.2011 and Notice dated 28.11.2013 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 Defendant.

6. After the filing of the TA, summons was sent to the Defendant Nos.1 & 2 through Registered Post with Acknowledgment Due the same duly served and entered appearance through counsel Sri. B.H. Naveen by filling Vakalath, but did not file the written statement in spite of opportunity, hence Written Statement of Defendant No.3 was closed on 15.03.2023 and Defendant No.3 summon was is duly returned unserved with postal shara “No such person” Hence, summons through substitute service was taken and the Applicant Bank published on 19.04.2021in two daily leading newspapers, “The Hindu” in English Newspaper and “Samyuktha Karnataka” in Kannada Newspaper. When TA was taken up on 15.03.2024 even after giving sufficient time, there was no appearance or representation from the Defendants; hence, Defendant No.3 was placed exparte on 15.03.2024.

Heard the submissions of Applicant Bank and perused the records.

7. To prove the case of the Applicant Bank, Sri. Harish E, 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 A13. 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 jointly and severally to pay an amount of Rs.49,79,824/- (Rupees Forty Nine Lakh Seventy Nine Thousand Eight Hundred and Twenty Four Only) with future interest @ 24% p.a. with monthly rests from the date of the TA Application and till date of realization.

(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 27th Day of May 2024].

Sd/- PRESIDING OFFICER

DRT-II, BENGALURU ANNEXURES

WITNESSES EXAMINED FOR THE APPLICANT BANK: AW-1: Sri. Harish E, Manager, of Applicant Bank. Exhibits on the part of the Applicant:

Exhibit Nos. Particulars of Documents A1 Applicant Evidence A2 List of Documents. A3 Power of Attorney A4 Copy of the Letter dated 30.04.2005 sent by third Defendant to the first defendant informing about the costing of the Flat. A5 Copy of the Loan Application submitted by the Defendants. A6 Sanction Letter dated 01.07.2005 issued by the Applicant Bank. A7 Copy of the Agreement of sale dated 30.04.2005 A8 Copy of the Loan Agreement dated 06.07.2005 A9 Copy of the Letter dated 07.05.2005 issued by the third Defendant. A10 Copy of the statement of account. A11 Copy of the Recall Notice dated 21.09.2011

A12, A13 & A14 Copy of the Notice sent to third Defendant dated 28.11.2013 along with postal receipt and returned postal cover.

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

SCHEDULE

All that piece and parcel of the Flat No.04, situated on the Ground Floor of the Apartment known as “POLARYK ENCLAVE”, constructed on site bearing CMC No.37 & 38, formed out of converted land in Sy.No.42, Re-Survey No.42/1, Old Katha No.342/4, New Katha No.398d situated at Shanthi Layout, Kowdenahalli Village, KR Puram Hobli, Bangalore East Taluk, Bangalore measuring super built up area of 1302 sq.ft. and 240 sq.ft. on undivided share in the land over which the flat is constructed along with one covered car parking. Sd/- PRESIDING OFFICER

DRT-II, BENGALURU