Allowed

Bank of Maharashtra v. Preetheesh

DRT25 Mar 2024OA/960/2022

Case brief

AI extract

What is this about?

The Tribunal allowed an Original Application filed by a bank for recovery of a housing loan default of approximately Rs. 40 lakh. The claim stood unchallenged due to defendants appearing ex-parte. An order was passed directing joint and several liability and recovery through sale of mortgaged property.

What did the court decide?

Recovery of Rs. 40,76,010/- along with future interest at 8.45% plus 2% penal interest; liberty to sell mortgaged and personal assets for recovery.

Bank of Maharashtra versus Preetheesh — Banking and Recovery | DRT (2024)

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IN THE DEBTS RECOVERY TRIBUNAL II, KARNATAKA AT BENGALURU

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Dated this 25^th Day of March, 2024

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

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OA. No.960/2022

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BETWEEN:

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Bank of Maharashta Branch Office at : Asset Recovery Branch Address- 15, Police Station Road, Basavangudi Bengaluru. Represented by the Branch Head Ms. Nishit Chandra … APPLICANT

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AND:.

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Sri. Preetheesh B N S/o Srinivasusulu B Aged 30 years Residing at 846, 29^th Main, 3^rd Cross PP Layout, HBCS Layout Uttarahalli Bangalore South – 560061

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Smt. R Kavitha W/o Preetheesh B N Aged 28 years, Residing at 846, 29^th Main, 3^rd Cross PP Layout, HBCS Layout Uttarahalli Bangalore South – 560061

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M/s Dhananjaya Builders A Partnership concern having its office at: Flat no. T-2, Nos. 80 and 81, Flora Somasundrapalya HSR Layout Bengaluru - 560102

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Sri. Surath Jagan S/o S Ratan Kumar Aged 41 years Managing Partner Dhananjaya Builders Residing at Flat no. F1, No. 37 Galaxy Apartments, Kodichikkanahalli

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OA. No. 960/2022

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Bommanahalli Bengaluru – 560068

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...DEFENDANTS

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Counsel on record/appeared for:

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Applicant : Smt. Divya Purandar Defendant Nos.1 to 4 : Exparte.

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FINAL ORDER

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The present Original Application (OA) is filed on 21.06.2022 under section 19 of Recovery of Debts and Bankruptcy Act 1993 for recovery of a sum of Rs.40,76,010/- (Rupees Forty Lakhs and Seventy Six Thousand and ten only) with further interest thereon from the date of filing the Application till realization from the Defendants.

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The application filed is within the period of limitation as prescribed under Section 24 Recovery of the Debts and Bankruptcy Act 1993 and the subject recovery claim falls within the jurisdiction of this Hon’ble Tribunal.

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Brief facts of the case:

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It is the case of the applicant bank where in the Defendant Nos.1 & 2 are borrower and Defendant No.3 is a partnership firm and Defendant No.4 as the Builder/developer. The Defendant Nos.1 & 2 had approached the applicant bank seeking for Housing Loan of Rs.38,00,000/- (Rupees thirty eight lakh Only) for the purpose of purchase of flat. After considering the request of the Defendant Nos.1 & 2, the applicant bank sanctioned an Housing Loan of Rs.38,00,000/- (Rupees thirty eight lakh Only) vide Sanction communication dated 30.10.2019. Defendants nos.1 and 2 agreed to repay the said loan at a floating rate of 0.05% above the MCLR rate

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OA. No. 960/2022

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(which was standing at 8.20% p.a. at that time) in 360 installments of Rs.29,200/- each. The Defendant no.3 represented by Defendant no.4 entered into a construction agreement dated 11.09.2019 in favour of Defendant No.1. The Tripartite Agreement dated 31.10.2019 was entered into between Defendant no.1, the Defendant no. 4 and Applicant Bank.

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Further, the disbursed to and the Defendant No.1 and 2 availed the said credit under the terms of housing loan credit facilities availed under the loan account bearing No 60344965223, and received the disbursement of the entire loan to the tune of Rs.38,00,000/- (Rupees thirty eight lakh only). All the terms and conditions of the above said term loan including the repayment terms and rephased repayment terms were duly accepted and agreed upon by the Defendant No.1 and 2.

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The defendants executed necessary loan documents in favour of the applicant bank as security for the due repayment of the loans, interest, cost and charges, and Defendants executed Loan Agreement dated 31.10.2019 and Undertaking to mortgage and Power of Attorney dated 11.09.2019 in favour of the Applicant Bank.

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The Applicant Bank submits that the Defendant, after availing the said facilities, failed to repay the loan amount and committed default. The loan account of the Defendants had been classified as a Non Performing Asset (NPA) on 26.03.2021 and the Applicant bank issue a Demand Notice dated 22.02.2021 calling upon the defendant to repay the entire

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OA. No. 960/2022

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outstanding loan amount. However, there was no positive response from the Defendants. Hence, this Original Application (OA) has been filed to recover the dues from the Defendants.

