Allowed

State Bank of India v. Vagesh Kumar Pahatak

DRT12 Apr 2024TA/96/2022

Case brief

AI extract

What is this about?

The Tribunal allowed a transfer application under Section 19 RDBFI Act, 1993 filed by State Bank of India against the builder. It held that due to default in EMI and the tripartite agreement terms, the builder is liable to return funds to satisfy the bank dues.

What did the court decide?

The applicant bank was allowed the transfer application; Defendant No. 2 directed to pay Rs. 22,39,073/- with interest within 30 days.

State Bank of India versus Vagesh Kumar Pahatak — Banking and Recovery | DRT (2024)

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Before SUSHIL KUMAR RASTOGI, Presiding Officer Debts Recovery Tribunal-Il, Delhi

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TA No.96OF 2022

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STATE BANK OF INDIA Vs VAGESH KUMAR PATHAK & oRs.

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Reseryed on : 05.01.2O24 Pronounced on z L2.O4.2O24

STATE BANK OF INDI.A

-^{Applicant bank}

Vs.

Mr. Vagesh Kumar Pathak

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Mls. Manju J Homes India Limited

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Defendants

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Present: Mr. Pradeep Dhaka, Counsel appears for applicant bank.

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None for defendants.

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FINAL ORDER

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This original application has been flled by the applicant bank, on 08.04.2019 through Shri Sushil Kumar Chadha, Chief Manager of the applicant bank, under Section 19 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 against the defendant no. 1 and 2 for recovery of a sum of Rs.22,39,0731- together with cost, charges and pendentellite and future interest @ 11.10olo p.a. from date of filing of this T.A. till the realization in full.

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The brief facts of the case are that at the request of the defendant no.l the applicant bank sanctioned, on 30.07.2015, a Housing Loan Facility qA

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TANO.96of2022 2

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of Rs.21,78,000/- for purchasing Flat bearing No. I-10, Ground Floor, Tower-I, Red Apple Homez, Khasra No. 1109 & 1110, Village Morta, Ghaziabad, Uttar Pradesh. In order to avail the said loan facility the defendant no. t has executed loaning documents dated 30.07.2015 & 29.06.2015 in favour of the applicant bank. The defendant no.1 created an equitable mortgage in respect of subject propefi and deposited the title documents with the applicant bank. The defendant no.2 had issued permission to mortgage the subject property by defendant no.1 in favour of applicant bank. A Tripartite agreement dated 29.06.2015 has entered into between the defendant no.1, applicant bank and defendant no.2.

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It is further submitted that the defendants enjoyed and utilized the Loan facility, but failed to maintain the financial discipline and failed to repay the due amounts. The applicant bank requested the defendants to regularize the loan account by visits and letters, but there was no response from the defendants, hence the account was classified as NpA on 31.01.2019. Therefore, the applicant bank served a legal notice dated 07.03.20t9 to the defendants, demanding the amount due as on that date, but failed to recover the same. Thus, the present T.A. is preferred by the applicant bank to recover its dues.

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On notice by this Tribunal, defendants no. 1 put appearance through counsel but failed to file written statement in time. The defendant no.2 failed to put t -// **A

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TA NO.96of2022

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appearance at all despite of

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publication. Hence

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defendant no.l & 2 were proceeded against ex-parte on 12.10.2023.

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The applicant bank has also filed documentary evidence in support of the TA as paper no.l to paper no. 66.

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Heard the Ld. Counsel of applicant bank and perused the records. From perusal of the record it is clear that at the time of executing loan documents the applicant bank has entered into a Tripaftite Agreement with the builder along with the borrower. Para 2 & 5 of the Tripartite agreement is as follows:-

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"2. in the event of default in the repayment of Loan and/ or the Borower(s) committing any other default which makes the turrower(s) liable for the repayment of the entire amount ouBbnding in the said loan as per the terms of the Loan Agr*ment exuuted betwen the Borrower(s) and the SBI, the Builder shall, at the call of SBI, be under obligation to cancel the booking and pay all the amounts received by the Builder from the Borrower(s) or on behalf of the Borrower(s) to the SBL

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That in the event of failure of the builder to complete the project, the builder shall pay the entire money e receivd by it from the borrower(s) to the SBI'i

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As per conditions contained in the Tripartite Agreement dated 29.06.2015 at para no.2 & 5, in case of default by the borrower the amount which has \ .,' ss"'

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TANO.96of 2022

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been^paid by the borrower to the builder has to be returned to the bank. In the present case the borrower has made default in repayment of the EMIs and therefore, as per condition agreed between the parties, the builder is under obligation to return the entire amount which he has received from the borrower or from the applicant bank in lieu of the payment of the construction of the flat. Moreover, from the perusal of the entire facts it is apparent that the borrower has taken the loan and the loan amount has been paid to the builder for construction of the flat. The applicant bank has not claimed that the builder in violation of the terms and conditions has handed over the flat to the defendant no.1. The borrower has not taken any amount in his account and the entire amount has been^paid to the builder. In addition to this the borrower has also paid the margin money to the builder and also paid certain EMIs as mentioned by the applicant bank. The borrower has not got the^possession of the flat. If the borrower is directed to pay the amount which has been actually paid to the builder this will amount double penalty on the borrower. The borrower has received no money and has still paid the margin money and also certain EMIs to the bank and has got in return nothing. In such circumstances and as^per agreed terms and conditions it is only the builder who is liable to pay the defaulted amount to the applicant bank.

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In the light of the above discussions, the present Transfer Application deserues to be allowed against defendant no. 2.

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TA NO. 96 of2022

ORDER

I hereby allow this T.A. of the Applicant Bank and direct the defendant no. 2 to^pay to the applicant bank within 30 days from today, a sum of Rs.22,39,073/- along with cost, expenses and interest @^10o/o simple from the date of^filing of^{this T.A. till} the date of realization.

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In case of failure to deposit the above amount within the stipulated period, the same shall be recovered from the sale of the moftgaged^property bearing no. I-10, Ground Floor, Tower-I, Red Apple Homez, Khasra No. 1109 & 1110, Village Mofta, Ghaziabad, Uttar Pradesh. In case of short fall, the same shall be recovered from the sale of^personal movable and immovable assets of the defendant no. 2.

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Recovery Ceftificate be issued forthwith and be sent to Recovery Officer, Debts Recovery Tribunal-Il, Delhi.

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The registry of this Tribunal is hereby directed to issue free copy of the order and send the same to both the^parties.

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e,<br>

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TANO.96of 2022 6 5) Parties are direct to appear before the Ld. Recovery Officer, DRT-II, Delhi on 1t.06.2024. Pending IAs, if any, stand disposed of. File be consigned to records. e^d,in Date:. 12.04.2024 (SUSHIL KUMAR RASTOGI)_ -t'l PRESIDING OFFICER DRT-II, Delhi This^judgement has been signed, dated and pronounced in open court. ( sA ,'rA^u'r,tl Date: 12.04.2024 (SUSHIL KUMAR RASTOGI) PRESIDING OFFICER DRT-II, Delhi

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State Bank of India v. Vagesh Kumar Pahatak

Case brief

What is this about?

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State Bank of India v. Vagesh Kumar Pahatak

Case brief

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