Allowed

The Federal Bank Limited v. Sri. Johney @ John Chacko

DRT16 Mar 2024OA/431/2022

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal allowed an Original Application filed by Federal Bank Limited for recovery of dues amounting to Rs. 41.49 lakhs plus interest from two borrowers. The bank claimed dues for two agricultural loans. The defendants, appearing ex-parte via counsel but not filing a written statement, were held liable to pay the principal, interest, and future dues, with liberty to recover via

What did the court decide?

Recovery of Rs. 41,49,837.62 plus future interest; liberty to sell mortgaged properties and personal assets.

The Federal Bank Limited versus Sri. Johney @ John Chacko — Banking and Recovery | DRT (2024)

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IN THE DEBTS RECOVERY TRIBUNAL II, KARNATAKA AT BENGALURU

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Dated this 16^th day of March 2024

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Present: SMT. S. V. GOWRAMMA Hon’ble Presiding Officer

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OA NO.431/2022

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BETWEEN:

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The Federal Bank Limited Hebri, Saptika Plaza, Kuchooe Road, Hebri, Karkala Taluk, Udupi District.

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…APPLICANT

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AND

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Mr. Johney @ john chacko S/o. Chackochan, Aged about 64 years,

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Mrs. Philominajohney W/o. Johney @ John Chacko, Aged about 60 years,

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Both are R/at Poovathukaran House, Changaloor Post, Pudukad, Thrissur, Kerala-680312.

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…DEFENDANTS

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Counsel on record/appeared for:

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Applicant : Sri. Nagaraj Damodar Defendants Nos. 1 & 2 : Ex-parte.

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FINAL ORDER

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The present Original Application (OA) is filed on 08-03-2022, under section 19 of the Recovery of Debts due to Banks and Financial Institutions

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Act 1993 for recovery of a sum of Rs.41,49,837.62/-(Rupees Forty One

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OA No.431/2022

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lakhs Forty Nine Thousand Eight Hundred and Thirty Seven and Sixty Two Paisa Only) with further interest thereon from the date of filing till realization from defendants.

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The Application filed is within the period of limitation as prescribed under Section 24 of the Recovery of Debts Due to Banks and Financial Institutions Act 1993 and the subject recovery claim falls within the jurisdiction of this Tribunal.

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Brief facts of the case:

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The Defendant No. 2, by executing a GPA dated. 23.09.2007, appointed her husband Mr. John Chako. i.e. the Defendant No.1 as her power of attorney holder to act on her behalf. The Defendant No.1, on his behalf and also being the GPA holder of Defendant No.2, by offering immovable properties i.e. Item No. 1 to 11 of the ‘Schedule’ hereunder, jointly owned by the Defendant No.1 & 2, as security approached the Applicant Bank for the loan facility under the scheme CC-AGRI DIRECT/FKCC for a sum of Rs.10,00,000/- (Rupees Ten Lakhs).

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The Defendant No. 1 & 2 being the Borrowers executed “On Demand Pronote”, “Agreement for Agricultural Loans” and “Security Delivery Letter” in favour of Applicant Bank on 06.02.2015. The Defendant No.1 & 2, on 06.02.2015, as security for the said loans created an equitable mortgage of immovable properties i.e. the Item No. 1 to 11 of the 'Schedule’ B hereunder, in favour of the Applicant bank by depositing original title

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OA No.431/2022

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deed / Sale Deed amongst other. The defendant No.1 being the GPA holder of Defendant No.2 executed Registered Memorandum of Deposit of Title Deeds on 06.02.2015, by mortgaging the Schedule Properties in favour of Applicant Bank to secure the said loan of Rs.10,00,000/- (Rupees Ten Lakhs).

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The Defendants agreed to repay the said CC-AGRI DIRECT/FKCC of Rs.10,00,000/- (Rupees Ten Lakhs) within a year with interest at the rate of 13.30% p.a. with monthly rests, in case of any default in repayments, defendants agreed to pay an additional interest at the rate of 2% p.a. or such other rates prescribed by the Applicant Bank from time to time.