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After the filing of the OA, summons was sent to the Defendant Nos.1 to 4 through Registered Post with Acknowledgment Due the same is duly returned unserved with postal shara “Left without instruction” Hence, summons through substitute service was taken and the Applicant Bank published on 23.06.2023 in two daily leading newspapers, “The Financial Express” in English Newspaper and “Kannada Prabha” in Kannada Newspaper. When OA was taken up on 23.06.2023 even after giving sufficient time, there was no appearance or representation from the Defendant; hence, Defendant was placed exparte on 23.06.2023.

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Heard the submissions of Applicant Bank and perused the records.

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To prove the case of the Applicant Bank, Sri. Nishit Chandra S/o Mariyanus Tigga, Chief Manager, has filed Affidavit by way of evidence and same was considered as evidence of AW.1 and marked as Ex.A1, the list of Document came to be marked as Ex.A2 and documents came to be marked as Ex.A3 to A9. As the Defendant 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, the

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conduct and operations in the account and the default committed, this

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OA. No. 960/2022

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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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The OA is allowed with costs,

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(a) The applicant bank is allowed to recover from Defendant Nos.1 to 4

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jointly and severally to pay an amount of Rs.40,76,010/- (Rupees Forty Lakhs and Seventy Six Thousand and ten only) as on 16.06.2022 in respect of the term loan account bearing no. 60344965223 with future interest at

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8.45% per cent per annum plus 2% penal interest with monthly rests

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from the date of suit till the actual realization of entire amount.

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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 property 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 at

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liberty to sell the personal assets of the defendant (both movable and immovable) respectively to recover the balance dues as required under law;

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OA. No. 960/2022

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(e) The applicant bank shall file the latest memo of calculation of OA

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amount together with interest, costs etc., to be paid by the defendant 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

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of the OA, enabling the Registry to prepare Recovery Certificate for the

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amount to be paid by the respective defendants to the applicant bank.

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(f) The applicant bank shall file memo of costs within ten days from the

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date of this final order.

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(g) Recovery Certificate shall be drawn up and issued to the Recovery

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Officer in terms of the final order.

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(h) Interim Application pending if any, stands disposed of with this Final Order.

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

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[Dictated to the (CS), transcribed by her, corrected and signed by me on this the 25^th Day of March 2024].

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Sd/-

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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. Nishit Chandra S/o Mariyanus Tigga, Chief Manager of Applicant Bank.

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OA. No. 960/2022

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Exhibits on the part of the Applicant:

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Exhibit Nos.	Particulars of Documents
A1	Applicant Evidence
A2	List of Documents.
A3	Copy of Loan sanction communication dated 30.10.2019
A4	Copy of Loan Agreement dated 31.10.2019 along with Letter of Authority executed by Defendant Nos.1 & 2
A5	Copy of Construction Agreement dated 11.09.2019 between Defendant Nos.1, 2 & 3
A6	Copy of Tripartite Agreemetn dated 31.10.2019
A7	Copy of Undertaking to mortgage and Power of Attorney 31.10.2019 by Defendant Nos.1 & 2
A8	Copy Demand Notice dated 22.02.2021 issued by Defendants.
A9	Certified extract of the Statement of accounts bearing No.60344965223.

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Witness Examined for the Defendants: -Nil - List of Documents Exhibited for the Defendants: -Nil -

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Schedule of Proposed Mortgaged Property

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Schedule A

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All that piece and parcel of site no. 275 formed by Bangalore Development Authority, at BTM Layout 6th Stage, now bearing BBMP no. 177/179/275, measuring east to west 24.38 meters or 80 feet and measuring north to south 15.24 meters or 50 feet, in total 371.55 sq. meters or 4000 sq. feet, and bounded as follows:-

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East by : Sites no. 258, 259 and 260 West by: 40 feet Road North by: Site no. 274 South by: Site no. 276

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OA. No. 960/2022

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Schedule B property

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All that piece and parcel of flat no. SS-301 in third floor having super built up area of 920 sq. feet with an undivided interest and share of 196 sq. feet in land schedule A property and on car parking space in the Stilt/Basement floor being a part of the apartment building known as “Silver Shades” constructed over schedule property with RCC framed structure, concrete Block Masonery, Main door teak framed and Steam Breach veneered flush shutter and room doors sal wood with water proof flush shutters, Powder, coated aluminium, windows with glass and safety grills vitrified flooring, etc. and bounded as follows:-

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East By: Corridor West By : 40 feet Road North By: Private Property South By: Flat no. SS -302.

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Sd/-

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PRESIDING OFFICER

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DRT-II, BENGALURU

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OA. No. 960/2022

Bank of Maharashtra v. Preetheesh

Case brief

What is this about?

What did the court decide?

Bank of Maharashtra v. Preetheesh

Case brief

What is this about?

What did the court decide?

What the court decided

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