Allowed

Indian Overseas Bank v. Sareesh Kumar

DRT6 Nov 2024TA/1736/2023

Case brief

AI extract

What is this about?

In an application for recovery of dues, the Tribunal allowed the bank's claim for Rs. 39,26,126/- along with interest at 9% per annum, noting that while the defendant committed fraud, the resulting delay was not their fault.

What did the court decide?

Recovery of Rs. 39,26,126/- with interest @9%p.a., authority to sell mortgaged property, and costs.

Indian Overseas Bank versus Sareesh Kumar — Contract and Commercial Disputes | DRT (2024)

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TA No.1736/2023(E) 1

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06.11.2024

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IN THE DEBTS RECOVERY TRIBUNAL – III, CHENNAI

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Dated this the 06^th day of November, 2024

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Present: SHRI A.S. JAYACHANDRA Presiding Officer (In–charge)

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TRANSFERRED APPLICATION No. 1736 OF 2023

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(Originally filed before DRT-II, Chennai and numbered as OA 920/2019 and thereafter transferred to this Tribunal and renumbered as TA 1736/2023)

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Indian Overseas Bank Ashok Nagar Branch No.9, Dr. Natesan Road Chennai – 600 083. Rep. by its Chief Manager ..... Applicant

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-Vs-

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Mr. M. D. Sareesh Kumar, S/o. Mr. V. Duraisamy, A-1, Yogam Apartments, No.68, Murugappa Reddy Street, Chennai – 600 053. ....Defendant

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Counsels on record / appeared:

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Counsel for Applicant Bank : K. Radhakrishnamurthy Defendant was set ex-parte on : 27.07.2021

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O R D E R

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This application is filed by the applicant bank under Section 19 of Recovery

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of Debts and Bankruptcy Act, 1993 (formerly Recovery of Debts Due to Banks and Financial Institutions Act, 1993) against the defendant for recovery of a total sum of Rs.39,26,126/- (Rupees Thirty Nine Lakhs Twenty Six Thousand One Hundred and Twenty Six only) due under Housing Loan Facility repayable together with interest at the rate of 11.95% per annum with monthly rests from the date of application till the date of realization in full and for sale of schedule mentioned property along with costs of this application.

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TA No.1736/2023(E)

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06.11.2024

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Originally the application was filed before DRT-II, Chennai, assigned OA No.920/2019, and thereafter in pursuance to the notification from Ministry of Finance, DFS dated 04.10.2022, OA No.920/2019 stood transferred to this Tribunal and renumbered as TA No.1736/2023.

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Brief facts of the case :- The sole defendant approached the applicant bank for a Housing Loan of Rs.20 Lakhs by way of his application dated 03.03.2011 .The same was sanctioned on 05.03.2011 under Subha Gruha Housing Scheme for purchase of a Flat. It is the allegation that the entire loan amount was availed by the defendant on 08.03.2011 and the defendant executed Demand Promissory Note, Letter of Undertaking to repay in instalments and also Housing Loan agreement. The loan was to be repaid in 180 equal monthly instalments of Rs.20,885/- per month from September, 2011.

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It is alleged that the defendant had deposited the title deeds on 11.04.2011 in token of having obtained the loan and the same was deposited with an intention to create equitable mortgage, which is also registered vide Document No.2136/2011 11.04.2011, before the Sub Registrar, Virugambakkam

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It is further alleged that the defendant was irregular in payments and the account is classified as NPA on 01.01.2013.

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Applicant bank also submits that there was a case registered with CBI in RC No.16A 2013 CBI / ACB Chennai and certain documents were seized by the CBI for investigation.

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Summons was ordered to sole defendant and the same was returned with remark as ‘Left’. Applicant bank had caused paper publication and filed proof

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TA No.1736/2023(E)

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06.11.2024

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thereof. Defendant remained absent and no written statement was also filed and hence was placed ex-parte on 27.07.2021 by the Ld. Predecessor.

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IA No.1144/2022 was filed by applicant bank to dispense with production of original documents and to adduce secondary evidence on the ground that the same were handed over to Inspector of Police, Anti Corruption Branch, Shastri Bhavan, Chennai by Proceeding No.Rc.No.16A 2013 CBI/ACB/Chennai dated 08.11.2013 and the same was allowed by the Ld. Predecessor on 07.07.2022.

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The applicant bank examined Mrs. Soumyashree Rout, Manager / Constituted Attorney as AW-1 and deposed to the facts of the case. Ex A-1 to Ex A- 10 filed by applicant bank were taken on record and marked as secondary evidence.

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During the course of hearing, applicant bank wanted to rely on the additional evidence and had filed IA No.2018/24 praying to mark photocopies of additional documents as Exh A-11 to A-17. Ld. Counsel submitted that if the additional evidence is not accepted, the case of the applicant bank would be jeopardized. Applicant bank filed additional proof affidavit of Mrs. R. Ramya. She is examined as AW-2 and the additional documents are taken on record and marked as Exh.A11 to Exh.A17.