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The defendants also hypothecated the standing crops and fixtures created out of banks finance mentioned in the agreement more particularly described in ‘Item No. 1 of Schedule ‘A’ hereunder towards primary security in favour of the Applicant Bank by way of first charge.

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2^nd LOAN: CC-AGRI DIRECT/FKCC A/c. No.18965500000199

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The Defendant No.1 being the GPA Holder of Defendant No. 2, further being in need of additional financial assistance, by offering Item No.12 to 18 of the schedule properties as security, again approached the Applicant Bank under the scheme- CC-AGRI DIRECT/FKCC Loan for a sum of Rs.10,00,000/- (Ten Lakhs). The Applicant Bank after considering the application of the Defendants, sanctioned CC-AGRI DIRECT/FKCC Loan

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OA No.431/2022

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Facility of Rs.10,00,000/- (Ten Lakhs) on 14.03.2015 under Loan Account No. 18965500000199, opened in the name of Defendant No.2.

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The Defendant No. 1 & 2 being the Borrowers executed “On Demand Pronote”, “Agreement for Agricultural Loans” and “Security Delivery Letter” in favour of Applicant Bank on 14.03.2015. The Defendant No.1 & 2, on 12.03.2015 , as security for the said loans created an equitable mortgage of immovable properties i.e. the Item No. 12 to 18 of the 'Schedule’ B hereunder, in favour of the Applicant bank by depositing original title deed/Sale Deed amongst other, with the Applicant Bank. The defendant No.1 being the GPA holder of Defendant No.2 executed Registered Memorandum of Deposit of Title Deeds” in favour of Applicant Bank on 12.03.2015, by mortgaging the Schedule Properties in favour of Applicant Bank to secure the said loan of Rs.10,00,000/- (Rupees Ten Lakhs).

¶36

The defendants admitting the liability with the Applicant Bank executed a letter of confirmation and Balance on 30.05.2017 and on 14.02.2020. The defendants after availing the aforesaid loan facility, failed to repay the principal as well as interest thereon and account turned NPA on 30.07.2020 & 13.02.2020 respectively . In spite of repeated demands and requests made by the Applicant Bank, the Defendants have not regularized their account with the Applicant Bank. Thus, the Applicant Bank got issued Recall Notices dated 19.02.2022.

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OA No.431/2022

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The Applicant Bank, a sum of Rs.20,03,000.31 (Rupees Twenty Lakhs Three Thousand and paisa Thirty One Only), is due under CC-AGRI DIRECT/FKCC Loan-I ,A/c.No.18965500000173 of Rs.10,00,000/- (Rupees Ten Lakhs) facility as on the date of filing of this application . The pendentelite/future rate of interest payable by the Defendants is @ 18.23% per annum, with yearly rests, including overdue interest @ 4% as per the terms of the agreement executed by the Defendants.

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The Applicant Bank, a sum of Rs.21,46,837.31 (Rupees Twenty One Lakhs Forty Six Thousand Eight Hundred Thirty Seven and paisa Thirty One Only) is due under CC-AGRI DIRECT/FKCC Loan –II, A/c.No.18965500000199 Facility as on the date of filing this application . The pendentelite/future rate of interest payable by the Defendants is @ 18.23% per annum, with yearly rests, including overdue interest @ 4% as per the terms of the agreement executed by the Defendants. The Applicant Bank submits that the Defendants, after availing the loans, failed to repay the loan amount and committed default. However, there was no positive response from the defendant. Hence, this Original Application (OA) has been filed to recover the dues from the defendant.

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After the filing of OA, summons was sent to the Defendants Nos.1 & 2 by way of Registered Post, and Defendants No.1 & 2 appeared through counsel Shri. Rajaram Sooryam Bail, but did not file the Written Statement in spite of opportunity, hence Written Statement of Defendants No.1 & 2 stands closed on 27.09.2023. When OA was taken up on 27.09.2023 even

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OA No.431/2022

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after giving sufficient time, there was no appearance or representation from the Defendants Nos.1 & 2.

