INDIAN OVERSEAS BANK vs SMT.O SARITA GOUD on 12 July 2022

FINAL ORDER

The applicant has filed the present OA has been filed by the Applicant Bank under Section 19 of the Recovery of Debts Due to Banks and Bankruptcy Act 1993 on 05.08.2016 in DRT-I, Bangalore and numbered as OA 1723-2016. Owing to bifurcation of jurisdiction vide Government of India Gazette Notification dated 30-01-2017 the said application was transferred to DRT-II, Bangalore and re numbered as TA No.2068-2017, seeking recovery of sum of Rs.36,26,118/- (Rupees Thirty-Six Lakh Twenty-Six Thousand One Hundred Eighteen only) together with costs, interest, etc.

2. The application filed is within the period of limitation as prescribed under Section 24 of the Recovery of 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. The case of the Applicant Bank is that the Defendant No.1 is the borrower, The Defendant No.1 approached the Applicant Bank for procuring financial assistance for the purpose of Term/Housing Loan facility of Rs.26,50,000/- on the request of the Defendant, this loan amount was enhanced to Rs.27,51,018/- (Rupees Twenty-Seven Lakh Fifty-One Thousand One Hundred Eighteen Only) vide sanctioned letter dated 09-06-2012, with the repayable in 300 monthly installments of Rs.27,462/- commencing from July 2012 and agreed to pay interest 0.75% p.a. over Bank’s base rate with monthly rests.

4. The defendants executed necessary loan documents in favour of the applicant bank and mortgaged the schedule mentioned property as security for the due repayment of the loans, interest, cost and charges, by deposited a Title Deed dated 11-06-2012.

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 was classified as Non Performing Asset (NPA) on 01-10-2013. The Applicant bank issued loan Recall/Legal Notice dated 16-01-2014 calling up on the Defendants to pay the outstanding loan amount. However, there was no positive response from the defendants. Hence, this Original Application (OA) has been filed to recover the dues from the defendants.

Written Statement filed by Defendant in brief:- The Applicant is not maintainable either in low are on facts. The Apartment has been completed and possession has been deliver to the Defendant. This Defendant admits the averment regarding the intention to purchase of apartment, However sanction desire to enhanced to Rs.27,51,108/- and also averments regarding establishment of the terms and conditions of the sanction dated 09-06-2012. Defendant admits the execution of the promissory Note Term Loan Consent-cum-authorization letter dated 09-06-2012, the documents have been filled up by the applicant bank suit their convenience. Defendants denies the execution of documents with regarding to the rate of interest. Defendant denies the executed a memorandum of Deposit of Title deeds, dated 11-06-2012, relating to the schedule property and its registered in the offices of the Sub-Registrar, Jayanagar, Bangalore.

The letter of revival dated 27-06-2014, acknowledging her liability are dines. The Developer and loan load failed to handover the vacant possession of the property by completing the said project. Due to the said unavoidable circumstances non delivery of the possession from the land owner. The Defendant filed to adhere to the terms and conditions of the loan. Applicant Bank failed to disclose the said facts. The OA clearly reveals at by the bank is without deducting the payments made by defendant on several occasions and also charging the higher rate of interest. The Statement of the Account is not admitted and several payments have not been reflected in the statement of accounts. The Defendants denies the rate of interest and Penal Interest with monthly rest as claimed by the bank. There is no cause of action to file the OA. Therefore OA may be dismiss.

6. After the filing of the OA, Summons was sent to the Defendant through RPAD, and were duly served. The Defendant filed is vakalath through counsel Sri.K.S Shrikanth. The Defendant represented by his counsel filed his written statement. Further Defendant did not adduced any evidence in support of the case. When OA was taken up on 026.05.2022 even after giving sufficient time, there was no appearance or representation from the defendant.

Heard the submissions of Applicant Bank and perused the records.

7. To prove the case of the Applicant Bank, it’s Chief Manager Sri.B.N. Rajagopala S/o Late. Narasimhaiah 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 A11. 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 defendant a sum of Rs.36,26,118/- (Rupees Thirty-Six Lakh Twenty-Six Thousand One Hundred Eighteen only) together with interest thereon at the rate of 11.70% p.a. with monthly rests, from this date 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 mortgaged 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) 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.

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 12th Day of JULY, 2022].

Sd/- PRESIDING OFFICER DRT-II, BENGALURU

ANNEXURES WITNESSES EXAMINED FOR THE APPLICANT BANK: AW-1: Sri.B.N. Rajagopala S/o Late. Narasimhaiah, Chief Manager of Applicant Bank.

Exhibits on the part of the Applicant:

Exhibit Nos. Date Particulars of Documents A1

Applicant’s Evidence A2

List of Documents A3 09.06.2012 Credit Sanction Advice from Bank to Defendant. A4 09.06.2012 Promissory Note from Defendant to Bank. A5 09.06.2012 Term Loan Agreement form Defendant to Bank. A6 09.06.2012 Consent cum Authorization form Defendant to Bank. A7 11.06.2012 Regd. Memorandum of Deposit to Title Deeds from Defendant to Bank. A8 12.06.2012 Letter of 1st Defendant relating to deposit of the Sale Deed. A9 27.06.2014 Letter of Revival form Defendant to Bank. A10 16.01.2014 Notice from Bank to defendant. A11 22.06.2012 to 27.06.2016 Statement of Account relating to the Term Loan of the Defendant. Witness Examined for the Defendants: -Nil - List of Documents Exhibited for the Defendants: -Nil -

SCHEDULE Description of the Property Mortgaged by the Defendant All that Apartment bearing No.401, 4th Floor, in the building called “Abode Krishna”, in property bearing Site No.104, Assessment Register No.3474, BBMP No.453/3474/104, (PID No.104/4-201), Jyothinagar, Banneghatta Road (Old Sy.No.82 and 83 of Gottigere Village, Uttarahalli Hobli), Bengaluru- 560 083, having an area of 1,100 Sq.ft. and 240 Sq.ft of undivided share in the lands in the said Site No.104, together with one Car Parking slot and bounded as follows.

East : By Road, West : By Apartment No. 402; North : By Property No. 105; South : By Property No.103.

Sd/- PRESIDING OFFICER

DRT-II, BENGALURU