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Applicant bank had filed additional proof affidavit of Mrs. R. Ramya, Senior Manager of applicant bank dated 15.10.2024 submitting therein that upon request of defendant, Housing Loan of Rs.20 Lakhs was sanctioned, which was availed by defendant after duly executing loan and security documents in favour of applicant bank on 08.03.2011. It is also deposed that thereafter, as defendant committed default in repayment, loan account became NPA on 01.01.2013. It is further

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TA No.1736/2023(E)

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06.11.2024

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submitted that by routine inspection, it was found out that this defendant along with other home loan borrowers, with the help of the then Senior Manager and Builders had committed fraud and obtained loans. Upon complaint given by Chief Regional Manager to SP, Anti Corruption Wing, CBI on 20.04.2013 vide letter dated ROII/VIGI/86/2012-2013, CBI had registered the case vide FIR No.RC/16A/2013 (RC MAI 2013 A0016 CBI ACB) dated 20.04.2013 and all the original documents were seized by CBI on 08.11.2013 from the branch and the case is still pending before CBI. It is further submitted that subsequent to filing of OA, applicant bank had sent request letters dated 24.03.2022 and 09.05.2022 requesting CBI authorities to provide certified copies of documents pertaining to the Housing Loans. Applicant bank had enclosed copies of complaint dated 20.04.2013, FIR dated 22.08.2013 and request letters dated 24.03.2022 and 09.05.2022, Proof of disbursement of loan amount and request letter by defendant for transfer of loan amount to SB Account of builder in support of their contentions.

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With the available material evidence on record, the only point that arises for consideration in this application is:-

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Whether the applicant bank is entitled for the recovery of the amount claimed in the application from the defendant? If so, what relief?

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Heard the Ld. Counsel for the applicant. Perused the OA averments and the evidence available on record.

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14. Answer to the point: -

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14.1 To prove its claim, the applicant bank examined the above witnesses - AW1 and got marked 10 documents and AW2 and got marked 7 documents respectively.

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TA No.1736/2023(E)

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06.11.2024

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The proof affidavit of the applicant bank remains unchallenged and the say of the witnesses AW1 and AW2 remains unrebutted.

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14.2 AW1 in her affidavit had re-iterated the facts on oath and she relied on Exh.A1 to A10. Exh. A1 is Application by Defendant dated 03.03.2011, Exh.A2 is Sanction Letter by applicant bank dated 05.03.2011, Exh.A3 is Demand Promissory Note for Rs.20 lakhs dated 08.03.2011 executed by the Defendant, Exh.A4 is Letter of undertaking and repayment executed by the Defendant dated 08.03.2011, Exh.A5 is Housing Loan Agreement executed by the Defendant dated 08.03.2011, , Exh.A6 is Memorandum of Deposit of Title Deeds executed by the Defendant dated 11.04.2011, Exh.A7 is Statement of Account, , Exh.A8 is Sale Agreement executed between Mr. N. Anandhan and M.D. Sareesh Kumar the borrower herein dated 25.12.2010, Exh.A9 is the Construction Agreement between M.D. Sareesh Kumar and M/s Vishnuram Builders. dated 25.12.2010, Exh.A10 is the Sale Deed in favour of M.D. Sareesh Kumar– Regd Doc No.1378/2011 dated 08.03.2011

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14.3 AW2 in her affidavit had re-iterated the facts on oath and she relied on Exh.A11 to A17. Exh.A11 is Complaint by applicant bank’s Head Office dated 20.04.2013, Exh.A12 is FIR Copy by CBI /ACB dated 22.08.2013, Exh.A13 is Request Letter by applicant bank dated 24.03.2022 to The Inspector of Police, CBI Anti Corruption Branch, Exh.A14 is Request Letter by applicant bank dated 09.05.2022 to The Inspector of Police, CBI Anti Corruption Branch, Exh.A15 is Proof of SB Account belongs to defendant,, Exh.A16 is Address proof of defendant, Exh.A17 is Request letter by the defendant to the applicant for disbursement of the Loan amount directly to the builder.

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TA No.1736/2023(E)

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06.11.2024

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This Tribunal has carefully perused the pleadings and also evidence available on record. The allegations found in the OA goes unrebutted. Defendant remained ex-parte. The say of AW1 and AW2 goes unrebutted. Therefore, on careful consideration of proof affidavit along with Exhibits filed on behalf of the applicant bank, the Tribunal is satisfied that the applicant bank has proved the OA claim against the defendant. Thus the point for determination is answered in the affirmative.

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For the reasons stated as above, that the applicant bank is entitled for Recovery of a total sum of Rs.39,26,126/- in respect of Housing Loan facility. As far as the interest lis pendens and future interest is concerned, the same is to be considered in the light of the following circumstances:

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(a) This being a Housing Loan, which rate of interest varies from time to time, cannot be lost sight of;

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(b) The averments in the OA itself says that there has been some kind of defalcation of funds or fraud having been committed with the help of the then Senior Manager and the builders, for which the defendant cannot be saddled with future interest at the contractual rates.

