Allowed

Icici Bank Limited v. Sh. Mohammed Hashim

DRT14 Dec 2023OA/1075/2022

Case brief

AI extract

What is this about?

The Tribunal allowed an Original Application filed by ICICI Bank Limited against borrowers and the builder for recovery of a defaulted home loan principal and ordered issuance of a Recovery Certificate with modified interest.

What did the court decide?

Recovery Certificate issued for Rs. 1.32 Cr with interest at 7% p.a.; builder directed to hand over title deeds; execution proceedings permitted.

Icici Bank Limited versus Sh. Mohammed Hashim — Contract and Commercial Disputes | DRT (2023)

¶1

DEBTS RECOVERY TRIBUNAL-2, CHANDIGARH, PRESIDED OVER BY M.M. DHONCHAK

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ORIGINAL APPLICATION NO.1075/2022 DATE OF INSTITUTION: 24.05.2022

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DATE OF DECISION: 14^th DAY OF DECEMBER, 2023

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ICICI Bank Limited , a body corporate, incorporated under the Companies Act, 1956 and a Bank within the meaning of the Banking Regulation Act, 1949, having its registered office at ICICI Bank Tower, Near Chakli Circle, Old Padra Road, Vadodara-390007 and its corporate office at ICICI Bank Towers, Bandra Kurla Complex, Mumbai-400051, having Branches all over India and one of its Branches situated at First Floor, Near N.K. Sharma Office, ChandigarhAmbala National Highway, Zirakpur, District Mohali, Punjab, through its Authorised Signatory, Sh. Ashwini Verma

¶5

…..Applicant

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Versus

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Sh. Mohammad Hashim s/o Sh. Hissar Ahmed r/o House No. 699, Sector 29, Faridabad, Haryana-121008

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2^nd Address: c/o NDTV Profit Graphics, Archana Complex, GK-I, New Delhi-110048

¶9

Smt. Firdous Hashim w/o Sh. Mohammad Hashim r/o House No. 699, Sector 29, Faridabad, Haryana-121008

¶10

Sidhartha Buildtech Private Limited, having its registered office at 168-169, Amar Colony, Lajpat Nagar-IV, New Delhi-110024

¶11

2^nd Address: Plot No. 128, Ground Floor, Sector 44, Gurugram,

¶12

Haryana-122003

¶13

…..Defendants

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OA/1075/2022 ICICI BANK LIMITED Vs MOHAMMAD HASHIM AND OTHERS 2

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Argued by: Sh. Rahul Garg, Advocate for the applicant bank Defendants ex parte vide order dated 27.09.2023

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FINAL ORDER

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Present Original Application was instituted by the applicant bank under Section 19(1) of the Recovery of Debts and Bankruptcy Act, 1993 (hereinafter referred to as ‘the Act’ for brevity), against the defendants for recovery of Rs.1,32,85,794/(Rupees One Crore Thirty Two Lac Eighty Five Thousand Seven Hundred and Ninety Four Only) . It has been filed through Sh. Ashwini Verma, Authorised Signatory of the applicant bank stated to be competent to institute the Original Application vide Power of Attorney dated 24.04.2009, Annexure-A1 (copy).

¶18

The brief facts of the case of the applicant as per Original application are that defendant Nos. 1 and 2 had approached the applicant bank for grant of Home loan facility of Rs. 1,35,00,000/- vide loan application, Annexure-A2 (copy). 3. The applicant bank sanctioned Rs.1,27,50,000/- to defendant Nos. 1 and 2 vide letter dated 28.12.2017, Annexure-A3 (copy), as per terms and conditions which were duly accepted by the defendants.

¶19

In order to secure the aforementioned credit facility, defendant Nos. 1 and 2 executed facility arrangement dated 19.01.2018, Annexure-A4 (copy). 5. The aforesaid limit was further secured by creation of mortgage by defendant No. 1 in respect of residential property bearing Apartment No. A-1804, measuring 3312 Square Feet on 18^th

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OA/1075/2022 ICICI BANK LIMITED Vs MOHAMMAD HASHIM AND OTHERS 3

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Floor of Tower-A in NCR Green situated at Sector 95, Gurugram,

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Haryana, fully detailed in para No. 5(v) of the OA.

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The documents related to mortgage are as under:

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i. Allotment letter dated 12.12.2017, Annexure-A5 (copy).

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ii. Apartment buyer’s agreement, Annexure-A6 (copy).

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iii. Letter dated 16.01.2018 regarding permission to mortgage of property, Annexure-A7 (copy).

¶27

It is further the case of the applicant bank that the loan facility was duly availed of by defendant Nos. 1 and 2 but they failed to maintain the financial discipline of the applicant bank leading to the loan account becoming irregular and it being classified as NPA on 04.08.2021 vide NPA certificate dated 28.02.2022, Annexure-A9 (copy). The applicant bank recalled entire outstanding amount vide loan notices dated 20.09.2021 along with postal receipts, Annexure-A8 (colly) (copy), but to no avail.

