Allowed

Icici Bank Limited v. Mr Arup Saikia

DRT14 Dec 2023OA/23/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal allowed an application filed by ICICI Bank Limited for the issuance of a Recovery Certificate against two borrowers who defaulted on a Kisan Credit Card loan, holding them jointly and severally liable for the outstanding amount with future interest.

What did the court decide?

Issuance of Recovery Certificate for Rs. 43,27,524.82 plus interest and costs; charge kept alive on mortgaged and hypothecated properties.

Icici Bank Limited versus Mr Arup Saikia — Contract and Commercial Disputes | DRT (2023)

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O.A. 231202ZDRT-Guwahatr

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IN THE DEBTS^{RECOVERYTRIBUNAL, GUWAHATI}

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(North Eastern Region) (Tribunal ofAssam,^{Nagaland,M;ghalaya,I\ anipur, Mrzoram, Arunachal Pradesh& Tripura)} Before Shri Shiv^{Sharan Dubev.PresidinqOfficer}

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O.A. No. 23/2022

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ln the mafter^of -

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ICICI BANK^LIMITED MaMari Patty,^{lst Floor, MDS Building,} Jorhat-785001,^Assam

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Applicant

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Vs.

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MR ARUP SAIKIA Son of Umaram^Saikia Resident of Naharchala,^P.O.Bokial PS-Golaghat, Golaghat' Assam-785613.

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MRS. RIJUMONI^SAIKIA Wife of Arup^Saikia Resident of^{Naharchala, P.O. Bokial} PS-Golaghat, Golaghat, Assam-785613.

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Defendants

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Presence ot the^Counsel:

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: Mr. Mukesh Sharma,^Advocate For the Applicant For the Defendants : None (Ex-Parte)

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Daled :1411212023

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JUDGMENT

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This is an application^{under section 19 of the Recoveryof Oebts Due to Banks} and Financial^{lnstitutionsAct,1993 filed by the lclcl Bank Limited, Marwari Patty'1"1} Floor. MDS^{Building, Jorhat-785001, Assam' with a prayer to issueRecovery} Certificate^{for the sum of Rs.43,27,524.82(Rupeos Forty-ThreeLakhs Twenty-} Soven Thousand^{Five HundredTwenty'Fourand Paise Eighty-Tvro)onlyas on} 2o.11'2o2lagainstthedefendantswithfutureinterestatthecontractualratewith monthly rests titl^{realization along with cost and otherrelief'}

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A few facts^{givingriseto the presentapplic^tion areas under'} ^, . - r n* uff;f#l

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Pr6iding Oficer DRT, Guwahati

The defendants had approached the Applicant Bank and applied for financial assistance for Kisan Credit Card herein referred as KCC, vide application dated 22.07.2015 stating that they requires financial assistance for meeting their agricultural requirements and also stated that they would repay the loan amount without any demure, objection or failure and would create charge over a piece of land of the defendants and as well as hypothecation of tea crop, machines, etc. and upon verification of the said documents and considering the application of the defendants, the Applicant Bank vide Sanction Letter dated 22.08.2015 agreed to sanction and disburse to the Defendants KCC Loan for meeting their agricultural requirement inter-alia on the following terms:

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a. The Applicant Bank would^grant and disburEe to the Defendant KCC Loan for meeting their agicultural requirement for a span of 5 years. The aggregate amount of the enlire limit as specified in the Sanclion Letter is Rs.49,04,600.00 (Rupees Forty-Nine Lacs Four Thousand Six Hundred) only, however, for the first year an aggregate amount of Rs.33,50,000.00 (Rupees Thirty-Three Lakhs Fifty Thousand) only was disbursed to the Defendants as^per their agricultural requirement.

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b. The defendants herein created charge in favor of the applicant bank against the land which are more fully described in Schedule A of the OA.

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c. The defendants herein executed a Deed of Hypothecation in favor of the Applicant Bank^(hereinafter referred to as^{"hypothecation} Deed"), thereby creating a first charge on its stocks of crops^(Tea) which are more fully described in Schedule B of the OA.

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d. The^parties enter into agreement for loan and the^{defendantswould be required} to^pay the interest twice every^{year in} the^{month of April and October under the} said agreement.