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(c) There has been delay in disposal of the case for nearly five years for various reasons. This Tribunal being vested with additional charge from 11.06.2024 has taken note of that the defendant is not responsible for the delay in disposal of the case.

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For the above reasons, it is just and necessary that the interest from the date of filing of the OA till the date of realisation on the sum adjudged shall be at the rate of 9% (simple)

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TA No.1736/2023(E)

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06.11.2024

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In the result, application is allowed granting recovery certificate as follows:

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(a) The applicant bank is entitled for Recovery of a total sum of Rs.39,26,126/- (Rupees Thirty Nine Lakhs Twenty Six Thousand One Hundred and Twenty Six only) due under Housing Loan facility together with further interest @ 9% per annum (simple) from the date of application till the date of realization against the defendant.

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(b) It is further ordered that in case of default of payment by the defendant, the applicant bank is entitled to sell the schedule mentioned property in terms of the order in para (a) supra and appropriate the sale proceeds towards the amount due.

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(c) It is further ordered that amount remitted or realized, if any, during the course of the proceedings, shall be given due credit to the loan account of the defendant.

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(d) The applicant bank is entitled for costs of this application.

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(e) Schedule mentioned in the OA shall form part of this final order

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The applicant bank is directed to file costs memo within two weeks of the receipt of this order.

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Issue recovery certificate in favour of the applicant bank in terms of this final order.

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TA No.1736/2023(E) 8

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06.11.2024

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Communicate a copy of the order to the parties concerned in terms of Rule 16 read with Rule 2(c) of DRT (Procedure) Rules, 1993.

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Sd/(A.S.JAYACHANDRA) PRESIDING OFFICER (In-charge) DRT-III, CHENNAI

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(Dictated to PS, transcribed by her, corrected, signed and pronounced by me on this 06^th day of November, 2024)

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Annexure:-

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List of Exhibits marked by Applicant

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Detailed Schedule of Immovable Property.

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TA No.1736/2023(E) 9

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06.11.2024

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Exhibits marked by applicant bank

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Sl. No.	Description of Documents	Exhibit No.
	AW-1
1.	ApplicationbyDefendant dated 03.03.2011	A-1
2.	Sanction LetterbyApplicantBankdated 05.03.2011	A-2
3.	Demand Promissory Note for Rs.20 Lakhs by Defendant dated 08.03.2011	A-3
4.	LetterofUndertaking andrepayment dated 08.03.2011	A-4
5.	HousingLoan Agreement dated 08.03.2011	A-5
6	Memorandumofdeposit oftitle deed dated11.04.2011	A-6
7	Statement of Accounts	A-7
8	Sale Agreement executed between Mr. N. Anandhan and M.D. Sareesh Kumar the borrower herein dated 25.12.2010	A-8
9	Construction Agreement executed between M.D. Sareesh Kumar and M/s. Vishnuram Builders. dated 25.12.2010	A-9
10.	Sale Deed in favour of M. D. Sareesh Kumar by Regd. DocNo.1378/2011dated 08.03.2011	A-10

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	AW-2
11	Complaint byApplicant’sHead Office dated20.04.2013	A-11
12.	FIR Copy by CBI/ACB dated22.08.2013	A-12
13	Request letter by applicant bank to the Inspector of Police, CBI,ACBdated24.03.2022	A-13
14	Request letter by applicant bank to the Inspector of Police, CBI,ACBdated 09.05.2022	A-14
15	ProofofSBaccount belonging to defendant	A-15
16	Address proofofdefendant	A-16
17	Request letter by defendant	A-17

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Sd/(A.S.JAYACHANDRA) PRESIDING OFFICER (In-charge) DRT-III, CHENNAI

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TA No.1736/2023(E)

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06.11.2024

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Schedule of immovable property

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All that piece and parcel of land and building bearing G-1, Block 1, Ground Floor, measuring 818 sq.ft., along with the 7.75% (325.50 sq.ft.) undivided share out of 4200 sq.ft., bearing Plot No. 1, Second Street, M.G. Chakrapani Nagar, Krishna Nagar, Madhuravoyal Village, Ambattur Taluk, Thiruvallur District, Comprised in Survey No. 320/2 situated within the Sub – Registration District of Virugambakkam, Registration District of Chennai South.

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Boundary Areas:

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North by	:	Property belongs to Mr. Ramamurthy
South by	:	Road
East by	:	Property belongs to Mr. Ponnusamy
West by	:	Survey No. 303

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The Property lies in the Registration District of South Chennai and Sub – Registration District of Virugambakkam.

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Sd/(A.S.JAYACHANDRA) PRESIDING OFFICER (In-charge) DRT-III, CHENNAI

Indian Overseas Bank v. Sareesh Kumar

Case brief

What is this about?

What did the court decide?

Indian Overseas Bank v. Sareesh Kumar

Case brief

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What did the court decide?

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