Allowed

Kotak Mahindra Bank Limited v. Hira

DRT23 Aug 2023OA/193/2022

Case brief

AI extract

What is this about?

The Tribunal allowed an Original Application filed by Kotak Mahindra Bank Ltd. for recovery of Rs. 46,86,591 along with interest from the principal borrowers, directing them to pay within 60 days or face recovery from the sale of mortgaged assets.

What did the court decide?

Direct payment of Rs. 46,86,591 plus 11% p.a. interest within 60 days; recovery from sale of mortgaged assets if not paid; direction not to deal with properties.

Kotak Mahindra Bank Limited versus Hira — Banking and Recovery | DRT (2023)

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OA 193 of 2022

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Registered on:-13.05.2022

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Decided on:-23.08.2023

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IN THE DEBT RECOVERY TRIBUNAL-I AT MUMBAI ORIGINAL APPLICATION NO. 193 of 2022

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KOTAK MAHINDRA BANK LTD., ) A Banking Company governed by the )

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A Banking Company governed by the ) Companies Act, 1956 and carrying on Banking) Business under the Banking Regulation Act, ) 1949 and having its Registered & Corporate ) Office, at 27 BKC, C/27, G Block, Bandra ) Kurla Complex, Bandra (East), Mumbai ) 400 051 and having branch Address at 5^th ) Floor, Adamas Plaza, CST Road, Kalina, ) Santacruz East, Mumbai- 400 098 )

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... APPLICANT

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Versus

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MR. HIRA SUNDERDAS BULANI, ) residing at Flat No. 22, D-23, ) Radha Nagar, Kadak Pada, Kalyan (W) ) Thane 421 301 AND/OR

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4/5/6, Sai Sadguru Apartment, Birla ) College Road, Kalyan (W), Thane 421301) AND/OR

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Flat No. 703, 7^th Floor, “C” Wing, ) Athiana Building, Tycoon’s Residency, ) Opp. KDMC, “B” Ward Office, Club ) Road, Barave, Kalyan (W), Thane 421301)

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MR. SHIVAR HIRA BULANI ) Residing Flat No. 22, D-23, Radha Nagar) Kadak Pada, Kalyan (W), Thane 421 301) AND/OR

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4/5/6, Sai Sadguru Apartment, Birla )

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Page 1 of 8

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OA 193 of 2022

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College Road, Kalyan (W), Thane 421301) AND/OR

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Flat No. 703, 7^th Floor, “C” Wing, ) Athiana Building, Tycoon’s Residency, ) Opp. KDMC, “B” Ward Office, Club ) Road, Barave, Kalyan (W), Thane 421301)

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MR. PRAKASH KHUSHALDAS GANDHI ) Residing at Flat No. 703, 7^th Floor, “C” ) Wing, Athiana Building, Tycoon’s ) Residency, Opp. KDMC, “B” Ward ) Office, Club Road, Barave, Kalyan (W), ) Thane 421301 )

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MRS. NAMRATA PRAKASH GANDHI ) Residing at Flat No. 703, 7^th Floor, “C” ) Wing, Athiana Building, Tycoon’s ) Residency, Opp. KDMC, “B” Ward ) Office, Club Road, Barave, Kalyan (W), ) Thane 421301 )

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…DEFENDANTS

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________________________________________________________________ Counsel for the Applicant : Advocate Shobha Chavan i/b V. Deshpande

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Counsel for Defendant No. 1 & 2: Ex-parte Counsel for Defendant No. 3 & 4: None

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J U D G M E N T

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The Applicant has filed the present Original Application for recovery of Rs.46,86,591/- (Rupees Forty Six Lakhs Eighty Six Thousand Five Hundred Ninety One only) from the Defendant No.1 & 2, along with further interest @ 11% p.a. from 12.11.2021 till its realization.

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Page 2 of 8

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OA 193 of 2022

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Facts as succinctly set out in the OA are that the Defendant No. 1 and 2 are the principal borrower/co-borrower who had availed the housing loan facility initially form Citi Financial Consumer Finance India Ltd. (CFCFIL) which in turn stand assigned to the Applicant herein. Defendant No. 3 & 4 claims to be the bonafide Purchaser of the Applicants secured assets thus, they are impleaded as a necessary and formal party in the present OA. However, no relief of any nature whatsoever has been sought against the Defendant No. 3 & 4.

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It is stated that Defendant No. 1 at all material time is seized and possessed of and/ or otherwise well and sufficiently entitled to Flat No. 703, admeasuring at about 1334 sq. ft (built up) adjoining terrace of about 60sqft on 7^th Floor, “C” Wing, Athiana Building, Survey No. 61/1 (p) Scheme, Tycoon’s Residency, Opp. KDMC, “B” Ward Office, Club Road, Barave, Kalyan (W), Thane 421301.

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It is stated that under a valid and subsisting Agreement of Assignment dated 31.10.2012, the CFCFIL assigned its debts payable by the Defendant No.1 & 2 in favour of the Applicant.

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The Applicant stated that in or about October, 20026, the Defendant No. 1 and 2 approached the CFCFIL, with a request for housing loan facility. Pursuant to the said request, the CFCFIL agreed and granted Rs.18,54,000/- to the Defendant No. 1 & 2.

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Page 3 of 8

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OA 193 of 2022

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In consideration of sanction the said loan, the Defendant No. 1 & 2 executed the following loaning and security documents on 27.10.2006:

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i. Home Loan Agreement

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ii. Undertaking

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iii. Power of Attorney

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iv. Unstamped Declaration

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As per the terms of the sanction and as per the terms of the Home Loan Agreement, the Defendant No.1 & 2 agreed to repay the said loan in 180 EMIs of Rs.21,073/ and the last instalment was due and payable in October, 2021-.