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e. The Defendants would strictly adhere^{to the re-payment scheduleby making} timely payment of equated monthly installments to the^{ApplicantBank under a rate} il,'i"!/*ro'-),t, IA.li.,o /lr Presiding Oftcsr^{^ ;)} v DRT, Gu\rahati

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o.A. 23l2022loRT€wahati

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of interest @12.O0Yo per annum (MCLR 9.300/0 + margin of 2.70yol ot as applicable at the time of disbursement.

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f. ln the event, the Defendant fails to adhere to the repayment schedule specified in the loan agreemenls the applicant bank in its discretion would be at liberty to recallthe loan facility forthwith and demand the outstanding from the defendants.

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g. The Applicant Bank would be furlher at liberty to take possession of the said land and hypothecated crop, machinery etc. upon default in making repayment of the loan amount and dispose of the same in^protanto satisfaction of its dues as against the Defendant.

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ln connection with the sanction of the aforesaid KCC Loan of Rs.49,04,600.00 (Rupees Forty-Nine Lacs Four Thousand Six Hundred) only sanclioned by the Applicant Bank and availed of by the Defendants, the Defendants had created charge over their immovable^property being all that^part and parcel of Land measuring 50 Bighas, covered by Dag No.l44711 of K. P. Patta No.75 of village Boranuria NC, under Mouza-East Rengma, Circle-Silonijan, District Karbi Anglong, Assam-together with all buildings and structure standing thereon and all that^part and^parcel of Land measuring 80 Bighas, covered by Dag No.45/2 of K. P. Patta No.29 of village Nambar NC, under Mouza-East Rengma, CircleSilonijan, District Karbi Anglong,^{Assam- togetherwith all buildings and structure} standing thereon, more fully described in schedule^{A and schedule B of the OA.} Accordingly, the Defendants had delivered all the title^documents of^their immovable^property in favor of the applicant bank as security^{for repayment of the} loan facilities. The Defendant No.1 and 2 had conflrmed the^{creation of chargedby} executing a Deed of Declaration and Schedule^{dated 20.08.2015 in favor of the} Applicant Bank and the applicant bank^{have prepared} a^{Memorandum of Entry} dated 20.08.2015 regarding deposit of Title^Deeds.

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The defendants had availed the said^{loan facilities from} lhe^applicant bank but have not^paid the outstanding^{loanamountas perterms and conditions as} asreed upon with the appticant bank,ⁱⁿ spite^{of repsated demandsand}

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ffiiril._|,5,^q.,r. ".."'o,nn DRT, Guwahati^{tt,l1 )1}

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o a 23t2o22toRis*nati

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appricant bank. As the defen dants failed to repay the loan amount, the said loan accounts became NpA on 31.0g.2021. After the account became NpA the applicant bank issued notices for repayment of the due amount, but the defendants failed to repay the loan amount.

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The applicant bank thus became constmined to ,ile the present Original Application for the recovery of Rs. 43,2r,s24.02 (Rupaes Forty_Threo Lakhs TwentySoven Thousand Five Hundred Twenty_Four and paise Eighty-Two) only as on 20.1'l .2021 atong with interest and cost of the application.

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After liling of the OA the Tribunal issued notices upon the defendanls through registered post and lhe applicant bank filed service report on 12.OS.2O22and brought on record the postal receipts along with track consignment report which shows that notices have not been served upon the defendants. Thereafter the Tribunal ordered paper pubrication of nolice upon the defendants and the appricant bank issued notice to the defendants on^.16.06.2022 through paper publication in two newspapers namely "The Assam Tibune,,and "Dainik Assam,,. Even after issuan@ of notice through paper publication also there was no representation on behalf of the defendants either by the counsel or the person and hence the defendants were sel ex_parte on O4_Og_2022 and their right to fire written statement cum evidence on affidavit was crosed and the matter was listed for hearing on behalf ofthe applicant bank.

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Supporting the claim of the appticant bank Mr. Arbasin Hazadka, Oebt Manager & Authorized Signatory of the Appticant Bank has filed eviCence on affidavit coupled with the security documents marked as Exhibit p, AW_1/.1 to AW-i/l2 supporting the claim of the applicant bank.

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Heard the learned counsel for the applicant bank who prayed for issuance of Recovery Certificate against lhe defendants as per pleadings made in the Application, supported by evidence on affidavit of their witness who affirmed on oath the execution of the security and other documents by the defendants and arso execution of their own documents relied upon, which have been marked exhibits.

