Allowed

Icici Bank Limited v. Mr Hasan Farhaz

DRT5 Dec 2023OA/273/2022

Case brief

AI extract

What is this about?

This is an original application filed by ICICI Bank Limited seeking a Recovery Certificate against borrowers who defaulted on a Kisan Credit Card loan. The Tribunal examined the loan documents, records, and unchallenged evidence. It held the borrowers jointly and severally liable, found no bar of limitation, and allowed the application to issue a Recovery Certificate.

What did the court decide?

Recovery Certificate issued for Rs. 24,70,719.78 with interest; Respondents declared jointly and severally liable; Charges kept alive on mortgaged properties.

Icici Bank Limited versus Mr Hasan Farhaz — Banking and Recovery | DRT (2023)

¶1

O A 273l2022loRT-Guwahan

¶2

IN THE DEBTS RECOVERY TRIBUNAL, GUWAHATI

¶3

(North Eastern Region)

¶4

(Tribunal ofAssam, Nagaland, Meghalaya, Manipur, Mizoram, Arunachal Pradesh & Tripura)

¶5

Before Shri Shiv Sharan Dubev. Presidinq Officer

¶6

O.A. No.27312022

¶7

ln the matter of - ICICI BANK LIMITED Golaghat Branch, Tokani Circle, Hospital Road, Golaghat, Assam-785621.

¶8

... ................ Appticant

¶9

I. MR HASAN FARHAZ, S/o Mr. Ali Akbar lslampatty Road, Ward No.4, Golaghat, Assam-785621

¶10

MRS RUSENA AHMED, W/o Ali Akbar lslampatty Road, Ward No.4, Golaghat, Assam-785621.

¶11

MR ALI AKBAR, S/o Mr Hafiz Ali lslampatty Road, Ward No.4, Golaghat, Assam-785621

¶12

Oefendants Presence of tho Counsel: For the Applicant : Mr. Mukesh Sharma, -u Ms. Ellora Bharali, Advocates For the Defendants : Ms. Anannya Gogoi, Advocate (Right to file WS cum EA closed) Oaled :0511212023

¶13

JUDG ENT

¶14

This is an application under section 19 of the Recovery of Oebts Due lo Banks and Financial lnstitutions Act, 1993 tiled by the lclcl Bank Limited, Golaghat Branch, Tokani Circle, Hospital Road, Golaghat, Assam-785621, with a^prayer to issue Recovery Certilicate for the sum of Rs. 24,70,719.78^(Rupees Twenty-Four Lakhg

¶15

'9L' 'cl'al-'^-S"L"1 !9 12.. L! t Presiding Omcer DRT, Guwahetl

¶16

O A 273il2022lDRT4wah.tr

¶17

Soventy Thousand Seven Hundred Nineteen^{and Paise Seventy-Eight) only as} on 29.04.2022 against the defendants^{with pendentelite and futureinterestthereon at} contractual rate^per annum^{wilh monthly rests till realization alongwith cost and other} relief.

¶18

A few facts giving rise to the^{present applicationare as under.}

¶19

The defendants had approached^{the Applicant Bank and applied for financial} assistance for Kisan Credit^{Card herein referred as KCC, videapplication dated} 06.11.20'17 stating thai they^{requires financialassistancefor meeting their} agricultural requirements^{and also stated that they wouldrepay the loanamount} 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 thesaid documentsand consideringthe applicaiion of the} defendants, the Applicant^{Bank vide SanctionLetter daled 20.12.2017agreedto} sanction and disburse^{to the DefendantsKCC Loan for meeting their agricultural} requiremenl inter-alia on^{the following terms:}

¶20

a. The Applicant^{Bank would grant and disburse to the Defendant KCC Loanfor} meeting their agricultural^{requirementfor a span of 5 years. The aggregate amount} of the entire limit^{as specified in the sanctionLetteris Rs 49,20,00000 (Rupees} Forty-Nine Lacs Twenty^{Thousand) only,however,for the first year an aggregate} amount of RS.2O,OO,O0O.OO^{(RupeesTwenty Lakhs) only was disbursedto the} Oefendants as^per their^{agricultural requirement. And, for the fifth year an} aggregate amount of^{Rs.29,20,000.00(Rupees Twenty-NineLakhs Twenty} Thousand) only was^{disbursed to the Defendantsas per their agricultural} requirement.

¶21

b. The defendanls^{created charge in favor of the applicant bank against the land} which are more fully^{describedin Schedule A, B and C of the OA.}

¶22

c. The defendants^{herein executeda Deed of Hypothecationin favor of the} | Applicant Bank^{(hereinafterrBferredto as "hypothecation Deed"), therebycreating} ^ S,tiu S^t"6g4. $"..Ig Presiding 6ff&ir^{' -} 0 ORT. Guwaheti

¶23

¶24

OJt 273/2022lDRT€uwah.ri

¶25

a first charge on its stocks of crops Cfea) which Schedule O of the OA.

