Allowed

Icici Bank Limited v. Sh. Surander Tanwar

DRT13 Dec 2023OA/2213/2022

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal allowed the bank's application against a husband and wife (D-1, D-2) and property dealer (D-3) for recovery of an unpaid housing loan. The court fixed interest at 7% per annum instead of the claimed rate and directed D-3 to hand over title deeds to secure the asset.

What did the court decide?

Recovery of Rs. 32,38,192/- with 7% simple interest from filing; direction to third respondent to hand over flat title deeds; Recovery Certificate issued.

Icici Bank Limited versus Sh. Surander Tanwar — Specific Performance | DRT (2023)

¶1

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

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ORIGINAL APPLICATION NO. 2213/2022

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DATE OF INSTITUTION: 28.11.2022

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DATE OF DECISION: 13^th DAY OF DECEMBER, 2023

¶5

ICICI Bank Limited , a body corporate, incorporated under the Companies Act, 1956 and 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, Mumbai400051 and Branches all over India and one of its Branches at First Floor, Near N.K. Sharma office, Chandigarh-Ambala National Highway, Zirakpur, District SAS Nagar, Punjab, through its Authorised Signatory, Mohammad Vajid

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…..Applicant

¶7

Versus

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Sh. Surander Tanwar s/o Sh. Beer Singh Tanwar r/o House No. 89, S.F.F., I.P. Colony, Sector 30-33, Amar Nagar, Faridabad Haryana-121003

¶9

Second Address: c/o Ganpati Cable T.V. N/W, House No. 1560, Rajiv Nagar, Faridabad, Haryana-121003

¶10

Smt. Sunita w/o Sh. Surander Tanwar r/o House No. 89, S.F.F., I.P. Colony, Sector 30-33, Amar Nagar, Faridabad, Haryana121003

¶11

M/s Ferrous Infrastructure Private Limited, having its registered office at Plot No. 34, Behind Devender Vihar, Sector-56, Gurugram, Haryana-122011

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OA/2213/2022 ICICI BANK LIMITED Vs SURANDER TANWAR AND OTHERS 2

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…..Defendants

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Argued by: Sh. Rahul Garg counsel for the applicant bank Defendants ex parte vide order dated 11.09.2023

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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.32,38,192/- (Rupees Thirty Two Lac Thirty Eight Thousand One Hundred and Ninety Two Only) . It has been filed through Sh. Mohammad Vajid, Authorised Signatory of the applicant bank stated to be competent to institute the Original Application vide Power of Attorney dated 18.09.2019, Annexure-A1 (copy).

¶17

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 Housing Loan facility of Rs. 24,00,000/- vide application Form, Annexure-A2 (copy) which was further enhanced to Rs. 25,43,000/- vide facility agreement dated

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26.12.2016, Annexure-A4 (copy).

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The applicant bank sanctioned aforesaid facility to defendant Nos. 1 and 2 vide letter dated 18.11.2016, Annexure-A3 (copy), as per terms and conditions which were duly accepted by the defendants. 4. In order to secure the aforementioned credit facility, defendant Nos. 1 and 2 executed flat buyer agreement dated 22.12.2016,

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Annexure-A5 (copy).

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OA/2213/2022 ICICI BANK LIMITED Vs SURANDER TANWAR AND OTHERS 3

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The aforesaid loan was further secured by creation of mortgage by defendant No. 1 in respect of residential Flat No. D-0001, measuring 1260 Square Feet situated at Sector-89, Faridabad, Haryana, fully detailed in para No.5(v) of the Original Application. Letter dated 21.12.2016 regarding permission to mortgage of flat is Annexure-A6 (copy).

¶23

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 31.08.2018. The applicant bank recalled entire outstanding amount vide loan recall notices dated 26.11.2018 along with postal receipts, Annexures-A7 and A8 (colly) (copy), but to no avail.

¶24

It is further the case of the applicant bank that after adjusting debit and credit entries in the loan account, a sum of Rs.32,38,192/-

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(Rupees Thirty Two Lac Thirty Eight Thousand One Hundred and

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Ninety Two Only), is recoverable against defendant Nos. 1 and 2 as per statement of account, Annexure-A9 (copy), duly certified under Bankers’ Books Evidence Act, 1891.

¶27

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 ex parte vide order dated 11.09.2023 .

¶28

In support of the contents of the OA, affidavit of evidence of

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Sh. Mohammad Vajid, Authorised Signatory of the applicant bank was filed.

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OA/2213/2022 ICICI BANK LIMITED Vs SURANDER TANWAR AND OTHERS 4

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

¶32

It was argued by the learned counsel 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 A9 , 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 defendants had 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.32,38,192/- (Rupees Thirty Two Lac Thirty Eight Thousand One Hundred and Ninety Two Only)

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from defendant Nos. 1 and 2.

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In so far as pendente lite and future interest is concerned, the applicant bank has claimed rate of interest @24% per annum. In sanction letter dated 18.11.2016, Annexure-A3 (copy), rate of interest has been mentioned @9.20% per annum with monthly rests.

¶35

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 Covid19 affecting businesses, nature of the mortgaged property, purpose of loan, i.e. housing , quantum of loan, prevalent market rates of

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OA/2213/2022 ICICI BANK LIMITED Vs SURANDER TANWAR AND OTHERS 5

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interest which have gone drastically downhill in yesteryears and defendant No. 2 being a female, while exercising the discretion vested in 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.

¶38

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.

¶39

In the result, the Original Application is allowed with costs declaring that defendant Nos. 1 and 2 are liable to pay to the applicant bank a sum of Rs.32,38,192/- (Rupees Thirty Two Lac Thirty Eight Thousand One Hundred and Ninety Two Only) with current and future simple interest @7% per annum w.e.f. 28.11.2022 , 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

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OA/2213/2022 ICICI BANK LIMITED Vs SURANDER TANWAR AND OTHERS 6

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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.

¶42

Issue Recovery Certificate accordingly.

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Parties to appear before Recovery Officer concerned on

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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.

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

Icici Bank Limited v. Sh. Surander Tanwar

Case brief

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Icici Bank Limited v. Sh. Surander Tanwar

Case brief

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