CORPORATION BANK vs SRI. P.V. BALASUBRAMANIYAN on 9 June 2023

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 01.06.2016 and numbered as OA. No. 1407/2016, seeking recovery an sum of Rs.19,54,209.90/- (Rupees nineteen lakh fifty four thousand two hundred and nine and Paise ninety 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.834/2017. Brief facts of the case:

3. In the case of the Applicant Bank that the 1st Defendant as borrower have approached the Applicant Bank Cash Credit Loan. Considering the request of the Defendant, the applicant bank has sanctioned the Cash Credit Loan for sum of Rs.2,50,000/- (Rupees two lakh fifty thousand only) on 29.01.1998 towards working capital for the purpose of purchase stocks to run the trade at 3rd defendant. The defendant agree to repay the interest @ 22.25% p.a. together with On Demand Promissory Note dated 29.01.1998 in favour of the applicant bank.

3.1. The 1st defendant informed the applicant that the defendant already raised house loan from the Life Insurance Corporation of India to the tune of rs.4,24,000/- in order to acquire a house property. The 1st defendant giving loan facility for the financial assistance from the applicant not only for getting the sale deed from the LIC on payment of Rs.2,00,000/- but also to clear of the valid loan amount payable to LIC authority, the loan was sanctioned by the applicant. 3.2 The applicant bank after submits that the sale deed was released by the office of the sub-registrar, deposit several requests by the applicant, the 1st defendant with the malafide intention to defraud the applicant has sold the house property upon which charge was created by him in favour of the applicant under equitable mortgage. The applicant bank, the defendants No.4 & 5 would not derive any manner of right, title and interest much less possession over the schedule property until and unless charge created by the 1st redeemed.

3.3 The defendant jointly and severally to pay a sum of Rs.4,26,608/- on 31.07.2008 together with interest @ 22.25% p.a. from the date of suit till realization and further the defendants are directed to pay the entire loan amount within 6 months from the date of order and applicant bank is entitled to recover the entire decreetal amount by the schedule property sold and the sale proceeds of schedule property sold and if the sale proceeds of schedule property is insufficient to satisfy the decreetal amount.

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 On Demand Pronote dated 29.01.1998 in favour of the applicant bank.

5. The Applicant Bank submits that the Defendants, after availing the said loans, failed to repay the loan amount and committed default. However, there was no positive response from the defendants. Hence, this Transfer 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.1 to 3 through RPAD, but same returned un-served with postal share “Incomplete Address” returned to sender. Hence, summons through substitute service was taken and the Applicant Bank published the summons on 19.07.2018 in two daily leading newspapers, “The New Indian Express” in English Newspaper and “Samyuktha Karnaka” in Kannada Newspaper. Defendant Nos.4 & 5 are entered appearance through counsel Sri. A. Balakrishnan by filling Vakalath, filed an IA.No.49/2019 a petition filed on 01.02.2019for rejection of plaintiff and IA.No,50/2019, petition permit to file WS, they have not coming forward to address the arguments. Hence, both IA stood dismissed on 06.04.2023. When TA was taken up on 06.04.2023, in spite of giving sufficient time, there was no appearance or representation from the Defendants; hence, Defendant No.1 to 3 were placed exparte on 06.04.2023. Heard the submissions of Applicant Bank and perused the records.

7. To prove the case of the Applicant Bank, Sri. Surekha, Chief Manager has filed his 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 A16. As the defendants 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. Further though opportunity was given to Defendant No.4 & 5 to contested the matte, they failed even to address their arguments on IA. No.49/2019 till 06.04.2023, advanced the claim of the bank.

9. 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:

10. The TA is allowed with costs,

(a) The applicant bank is allowed to recover from Defendant Nos. 1 to 3 to pay a sum of Rs.19,54,209.90/- (Rupees nineteen lakh fifty four thousand two hundred and nine and Paise ninety only) together with pendent lite interest and future interest at 6% p.a. from 01.06.2016 till the date of realization.

(a) .1 The bank also sold property and recovery of sum of Rs.Rs.19,54,209.90/- (Rupees nineteen lakh fifty four thousand two hundred and nine and Paise ninety only). Hence the applicant bank further entitled for the claim amount less the sale proceeds and along with applicable interest.

(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 mortgaged properties are not sufficient to satisfy the amount due as ordered above, the applicant bank is at liberty to sell the personal assets of the defendants (both movable and immovable) 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 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 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.

11. 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 9th Day of June, 2023]

Sd/- PRESIDING OFFICER DRT-II, BENGALURU

ANNEXURES

WITNESSES EXAMINED FOR THE APPLICANT BANK: AW-1: Sri. Harish N, Manager of Applicant Bank.

Exhibits on the part of the Applicant:

Exhibit Nos. Particulars of Documents A1 Applicant’s Evidence A2 List of Documents A3 Copy of the Order dated 31.07.2008 A4 Copy of the execution petition No.214/2011

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

Schedule ‘A’

All that piece and parcel of the house property situated at No.161, 3rd Stage, Jeevanbheemanagar, Bangalore 560 075, measuring east to west 6.50 meteres and north to south 19.60 meteres, totally measuring 127 sq.mtr. built up area of the house existing over said property bounded on East by: Vacant land West by: House No.P-1-100, Sector XII North by: House No.P-162- Sector III South by: Road.

Sd/- PRESIDING OFFICER DRT-II, BENGALURU