¶26

are more fully described in

¶27

d. The parties enter into agreement for loan and the defendants would be required to pay the interest annually under the said agreement.

¶28

e. The Defendants would stricfly adhere to the re-payment schedule by making paymenl of equated monthly installments to the Applicant Bank under a rate of interesl @1 1.50% per annum (I-MCLR ty is 9.2% and spread is 3.3%) or as applicable at the time of disbursement.

¶29

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

¶30

9.^{The Applicant Bank would} be further 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.

¶31

ln connection with the sanction of the aforesaid KCC Loan of Rs.49,20,000.00 (Rupees Forty Nine Lacs Twenty Thousand) onty sanctioned 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 124 Bighas 2 Lessas, covered by Dag No.774, 778,716,775, 599, S98, 597, 601. 602, 606, 605, 604, 596, 59S, S94, 593, 590 of K. p. patta No.49O of village Fesual Gaon, Ghiladhad Mouza, District Golaghat, Assam (Schedule-A). All that part and parcel of Land measuring 135 Bighas 4 kathas 19 Lessas, covered by Oag No.7s3, 760, 759, 754, 755, 846, 835, 758, 749, t4t, 744, 743, 746, 741 ot K.P.Patta No.s12 of village Fesuat caon, chiladhari Mouza, District Golaghat, Assam.(Schedule-B). All that part and parcel of Land measuring 4 katha 3 Lessas, covered by Dag No.1176 of K. P. Patta No.350 of village Wokha Bagan, chitadhari Mouza, District Golaghat, Assam (Schedule-C).

¶32

Sli,,{$.".o..Q.J'1 6t 12."t3 l) Pr$iding Officer DRT. Guwahali

¶33

O.A. 273l2022DRT€uwahati

¶34

Accordingly, the Defendants had delivered all the title documents of their immovable property in favor of the applicant bank as security for repaymenl of the loan facilities. The Defendant No.1, 2 and 3 had confirmed the creation of charged by executing a Deed of Declaration and Schedule daled 27.'12.2017 in favor of the Applicant Bank regarding deposit of Title Oeeds.

¶35

The defendants had availed the said loan facility from the applicant bank but have not paid the outstanding loan amount as per terms and conditions as agreed upon with the applicant bank, in spite of repeated demands and request by the applicant bank. As the defendants failed to repay the loan amount, the said loan accounts became NPA on 31.01.2022. After the accounts became NPA the applicant bank issued notices for repayment of the due amount, but the defendants failed to repay the Loan amount.

¶36

The applicant bank thus became constrained to file the present Original Application for the remvery of Rs. 24,70,719.78 (Rupees Twonty-Four Lakhs Sovonty Thousand Sevsn Hundred Nineteen and Paba Ssventy-Eight) only as on 29.U.2O22 along w h interest and cost of the application.

¶37

After filing of the OA the Tribunal issued notices upon the defendants through registered post and the applicant bank filed service report on 29.09.2022 and brought on record the postal receipts along with track consignment report. The leamed counsel for defendants had appeared on the same day i.e. on 29.09.2022 and sought time for filing written statement cum evidence on affidavit. Thereafter, the case was listed on several occasion, but the written statement cum evidence on affidavit has not been tiled by the defendants. Hence, their right to file written statement cum evidence on affidavit was closed on 05.04.2023 and the matter was fixed for hearing.

¶38

Supporting the claim of the applicant bank, Arbasin Hazarika, Relationship Manager of the Applicant Bank has filed evidence on affidavit coupled with the security documents marked as Exhibit-P, Aw-lfl to AW-1/1 1 supporting the claim of the applicant bank.

¶39

-[.' u.(l.ara,,^{Q.l o^r} o t. 17, ?1 , rleslorng umcer DRT, Glwahali

¶40

O.A 27312022lDRT€ryahali

¶41

Heard the learned counsel for the applicant bank who^prayed for issuance of Recovery Certificate against the defendants as^perpleadings 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 also execution of their own documents relied upon, which have been marked exhibits.