¶28

7. It is further the case of the applicant bank that after adjusting debit and credit entries in the loan account, a sum of Rs.1,32,85,794/- (Rupees One Crore Thirty Two Lac Eighty Five Thousand Seven Hundred and Ninety Four Only), is recoverable against defendant Nos. 1 and 2 as per statement of account certified under Bankers’ Books Evidence Act, 1891, Annexure- A10 (copy).

¶29

Since defendant Nos. 1 and 2 did not repay the outstanding amount, therefore, the applicant bank preferred the present Original Application for issuance of Recovery Certificate.

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OA/1075/2022 ICICI BANK LIMITED Vs MOHAMMAD HASHIM AND OTHERS 4

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Notices of the Original Application were duly served upon the defendants, but since none appeared on behalf of the defendants, thus, the defendants were proceeded against ex-parte vide order dated 27.09.2023 .

¶32

In support of contents of the OA, affidavit of evidence of Sh. Ashwini Verma, Authorised Signatory of the applicant bank was filed.

¶33

This Tribunal has heard ex-parte arguments advanced by the learned counsel for the applicant bank and gone through the record carefully.

¶34

It was argued by the learned counsel for the applicant bank that in view of unrebutted documentary evidence brought on record, the applicant bank had proved its case against defendant Nos. 1 and 2 for recovery of the amount sought. From perusal of AnnexuresA1 to A10 , it is clear that defendant Nos. 1 and 2 had approached the applicant bank for availing of the loan facility which was granted to them. It is further clear that defendant Nos. 1 and 2 had executed all the relevant documents as stated above in favour of the applicant bank. Unfortunately, defendant Nos. 1 and 2 failed to pay back the loan as per terms and conditions of the agreement executed between the parties. From the documentary evidence brought on record, it is proved that applicant bank is entitled to recover a sum of Rs.1,32,85,794/- (Rupees One Crore Thirty Two Lac Eighty

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Five Thousand Seven Hundred and Ninety Four Only) from defendant Nos. 1 and 2.

¶36

In so far as pendente lite and future interest is concerned,

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the applicant bank in relief clause has claimed rate of interest @24%

¶38

OA/1075/2022 ICICI BANK LIMITED Vs MOHAMMAD HASHIM AND OTHERS 5

¶39

per annum. In letter dated 28.12.2017, Annexure-A3 (copy), rate of interest has been mentioned @8.40% per annum.

¶40

This Tribunal is of the considered opinion that sometimes in appropriate cases the prerogatives of mercy and magnanimity are the brightest jewels in the crown of the Judge. Keeping in view the facts and circumstances of the instant case including the Pandemic Covid-19 affecting businesses, nature of mortgage property, purpose of loan, i.e. housing, quantum of loan and prevalent market rates of interest which have gone drastically downhill in yesteryears and defendant No. 2 being a female, while exercising the discretion vested in this Tribunal, this Tribunal deems it just and appropriate to grant uniform simple interest @7% per annum from the date of filing of the OA till realisation of the amount ordered vide this order. It is ordered accordingly.

¶41

Learned counsel argued that title deed of the secured asset (Flat) might be ordered to be handed over to the applicant bank by defendant No.3 because with the same being handed over to defendant Nos.1 and 2 by defendant No.3, they (defendant Nos.1 and 2) would be able to alienate the same and the alienation of the same would create hindrance in the way of execution of the Recovery Certificate issued by this Tribunal. The above apprehension of the learned counsel, cannot be said to be without any foundation and substance. Therefore, it would be in the interests of justice if this Tribunal directs defendant No.3 to hand over the title deed of the property in question to the applicant bank. It is ordered accordingly.

¶42

OA/1075/2022 ICICI BANK LIMITED Vs MOHAMMAD HASHIM AND OTHERS 6

¶43

In the result, the Original Application is allowed with costs holding that defendant Nos.1 and 2 are liable to pay to the applicant bank a sum of Rs.1,32,85,794/- (Rupees One Crore Thirty Two Lac Eighty Five Thousand Seven Hundred and Ninety Four Only) with current and future simple interest @7% per annum w.e.f. 24.05.2022 , till the date of realisation of the amount. The liability of defendant Nos.1 and 2 shall be joint as well as several. Accordingly, the applicant bank shall be at liberty to recover aforesaid amount from the sale of mortgaged/hypothecated property of defendant Nos.1 and 2 in execution proceedings, if not sold earlier under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 or otherwise. If the dues of the bank still remain unsatisfied, the applicant bank shall be at liberty to recover the same by attachment and sale of personal assets of defendant Nos.1 and 2. However, the applicant bank is at liberty to enforce the claim through due process of law.

¶44

Issue Recovery Certificate accordingly.

¶45

Parties to appear before Recovery Officer concerned on 05.02.2024.

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Copy of this order be sent to the applicant bank and the defendants through registered/speed post. This order be uploaded on the official website of this Tribunal.

¶47

Pronounced in the open Tribunal (M.M. Dhonchak) Presiding Officer DRT-2, Chandigarh

Icici Bank Limited v. Sh. Mohammed Hashim

Case brief

What is this about?

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Icici Bank Limited v. Sh. Mohammed Hashim

Case brief

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