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Sl.i, l-gl"o'.n' 0"L,. r p,"siirngoffif* lL']3 0 DRT, Guuahati

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o.A 2!2o2zDRT-cueahari

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Considering the facts and circumstances ot the case, I am of the considered view that the document filed by the applicant bank are supporting the claim of the applicant bank and estabrishing the riabirity of the defendants. rt is proved that the defendants are jointly and severally liable to pay to the applicant bank the claim made in the Original Application. The loan was obtained and documents have been executed on 20.08.2015. Moreover, afrer perusing the documents on record and taking into consideratjon of the facG and circumstances oflhe case, I find that the mortgage has been created by the defendant No. l & 2 where the limitation available is for 12 years and as such tiaking into account of the creation of the mortgage the applic€tion appears to have been filed well within the period of limitation. The account became NpA on 31.08.2021 and the OA has been fited on 29.01.2022. Hence, the OA is fited well within the period of limitation and this Tribunal having a jurisdiction to adjudicate the Original Application.

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Considering the unchallenged/unrebutted version of Mr. Arbasin Hazarika, the applicant's witness and all the documents marked as exhibits, including duly certiried copy of the statement of account along with interest calculation sheet maintained by the applicant Bank in it's regular course of business, I hold that the applicant is entitled to get the Recovery Certificate as prayed for.

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ln the result, the present Originat Apptication No.23 ot 2OZ2 is altowed with cost as under: -

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(i) The defendants No. 1 & 2 are join y and severally liable to pay to the applicant bank a sum of Rs. 43,Zl,S24.gZ (Rupees Forty-Three Lakhs Twenty-Seven Thousand Five Hundred Twenty-Four and paise Eighty_ Two) only with pendentelite and future interest @12% p.a. with monthly rests trcm 21.11 .2021 till the date of full paymenurealization and also cost of the application.

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ii) The charge of the certificated amount be kept alive on mortgaged property i.e. all that part and parcel of Land measuring 50 Bighas, covered by Dag No.

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S'l^i.da-.a, !,.J"., 14 tv)? ll Presic,ing Ohcer^' ----2^| ORT, Guwehali

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O.A 23l2o2zDRT-cuwihali

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1447h ot K p.patta No. 75 0f virage Boranuria Nc under Mouza_ East Rengma, Circle- Silonijan, Oistrict Karbi Anglong, Assam, together wath all building and structure standing thereon, as described in schedure-A of the oA till the amount is realized in full.

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iii) The charge of the certmcated amount be kept alive on mortgaged propeny i.e. all that part and parcel of Land measuring 60 Bighas, covered by Dag No. 4512 of K.p.pafia No. 29 of village Nambar NC under Mouza- East Rengma, Circle- Silonijan, District Karbi Anglong, Assam, together with a[ building and structure standing thereon, as described in Schedule_B of the OA till the amount is realized in full.

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iv) The charge of the certiricated amount be kept alive on hypothecated properties, as described in Schedule_C of the OA till the amount is realized in full.

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v) The applicant bank is enti(ed to proceed against the secured items towards recovery of the debts.

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vi) The applicant bank is also entiUed to proceed against the personal assets and properties oflhe defendants towards recovery of the dues.

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vii) The applicant bank is entifled to the costs ofthe O.A. which includes the advocate fees of the appricant bank. Appricant is directed io ,ire the cost memo within 2 weeks from today.

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viii) lssue Recovery Certificate accordingly for a sum Rs. 43,27,524.82 (Rupees Forty-Threo Lakhs Twenty_Seven Thousand Five Hundred Tyuonty-Four and Paise Eighty_Two) only in favour of the applicant bank against the defendants No. 1&2.

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ix) Communicate copy of this order to the concerned parties. This order is dictated and corrected by the undercigned.

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Judgment dated 14ti December 2023, signed and pronounced in the Tribunal today under my signalure.

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Copy of the JudgmenuFinal Order be uptoaded in the Tribunal's Website and file be mnsigned lo Record Room.

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Slul!{a,a., fotl.t 14.l).)3 I lShiv Sheran'Dubdy)^-- Presiding Orricer ORT, cuwahati.

Icici Bank Limited v. Mr Arup Saikia

Case brief

What is this about?

What did the court decide?

Icici Bank Limited v. Mr Arup Saikia

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

Parties & counsel

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