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Heard the submissions of Counsels and perused the records.

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To prove the case, Sri. Deepak Shenoy.K, S/o. Baburaya Shenoy, aged about 41 years, Asst. Vice President, of the Applicant Bank, has filed Affidavit by way of evidence and same was considered as evidence of AW.1 and marked as Ex.A1, and documents came to be marked as Ex.A3 to A21. As the defendants remained ex-parte, the OA claim remains unchallenged. There is no contra evidence available on record to repudiate the claim of the Applicant Bank.

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Having regard to the amount advanced, the interest applied, documents executed, the conduct and operations in the loan account and the default committed, this Tribunal comes to the conclusion that the applicant bank is entitled to a final order on the following terms:-

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: O R D E R:

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15. The OA is allowed with costs,

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(a) The Applicant bank is allowed to recover from defendants Nos 1 & 2 jointly or severally to pay a sum of Rs. 41,49,837.62 (Rupees Forty One Lakhs Forty Nine Thousand Eight Hundred Thirty Seven and paisa Sixty Two Only) with pendentelite and future interest, from the date of the filing of the OA till the date of realization.

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OA No.431/2022

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i) The Defendants No.1 & 2 jointly, severally and personally to pay the Applicant Bank a sum of Rs.20,03,000.31 (Rupees Twenty Lakhs Three Thousand and paisa Thirty One Only) as on 05.03.2022 being the amount due under CC-AGRI DIRECT/FKCC Loan-I Account No.18965500000173 with pendentelite and future interest @ 18.23 % per annum with yearly rests from 05.03.2022 till realization of the entire dues.

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ii) The Defendants No.1& 2 jointly, severally and personally to pay the Applicant Bank a sum of Rs. 21,46,837.31 (Rupees Twenty One Lakhs Forty Six Thousand Eight Hundred Thirty Seven and paisa Thirty One Only) as on 05.03.2022 being the amount due under CC-AGRI DIRECT/FKCC Loan-II Account No.18965500000199 with pendentelite and future interest @ 18.23 % per annum with yearly rests from 05.03.2022 till realization of the entire dues.

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(b) In the event of failure of the defendants to pay the aforesaid amount, the bank is at liberty to recover the amount by sale of the schedule mentioned properties in the OA;

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d) If the sale proceeds of the schedule mentioned properties are not sufficient to satisfy the dues as ordered above, the applicant bank is

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OA No.431/2022

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at liberty to sell the personal assets of the defendants (both movables and immovables) to recover the balance dues as required under law;

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(e) The Applicant Bank shall file the latest memo of calculation of OA amount together with interest, costs etc., to be paid by the defendants duly considering the amounts, if any, paid by the defendants and/or amount realized by sale of assets etc., during the intervening period after the filing of the OA, enabling the Registry to prepare Recovery Certificate for the amount to be paid by defendants to the applicant bank.

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(f) The Applicant Bank shall file memo of costs within ten days from the date of this final order.

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(g) Recovery Certificate shall be drawn up and issued to the Recovery Officer in terms of the final order.

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16. A copy of this order be communicated to the parties concerned.

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[Dictated to the (GS), transcribed by him, corrected and signed by me on this the 16^th day March 2024].

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(S.V.GOWRAMMA)

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PRESIDING OFFICER DRT-II, BENGALURU

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ANNEXURES

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WITNESSES EXAMINED FOR THE APPLICANT BANK:

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AW-1: Sri.Satwant Singh S/o. Gurcharan Singh, Senior Manager of the Applicant Bank.