¶42

Considering the facts and circumstances of the case, I am of the mnsidered view that the document filed by the applicant bank are supporling the claim of the applicant bank and establishing the liability of the defendants. lt 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 execuled on 27.12.2017. Moreover, afrer^perusing the documents on record and taking into consideration ofthe facts and circumstances of the case, I find that the mortgage has been created by the defendants wtrere the limitation available is for 12^years and as such taking into account of the creation of the mortgage the application appears to have b€en tiled well within the^period of limitation. The account became NPA on 31.01.2022 and the OA has been tiled on 20.07.2022. Hence, the OA is tiled well within the^periodof limitation and this Tribunal having a^jurisdiction to adjudicate^{the OriginalApplication.}

¶43

Considering the unchallenged/unrebutted^version of^{ArbasinHazarika, the} applicant's witness and all the^{documents marked as exhibits, includingduly certified} copy of the statement of account^{alongwithinterestcalculation sheet maintained by} the applicant Bank in it's regular^{course of business, I hold that the applicant is} entitled to^get the Recovery Certillcate^{as prayed for.}

¶44

ln the result, the^preseni Original Application^{No. 273 ol 2022is allowed with} cost as under:^-

¶45

i) The defendants No. 1, 2 & 3 are^{jointly and severally liableto pay to lhe} applicant bank a sum of R8.^{24,70,719.78(Rupee3Twonty-FourLakhs} Seventy Thou3and Sevsn^{Hundred Nineteen and Pai3e Ssventy'Eight)}

¶46

only with^pendentelite and^{future interest} @1'1.50%^{p.a. with monthly rests}

¶47

$;,gC.o*,.A"I'1 osl2 2] j Presiding Offcer DRT, Guvehati

¶48

O.A. 27Y2o22lDRr4ueahali

¶49

frcm 3O.M.2022 till the date of full paymenurealization and also cost of the application.

¶50

ii) The charge of the certificated amount be kept alive on mortgaged property i.e. all that part and parcel of Land measuring 124 Bighas 2 Lessas, covered by Dag No. 774, 778, 776, 775, 599, 598, 597, 601, 602, 606, 605, 6M, 596, 595, 5 , 593, 590 of K.P.Patta No. 490 of Village Fesual caon, Ghiladhari Mouza, District Golaghat, Assam, as described in Schedule-A of the OA till the amount is realized in full.

¶51

(iii) The charge of the certificated amount be kept alive on mortgaged property i.e. all that^part and parcel of Land measuring 135 Bighas 4 Kathas 19 Lessas, covered by Dag No. 753, 760, 759, 754, 755, 846, 835, 758, 749, 747, 744, 743,746,74'l of K.P.Patta No. 512 of Village Fesual Gaon, Ghiladhari Mouza, District Golaghat, Assam, as described in Schedule-B of the OA till the amount is realized in full.

¶52

(iv) The charge of the certilicated amount be kept alive on mortgaged property i.e. all that part and parcel of Land measuring 4 Kathas 3 Lessas, covered by Dag No. 1176 of K.P.Patta No. 350 of Village Wokha Bagan, Ghiladhari Mouza, District Golaghat, Assam, as described in Schedule-C of the OA ti the amount is realized in full.

¶53

(v) The charge of the cerlificated amount be kept alive on hypothecated properties as described in Schedule-D of the OA till the amount is realized in full.

¶54

(vi) The applicant bank is entitled to proceed against the secured items towards recovery of the debts.

¶55

(vii) The applicant bank is also entitled to proceed against the personal assets and properties of the defendant towards recovery of the dues.

¶56

(viii) The applicant bank is entitled to the costs of the O.A. which includes the advocate fees of the applicant bank. Applicant is directed to file the cost memo within 2 weeks from today.

¶57

s).,,i$.a.ta,.A"I"1 oJ 12.?\ U Pre3lring Oifca. DRT, GU lah.ti

¶58

¶59

c'r. 273l2022./DRT€8.hati

¶60

ix) lssue Recovery Certificate accordingly for a sum Rs. 2/t,70,7r9.78 (Rupees

¶61

Twenty+our Lakhs Sevonty Thousand Seven Hundred Nineteen and Pai3e Seventy-Eight) only in favour of the applicant bank against the

¶62

defendants No. 1, 2 & 3.

¶63

viii) Communicate copy of this order to the concerned parties.

¶64

This order is dictated and corrected by the undersigned.

¶65

Judgment dated 05s December 2023, signed and pronounced in the Tribunal today under my signature.

¶66

Copy of the JudgmenuFinat Order be uploaded in the Tribunal,s Website and file be consigned to Record Room.

¶67

S1.,,-r [.c.,a r,$,rL^t, t (shirsh.r";'lDuL1!,p I Presiding Omcor DRT, Guwahatl.

Icici Bank Limited v. Mr Hasan Farhaz

Case brief

What is this about?

What did the court decide?

Icici Bank Limited v. Mr Hasan Farhaz

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Punjab National Bank versus M/S Chetanya Industries

Shashi Kumar versus Bank of India

Punjab National Bank versus M/s Medicine Movers and others

Ms Ind Expo and Ors. versus Hdfc Bank

Punjab National Bank versus Sundar Babu Prasad & Ors.

Punjab National Bank versus Rajendra Rai and Others