Allowed

Icici Bank Limited v. M/S Shri Mahakal Trading Company

DRT19 Sept 2023OA/177/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal allowed the original application filed by ICICI Bank for issuance of a recovery certificate and ordered the respondents to pay Rs. 1.05 Crore with simple interest at 9% per annum.

What did the court decide?

Recovery certificate issued; recovery of Rs. 1,05,60,368.42/- with simple interest @9% p.a. w.e.f. 25.01.2022 enforced against mortgaged property or personal assets.

Icici Bank Limited versus M/S Shri Mahakal Trading Company — Execution and Attachment | DRT (2023)

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

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ORIGINAL APPLICATION NO.177/2022

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DATE OF INSTITUTION: 25.01.2022

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DATE OF DECISION: 19^th DAY OF SEPTEMBER, 2023

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ICICI Bank Limited , a body corporate, incorporated under the Companies Act, 1956 and bank within the meaning of the Banking Regulation Act, 1949 and having its registered Office at Near Chakli Circle, Old Padra Road, Vadodra-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 Plot No. 143-A, City Emporium, Industrial Area, Phase-I, Chandigarh-160002, through its Authorised Signatory, Sh. Deepak Ahuja

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…..Applicant Bank

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Versus

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M/s Shri Mahakal Trading Company, through its Proprietor, Shop No.38, Main Grain Market, Radaur, District Yamunanagar, Haryana-135133

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Sh. Kuldeep s/o Sh. Karam Parkash, Proprietor, Shri Mahakal Trading Company

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Sh. Pardeep Kumar s/o Sh. Karam Parkash Defendant Nos. 2 and 3 are residents of

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House No. 549/8, Nagar Mohalla, Radaur, District Yamunanagar, Haryana-135133

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Ms Ashu Rani d/o Sh. Shiv Kumar r/o House No.40, Ward No.6, Chotti Mandi Cheeka, District Kaithal, Haryana-136034

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OA/177/2022 ICICI BANK Vs SH. MAHAKAL TRADING COMPANY AND OTHERS 2

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2^nd Address: House No. 728/5, Ward No. 5, Old Abadi Radaur, Yamunanagar, Haryana-135133

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…..Defendants

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Argued by: Sh. Mohamad Vajid, Manager for the applicant bank Defendants ex parte vide order dated 06.07.2022

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FINAL ORDER

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Present Original Application was instituted by the applicant

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bank under Section 19(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as ‘the Act’ for brevity), against the defendants for recovery of Rs.1,05,60,368.42/- (Rupees One Crore Five Lac Sixty Thousand Three Hundred Sixty Eight and Forty Two Paisa

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Only) . It has been filed through Sh. Deepak Ahuja, Authorised Signatory of the applicant bank stated to be competent to institute the Original Application vide Power of Attorney dated 06.02.2018, Annexure-A1 (copy).

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The brief facts of the case of the applicant as per the Original Application are that defendant No. 1 through defendant No.2 had approached the applicant bank for grant of overdraft facility of Rs. 85 lac and financial assistance of Rs. 16,50,000/under Emergency Credit Line Guaranteed Scheme . Defendant Nos.2 to 4 stood as guarantors for repayment of the loans.

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The applicant bank sanctioned above mentioned credit facilities to the defendants vide final credit application form dated

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OA/177/2022 ICICI BANK Vs SH. MAHAKAL TRADING COMPANY AND OTHERS 3

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05.12.2019, Annexure-A3 (copy) as per terms and conditions which were duly accepted by the defendants.

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In order to secure the aforementioned credit facilities, the defendants executed sole proprietorship letter dated 05.12.2019, Annexure-A2 (copy) and guarantee deed dated 06.12.2019, Annexure-A4 (copy).

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The aforesaid loans were further secured by creation of mortgage by defendant No. 4 in respect of residential house measuring 82.90 Square Yards situated in Ward No. 5, Old Abadi, Teshil Radaur, District Yamunanagar, 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. Registered sale deed dated 27.07.2018, Annexure-A5 (copy).

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ii. Memorandum of entry dated 06.12.2019, Annexure-A6 (copy).

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iii. Declaration dated 06.12.2019 in the matter of mortgage by deposit of title deeds in respect of immovable properties, Annexure-A7 (copy).

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It is further the case of the applicant bank that the loan facilities were duly availed of by the defendants but they failed to maintain the financial discipline of the applicant bank leading to the loan accounts becoming irregular and those being classified as NPA on 30.08.2021. The applicant bank recalled the entire outstanding amount vide notices dated 08.11.2021, Annexures-A8 and A9 (copy), but to no avail.

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OA/177/2022 ICICI BANK Vs SH. MAHAKAL TRADING COMPANY AND OTHERS 4

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It is further the case of the applicant bank that after adjusting debit and credit entries in the loan accounts, a sum of Rs.1,05,60,368.42/- (Rupees One Crore Five Lac Sixty Thousand Three Hundred Sixty Eight and Forty Two Paisa Only) , is recoverable against the defendants as per statements of accounts, certified under Bankers’ Books Evidence Act, 1891, Annexures-A10 and A11 (copy).

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Since the defendants did not repay the outstanding amount, therefore, the applicant bank preferred the present Original Application for issuance of Recovery Certificate.

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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 06.07.2022 .

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

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This Tribunal has heard ex-parte arguments advanced by Sh. Mohamad Vajid, Manager for the applicant bank and gone through the record carefully.

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It was argued by Sh. Mohamad Vajid, Manager of the applicant bank that in view of unrebutted documentary evidence brought on record, the applicant bank had proved its case against the defendants for recovery of the amount sought. From perusal of Annexures-A1 to A11 , it is clear that the defendants had approached the applicant bank for availing of the loan facilities which were granted to them. It is further clear that the defendants had

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OA/177/2022 ICICI BANK Vs SH. MAHAKAL TRADING COMPANY AND OTHERS 5

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executed all the relevant documents as stated above in favour of the applicant bank. Unfortunately, the defendants 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.1,05,60,368.42/- (Rupees One Crore Five Lac Sixty Thousand Three Hundred Sixty Eight and Forty Two Paisa Only) from the defendants.

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In so far as pendente lite and future interest is concerned, the applicant bank in relief clause has claimed rate of interest @16% per annum. In final credit application form dated 05.12.2019, Annexure-A3 (copy), rate of interest has been mentioned @10% per annum.

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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 mortgaged property, purpose of loan, i.e. business, quantum of loan and prevalent market rates of interest which have gone drastically downhill in yesteryears and defendant No.4 being a female, while exercising the discretion vested in this Tribunal, this Tribunal deems it just and appropriate to grant uniform simple interest @9% per annum from the date of filing of the OA till realisation of the amount ordered vide this order. It is ordered accordingly.

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In the result, the Original Application is allowed with costs holding that the defendant is liable to pay to the applicant bank a

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OA/177/2022 ICICI BANK Vs SH. MAHAKAL TRADING COMPANY AND OTHERS 6 sum of Rs.1,05,60,368.42/- (Rupees One Crore Five Lac Sixty Thousand Three Hundred Sixty Eight and Forty Two Paisa Only) with current and future simple interest @9% per annum w.e.f. 25.01.2022 , till the date of realisation of the amount. The liability of the defendants 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 the defendants 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 the defendants. However, the applicant bank is at liberty to enforce the claim through due process of law.

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Issue Recovery Certificate accordingly.

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Parties to appear before Recovery Officer concerned on 16.10.2023 .

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

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

Icici Bank Limited v. M/S Shri Mahakal Trading Company

Case brief

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Icici Bank Limited v. M/S Shri Mahakal Trading Company

Case brief

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