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OA No.431/2022

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Exhibits on the part of the Applicant:

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A/c No.18965500000173

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Sl.No	Particulars	Exhibits
1.	General Power of Attorney dated23.3.2007	A3
2.	Loan Application dated 29.01.2015	A4
3.	Sanction Order cum reporting statement dated 06.02.2015	A5
4.	On Demand dated 06.02.2015	A6
5.	Security Delivery Letter dated 06.02.2015	A7
6.	Agreement for Agricultural Loan dated 06.02.2015	A8
7.	Registered Memorandum of Deposit of title deeds dated 06.02.2015	A9

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A/c No.18965500000199

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Sl.No	Particulars	Exhibits
8.	Sanction Order cum reporting statement dated 14.03.2015	A10
9.	On Demand dated 14.03.2015	A11
10.	Security Delivery Letter dated 14.03.2015	A12
11.	Agreement for Agricultural Loan dated 14.03.2015	A13
12.	Registered Memorandum of Deposit of title deeds dated 12.03.2015	A14
13.	Balance and Confirmation dt:30.05.2017	A15
14.	Balance and Confirmation dt:14.02.2020	A16
15.	Notice dated 19.02.2022 along with Postal Acknowledgments in respect of A/C No. 18965500000173	A17
16.	Notice dated 19.02.2022 along with Postal	A18

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OA No.431/2022

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	Acknowledgments in respect of A/C No. 18965500000199
17.	Statement of Account Extract in respect of A/c No. 18965500000173	A19
18.	Statement of Account Extract in respect of A/c No. 18965500000199	A20
19.	Certificate U/S 2A (B) & A(C) of the Banker’s Book Evidence Act, 1891 (As Amended)	A21

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Witness Examined for the Defendants:

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-Nil –

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List of Documents Exhibited for the Defendants:

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-Nil –

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SCHEDULE ‘A’ PROPERTIES

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ITEM NO.1

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Hypothecation of standing crops in the agricultural land in measuring 9.43 Acres, situated at Hermunde Village, Karkala Taluk, Udupi.

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ITEM NO.2

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Hypothecation of standing crops in the agricultural land in measuring 8.21 Acres, situated at Hermunde Village, Karkala Taluk, Udupi.

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SCHEDULE ‘B’ PROPERTIES

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(The Property owned by Defendant No.1& 2)

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Ite	Extent	Sy. No.	Village	Taluk	District	Description	Boundari
m		Site				of	es N E S
No.		No.				Properties	W

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OA No.431/2022

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1	2.13 Acres	25/1	Hermunde	Karkala	Udupi	Agriculture	Full Sub- Division
2	0.48 Acres	25/3	Hermunde	Karkala	Udupi	Agriculture	Full Sub- Division
3	0.54 Acres	25/4	Hermunde	Karkala	Udupi	Agriculture
4	0.23 Acres	25/5	Hermunde	Karkala	Udupi	Agriculture
5	0.24 Acres	25/6	Hermunde	Karkala	Udupi	Agriculture
6	1.62 Acres	25/7	Hermunde	Karkala	Udupi	Agriculture
7	0.23 Acres	25/9	Hermunde	Karkala	Udupi	Agriculture
8	0.41 Acres	25/11	Hermunde	Karkala	Udupi	Agriculture
9	0.72 Acres	25/12	Hermunde	Karkala	Udupi	Agriculture
10	2.67 Acres	133/3	Hermunde	Karkala	Udupi	Agriculture
11	0.16 Acres	155/1A 2	Hermunde	Karkala	Udupi	Agriculture
12	0.65 Acres	25/2	Hermunde	Karkala	Udupi	Agriculture
13	2.22 Acres	25/8	Hermunde	Karkala	Udupi	Agriculture
14	1.40 Acres	25/13	Hermunde	Karkala	Udupi	Agriculture
15	0.16 Acres	25/14	Hermunde	Karkala	Udupi	Agriculture
16	1.23 Acres	155/1 A1	Hermunde	Karkala	Udupi	Agriculture
17	0.63 Acres	120/1	Hermunde	Karkala	Udupi	Agriculture
18	1.92 Acres	125/3	Hermunde	Karkala	Udupi	Agriculture

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(S.V.GOWRAMMA)

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PRESIDING OFFICER DRT-II, BENGALURU

The Federal Bank Limited v. Sri. Johney @ John Chacko

Case brief

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The Federal Bank Limited v. Sri. Johney @ John Chacko

Case brief

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