Allowed

Idbi Bank v. Mr Moiem Sayed Nasir Zaidi

DRT15 Mar 2024OA/10/2023

Case brief

AI extract

What is this about?

The Tribunal allowed the Original Application filed by IDBI Bank for recovery of Rs. 42,22,521/- plus interest from borrower defendants. The claim for penal interest of 2% p.a. was declined, but interest at 8.10% p.a. directed.

What did the court decide?

Recovery of Rs. 42,22,521/- plus interest @ 8.10% p.a. with a ban on dealing with properties and issuance of recovery certificate.

Idbi Bank versus Mr Moiem Sayed Nasir Zaidi — Contract and Commercial Disputes | DRT (2024)

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OA 10 of 2023

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Registered on: 05.01.2023

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Decided on: 15.03.2024

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IN THE DEBT RECOVERY TRIBUNAL-I AT MUMBAI ORIGINAL APPLICATION NO. 10 of 2023

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IDBI BANK, A company incorporated and registered under Indian Companies Act, 1956 [1/1956] and a company within the meaning of the Companies Act, 2013 and also a banking company under section 5 (C) of Banking Regulation Act of 1949 [10/1949] and having its head office at IDBI Tower, W.T.C. Complex, Cuffe parade, Mumbai- 400 005 and one of its Retail Asset Centre (RAC) Ambernath (East) which has been shifted to Retail Recovery Department, 2^nd Floor, C Wing, Mittal Court, Nariman Point, Mumbai 400 021.

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…. APPLICANT

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VERSUS

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1. MR. MOIEM SAYED NASIR ZAIDI (Principal Borrower) i . Flat No.1601, 16^th Floor, Exotica A Wing, Casa Rio LodhaPalava city. Dombivali East, Dombivali, Maharshtra- 421204.

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ii . Flat-701, 7^th Floor, C Wing, Genevieve CHSL, Casa Rio, Gold Complex, Nilje. Kyn-Shill Road, Dombivali- 421 204.

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iii . B-203, Hajimalang Complex, Konkan Nagar, Amrut Nagar, Mumbra, Thane 400 612.

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iv . Clariant India Ltd., B Wing, 8^th Floor, Reliable Tech Park, ThaneBelapur Road, Airoli, Navi-Mumbai - 400 708

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2. MR. FAIZEE NASIR ZAIDI (CoBorrower)

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OA 10 of 2023

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i . Flat No.1601, 16^th Floor, Exotica A Wing, Casa Rio LodhaPalava city. Dombivali East, Dombivali, Maharshtra- 421204.

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ii . Flat-701, 7^th Floor, C Wing, Genevieve CHSL, Casa Rio, Gold Complex, Nilje. Kyn-Shill Road, Dombivali- 421 204.

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iii . B-203, Hajimalang Complex, Konkan Nagar, Amrut Nagar, Mumbra, Thane 400 612.

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iv . Clariant India Ltd., B Wing, 8^th Floor, Reliable Tech Park, ThaneBelapur Road, Airoli, Navi-Mumbai - 400 708

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…DEFENDANTS

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_____________________________________________ Counsel for the Applicant : Advocate Harsh G. i/b Anup Khaitan & Co.

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Counsel for the Defendants : Ex-parte

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J U D G M E N T

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The Original Application has been filed by the Applicant against the Defendants for recovery of Rs. 42,22,521/- (Rupees Forty Two Lakh Twenty Two Thousand Five Hundred Twenty One Only) as on 29.07.2022 under the Home Loan and Loan for Insurance Premium facilities with further interest as mentioned in Particulars of Claim from the date of filing of the present OA till its realisation.

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Facts as succinctly set out in the present OA are that the Defendant No. 1 is the Principal Borrower and Defendant No. 2 is Co-Borrower for the facilities availed by the Applicant.

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It is stated that upon the request made by the Defendant No. 1 & 2 for availing of Home Loan credit facility through their application dated

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OA 10 of 2023

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14.11.2019. Pursuant to the said request the Applicant vide sanction letter dated 28.11.2019 sanctioned the said Home Loan credit facility for sum of Rs. 30,25,000/-.

