Dismissed

Kiran Sharma v. Icici House Finance Company Limited

DRT15 Nov 2023SA/270/2023

Case brief

AI extract

What is this about?

In this securitisation application under the SARFAESI Act, the legal heirs of a deceased borrower challenged the eligibility of the Tribunal to entertain the matter and argued that the Financial Institution (FI) could not unilaterally adjust insurance reimbursement amounts towards the outstanding loan. The Tribunal held that the argument regarding the voidness of possession against a deceased borrower was not pleaded and thus not considered. The FI's right to adjust insurance proceeds and necessity of a Section 13(3A) notice for such adjustment was accepted. The application was dismissed.

What did the court decide?

Application dismissed with costs.

Kiran Sharma versus Icici House Finance Company Limited — Banking and Recovery | DRT (2023)

¶1

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

¶2

SECURITISATION APPLICATION NO.270/2023

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DATE OF INSTITUTION: 11.10.2023

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DATE OF DECISION: 15^th DAY OF NOVEMBER, 2023

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Smt. Kiran Sharma aged about 42 years w/o late Sh. Pardeep Kumar Sharma r/o House No. 108, Gandhi Dham Colony, JagadhariHundewala, District Yamunanagar, Haryana

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Ms Pranjali Sharma d/o late Sh. Pardeep Kumar Sharma r/o House No. 108, Gandhi Dham Colony, Jagadhari-Hundewala, District Yamunanagar, Haryana

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Sh. Siddhant Sharma s/o late Sh. Pardeep Kumar Sharma r/o House No. 108, Gandhi Dham Colony, Jagadhari-Hundewala, District Yamunanagar, Haryana

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….. Applicants

¶9

Versus

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ICICI House Finance Company Limited, Corporate Office: ICICI Bank Towers, Bandra-Kurla Complex, Mumbai-400051, through its Authorised Officer

¶11

Also at: ICICI Home Finance Company Limited, Branch Office: SCO No. 121, Sector-17, First Floor, Commercial Belt, Jagadhari Road, Yamunanagar, District Yamunanagar, through its Authorised Officer

¶12

…..Respondents

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Argued by: Sh. Atul Sharma Advocate for the applicants (SA) (through VC) Sh. Sandeep Suri Advocate for the respondent (through VC)

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FINAL ORDER

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This Securitisation Application has been filed under Section 17(1) of the Securitisation and Reconstruction of Financial Assets and

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SA/270/2023 KIRAN SHARMA AND OTHERS VS ICICI HOUSE FINACE COMPANY LIMITED AND OTHERS 2

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Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act’ for brevity).

¶18

In brief, it is the case of the applicants that the husband of the applicant namely, Sh. Pardeep Kumar Sharma had taken loan of Rs. 30 lac, total tenure of which was 210 months and EMIs of the loan were Rs. 35,620/-; that the residential property in question was having House No. C-7/108, Gandhi Dham Colony, Jagadhari; that at the time of sanctioning the loan, the official of the respondent FI had assured the husband of the applicant that in case of death, the Insurance Company would pay the loan amount which was fully secured by the insurance and same would be paid to the applicants; that the husband of applicant No. 1 had died on 19.05.2022; that demand notice under Section 13(2) of the Act was issued on 22.12.2021 demanding outstanding dues of Rs. 32,04,604/-; that unilaterally the respondent FI had adjusted Rs. 6,74,831.50/- which was in the loan account of the applicants only showing………. it to be the beneficiary of the insurance policy and the respondent FI had obtained the order for taking physical possession as on 16.11.2023.