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Further, in order to secure the repayment of the aforesaid facility, the Defendant No.1 has delivered and deposited with the CFCFIL all the original title deeds with an intention to create mortgage by simple delivery of title deeds in respect of his right, title and interest in his property viz. Flat No. 703, admeasuring at about 1334 sq. ft. (built up) adjoining terrace of about 60 sq. ft. on 7^th floor, “C”, Wing, Athiana Building, Survey No. 61/1 (p) Scheme, Tycoon’s Residency, Opp. KDMC, “B” Ward Office, Club Road, Barave, Kalyan (W), Thane 421 301, and further deposited the following documents with the CFCFIL in respect of the aforesaid flat/premises:

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i. Original Agreement for sale dated 28.07.2006.

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ii. Original Letter of Permission to Mortgage dated 26.10.2006.

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Page 4 of 8

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OA 193 of 2022

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iii. Original Demand Letter dated 26.10.2006.

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iv. Original Advance Payment receipt dated 30.10.2006 for Rs. 3,64,800/-though cheque.

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However, after availing the aforesaid Housing Loan Facilty from CFCFIL, the Defendant No.1 & 2 failed to honour their commitment and to perform the terms and conditions of the sanction. Thus, the loan account was declared as NPA and the CFCFIL filed Arbitral Reference before the Sole Arbitrator Mr. Satish Kumar, New Delhi and the Ld. Sole Arbitrator on 31.07.2008 passed the award against the Defendant No.1 & 2 and directed them to pay Rs.20,71,186.14 to the CFCFIL with interest @11% p.a. w.e.f. 22.08.2007 till payment.

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Thereafter, the loan was assigned by CFCFIL in favour of the Applicant vide Assignment Agreement dated 31.10.2012. The CFCFIL vide its letter dated 12.11.2012 also informed the Defendant No.1 & 2 about the said assignment and directed them to make all further payment under the said housing loan facility to the Applicant. Subsequently, the Applicant invoked provisions under SARFAESI Act, 2002 and issued notice under Section 13(2) of the SARFAESI Act, 2002 dated 21.03.2013 and called upon the Defendant No.1 & 2 to pay the outstanding amount but they failed to pay the dues. Thereafter, the Applicant filed Application under Section 14 of the SARFAESI Act, 2002 before the Ld. District Magistrate, Thane and Ld. Magistrate vide order dated 02.01.2016 allowed the said application and directed Tahasildar Kalyan to take possession of the secured assets and handover the same to the Authorized Officer of the Applicant. Being aggrieved by the aforesaid action, the

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Page 5 of 8

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OA 193 of 2022

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Defendant No.3 & 4 filed an SA No.151/2017 before this Tribunal and claiming to be the bonafide purchaser of the secured assets claiming that they have purchased the same from Mrs. Karishma Anil Jaisinghani under the registered agreement of sale dated 08.06.2010 and the said Mrs. Karishma Anil Jaisinghani claims to have purchased the aforesaid secured assets from Defendant No.1 under the registered Agreement for sale dated 16.09.2009. It is stated that the said SA is pending before this Tribunal. It is stated that the Applicant has left with no other option but to approach this Tribunal for recovery of its dues, thus, the present OA has been filed.

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Notices were issued to the Defendants. Despite service, no one appeared for the Defendant No. 1 & 2 nor filed the WS thus, they were proceeded ex-parte in terms of order dated 09.06.2023. Defendant No.3 & 4 put their appearance and filed vakalatnama however, no WS has been filed and after 27.09.2022 no one appeared for the Defendant No.3 & 4.

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The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed through their Authorised Signatory of the Applicant Pushkar Dani.

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I have heard the Ld. Counsel for the Applicant Bank and perused the record.

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The witness of the Applicant and has fully corroborated the averments made in the OA. Even otherwise the whole case of the

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Page 6 of 8

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OA 193 of 2022

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Applicant Bank is based on documents and the witness has fully proved all these documents as against the Defendants. In my view there is no question of disbelieving the evidence led by the Applicant Bank and the Applicant Bank has proved its case beyond reasonable doubt. The liability of Defendant No.1 & 2 is joint and several. No monetary relief is prayed by the Applicant against the Defendant No.3 & 4.

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In the light of above discussions, the Original Application deserves to be allowed against the Defendant No.1 & 2.

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O R D E R

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i. The present OA is hereby allowed and Defendant No. 1 & 2 are hereby directed to pay to the Applicant, within a period of 60 days, a sum of Rs.46,86,591/- (Rupees Forty Six Lakhs Eighty Six Thousand Five Hundred Ninety One only), along with further interest @ 11% p.a. from 12.11.2021 till its realization.

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ii. Failing which the aforesaid amount shall be recovered from the sale of mortgaged property as well as other personal moveable and immoveable assets of the Defendant No.1 & 2.

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iii. Defendant No.1 & 2 are hereby directed not to deal with their properties till further direction of Ld. Recovery Officer.

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iv. Defendant No.1 & 2 shall also pay the cost and expenses of the OA.

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Page 7 of 8

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OA 193 of 2022

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v. Recovery Certificate be issued forthwith and be sent to the Recovery Officer of this Tribunal.

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Copy of this order be sent to the parties as per rules.

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File be consigned to record.

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Place: Mumbai. (Dr. Rekha G. Dhakar) Date :23.08.2023 Presiding Officer, DRT-1, Mumbai.

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Tjs/-

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Page 8 of 8

Kotak Mahindra Bank Limited v. Hira

Case brief

What is this about?

What did the court decide?

Kotak Mahindra Bank Limited v. Hira

Case brief

What is this about?

What did the court decide?

What the court decided

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