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In consideration of sanction of aforesaid home loan credit facility, the Defendants executed following loaning and security documents on 29.11.2019:

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i. Home Loan Agreement

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ii. Power of Attorney

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iii. Letter of Indemnity

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iv. Affidavit for Balance Transfer

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In order to secure the aforesaid facility, the Defendants has created equitable mortgage by way of collateral security in respect of the immovable property being FT. 701, 7^th Floor, C- Wing, Genevieve CHSL, Casa rio, Gold Complex, Nilje, Kyn Shill Rd., Dombiwali Maharashtra- 421 204. The Defendants deposited original title deeds in favour of the Applicant.

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Further, upon the request made by the Defendant No. 1 & 2 for availing Loan for Insurance Premium Facilities through their application dated 14.11.2019. Pursuant to the said request Applicant vide sanction letter dated 28.11.2019 sanctioned the said loan for insurance premium facilities for a sum of Rs. 7,75,000/-.

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In consideration of sanction of aforesaid Loan for Insurance Premium facility, the Defendants executed following loaning and security documents on 29.11.2019:

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i. Home Loan Agreement

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OA 10 of 2023

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ii. Power of Attorney

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iii. Letter of Indemnity

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iv. Affidavit Cum undertaking

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It is also stated that to further secure the aforesaid facility, Defendants admitted acknowledged and declared and consented to continue to hold and retain the title deeds relating to the mortgaged property executed on 29.11.2019.

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However, after availing aforesaid facility, Defendants have been irregular since long, thus the account declared as NPA on 09.07.2021. Thereafter, the Applicant through their Advocates Legal Notice dated 23.07.2022 and called upon the Defendants to pay the outstanding dues but failed to do so, hence the present OA has been filed.

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Notice was issued to the Defendants. Despite service, none appeared on behalf of the Defendant No. 1 & 2 nor any WS has been filed, thus they were proceeded ex-parte vide order dated 28.02.2024.

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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 Authorized Officer Haresh M. Goheja.

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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 Bank has fully corroborated the averments made in the OA, even otherwise the whole case of the Applicant Bank is based on documents and the witness has duly proved all these documents as against the defendants. In my view there is no question of disbelieving the evidence led by the Applicant

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OA 10 of 2023

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Bank and the Applicant Bank has proved its case beyond reasonable doubt. The liability of the Defendant No. 1 & 2 is joint and several.

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As per the Particular of Claim (Exhibit AW- 21 of List of documents of original document), the rate of interest was @ 8.10% p.a. repo rate linked on the principal amount plus penal interest @ 2 % p.a.

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The Applicant claiming penal interest @ 2% p.a. with respect of Home Loan and Loan for Insurance Premium Facilities, however, the same is hereby declined.

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

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O R D E R

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(i) I allow the present O.A. and direct the Defendant No. 1 to 3 to pay to the Applicant, jointly and severally, within a period of 60 days, a sum of Rs. Rs. 42,22,521/- (Rupees Forty Two Lakh Twenty Two Thousand Five Hundred Twenty One Only) as on 29.07.2022 under the Home Loan and Loan for Insurance Premium facilities with further interest @ 8.10% p.a. from the date of filing of the present OA till its realisation.

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(ii) Failing which the aforesaid amount shall be recovered from the sale of the mortgage property, personal moveable and moveable and immoveable assets of the Defendants.

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(iii) Defendants are hereby directed not to deal with their properties till further direction of Ld. Recovery Officer.

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(iv) Defendants shall also pay the cost and expenses of the OA.

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OA 10 of 2023

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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 : 15.03.2024 Presiding Officer,

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DRT-1, Mumbai.

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Tjs/-

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Idbi Bank v. Mr Moiem Sayed Nasir Zaidi

Case brief

What is this about?

What did the court decide?

Idbi Bank v. Mr Moiem Sayed Nasir Zaidi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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