¶19

Reply to the SA has been filed wherein inter alia it was contended that the Insurance Company after death of the borrower, Sh. Pardeep Kumar Sharma had disbursed the total amount of Rs. 6,74,800/- in the loan accounts of the applicants; that the total outstanding amount on 08.11.2023 was Rs. 71,28,000/-; that the applicants had taken policy from Life Insurance Company for a sum of Rs. 9,54,500/-; that the policy which was taken was for a miniscule amount compared to the loan facility availed of by the applicants; that the balance amount for the payment of the amount payable under the insurance was liable to be paid by the borrowers and the guarantors in the eventuality of default; that there was no challenge to the procedure adopted by the respondent and notice under Sections 13(2) and 13(4) of the Act which were issued were duly served upon the applicants. Rest of the averments made in the SA were also denied in reply to the SA.

¶20

I have heard both the sides and also gone through the record carefully.

¶21

Sh. Atul Sharma Advocate stated that the synopsis filed by him might be taken into account for the purpose of arguments.

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SA/270/2023 KIRAN SHARMA AND OTHERS VS ICICI HOUSE FINACE COMPANY LIMITED AND OTHERS 3

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It was contended in the synopsis that the order of possession was obtained against a dead person which was void ab initio .

¶24

It was argued by Sh. Sandeep Suri Advocate that this ground was not pleaded in the SA. In the facts and circumstances of the case, this Tribunal is of the considered opinion that the respondent cannot be allowed to be taken by a surprise and for building up an argument, the case has to be so pleaded by a party and that not being the case, this contention is of no consequence.

¶25

It was further contended in the synopsis that the financed amount was secured by Life Insurance Policy and loan security policy too. It was argued by the learned counsel for the respondent FI that apart from the life insurance policy produced on behalf of the applicants, there was also loan security policy. It was argued by Sh. Sandeep Suri Advocate that security policy was issued by ICICI Prudential Life Insurance Company and the same was Annexure A9.

¶26

Annexure A9 says that the same related to the policy of Sh. Pardeep Kumar Sharma and insurance certificate and details of the policy benefits were enclosed with the same. In these circumstances, this is not an independent document and it relates to the life insurance policy only.

¶27

It is further the case of the applicants that the option of availing of remedy of consideration of being heard in terms of Section 13(3)(A) of the Act was snatched by the respondent FI as the respondent FI never gave any opportunity prior to adjusting the amount unilaterally from the insurance reimbursement. Sh. Sandeep Suri Advocate drew attention of this Tribunal towards document R1 and argued that item delivery was confirmed on 31.12.2021 and thus, there was no doubt about the receipt of the notice which provided an opportunity of being heard in terms of Section 13(3)(A) of the Act. It was further argued by Sh. Sandeep Suri Advocate that when the money was received from the Insurance Company, it was adjusted towards the amount and for that, no notice was required to be served upon the applicants. In the facts and circumstances of the case, this

¶28

SA/270/2023 KIRAN SHARMA AND OTHERS VS ICICI HOUSE FINACE COMPANY LIMITED AND OTHERS 4

¶29

Tribunal is in agreement with the contention of Sh. Sandeep Suri Advocate.

¶30

It was also contended in the synopsis that if the applicants were given the right to utilise the amount, they would have cleared out the loan hundred percent and also the over dues in the account within the terms of payment as per the guidelines of the RBI dated 05.05.2021.

¶31

Learned counsel for the respondent FI argued that the above said argument was not a part of the pleadings. In the synopsis, it was mentioned that copy of the RBI guidelines dated 05.05.2021 was attached with the synopsis but nothing of that sort was attached with the synopsis. Without any pleadings to that effect these aspects cannot be raised at the time of arguments. Moreover, when the respondent FI was within its right to adjust the overdue amount as per its own choice, there is hardly any substance in this contention. It also needs to be mentioned here that there was no Tripartite agreement among the parties to the SA and Insurance Company.

¶32

No other point urged before this Tribunal.

¶33

In the facts and circumstances of the case, there is no merit in this SA. Same is dismissed hereby with costs.

¶34

Pronounced in the open Tribunal

¶35

(M.M. Dhonchak) Presiding Officer DRT-2, Chandigarh

Kiran Sharma v. Icici House Finance Company Limited

Case brief

What is this about?

What did the court decide?

Kiran Sharma v. Icici House Finance Company Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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