1. Axis Bank Limited (hereinafter referred to as the Applicant Bank) has filed this Original Application (for short, the O.A.) under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for recovery of a sum of Rs. 33,17,765/- (Rupees Thirty Three Lacs Seventeen Thousand Seven Hundred Sixty Five Only) along with interest @ 24% per annum with monthly rests from the date of filing of the O.A. till realization from Defendants 1 to 3 jointly and severally.
2. Succinctly, the case of the Applicant Bank, as seen from the averments made in the O.A., is as follows:
That the Defendants No. 1 & 2 approached the Applicant Bank for availing Home Loan Facility for purchasing the property bearing No. Unit No. 2004, 2nd Floor, Xenious Service Apartment Sector-5, Vasundhara, Ghaziabad-201010, having super area 700 Sq. Ft situated at Xenious Service Apartment sector-5 Vasundhara, Ghaziabad-201010 (In Short, Property In Question) in project named 'XENIOUS SERVICE APARTMENTS' being developed by the D-3/builder. D-1 & 2 submitted the Loan Application and other requisite documents as required under KYC norms to the Applicant Bank. Believing the representation made on behalf of D-1 & 2 to be true and on the basis of documents executed by them, Applicant Bank sanctioned a Loan of Rs. 33,00,000/- (Rupees Thirty Three Lacs) vide Sanction Letter dated 09.09.2014 to the D-1 & 2 under the Loan Account No. PHR0361139769. As per the terms and conditions of the Loan Agreement dated 11.10.2014, D-1 & 2 had agreed to repay the said Loan amount of by way of 300 equated monthly installments of Rs. 30,571/- each along with interest (5)10.25% per annum. D-3 issued permission on 20.09.2014 to Mortgage the property in question in favour of the Applicant Bank for securing the said Loan Facility and D-3 also entered into the Tripartite Agreement dated 20.09.2014 with D-1 and Applicant Bank. Pursuant to completion of all the formalities and execution of necessary documents and at the request of D-1 & 2, the Applicant Bank has paid and disbursed the Loan amount of Rs. 33.00 Lacs to the D-3. After availing the said Loan Facility, D-1 & 2 failed to adhere to financial discipline and committed wilful defaults in repayment schedule, the cheques/ECS issued by the Defendants for securing the timely payment of the EMIs were dishonoured for Insufficient Funds. Defendants served with various Notices and repeated reminders but the Defendants neither replied nor made any efforts to repay the outstanding amount. Applicant Bank was constrained to terminate the Facility Agreement vide Legal Demand Notice dated 26.12.2017 calling upon Defendants to make good the foreclosure value. However, the Defendants wilfully neglected and failed to pay the overdue amount. Defendants are liable to pay the sum of Rs. 33,17,765/- (Rupees Thirty Three Lacs Seventeen Thousand Seven Hundred Sixty Five Only) along with future interest thereon to the Applicant Bank as on 19.12.2017. Hence, by filing of the present O.A., Applicant Bank has prayed for issuing a Recovery Certificate for recovery of the O.A. amount along with future interest @ 24% per annum till realization against the Defendants jointly and severally.
3. Notice was issued to the Defendants. Despite service through Notice Defendants appeared and filed their Written Statements and raised certain issues, resisting the claim of the Applicant Bank.
4. In Written Statement of Defendants, Defendants resisted the claim of the Applicant Bank and contended that the present O.A. is totally misconceived, motivated and liable to be dismissed with costs. It is submitted that the present O.A has not been filed by any competent/authorised person on behalf of the Applicant Bank and also the present OA is not maintainable under law and on the facts as the same is false, misleading, vexatious and unwarranted and the same is liable to be dismissed. It is further submitted that the Applicant Bank has not filed the clear and actual statement of account.
5. To prove its case, the Applicant Bank has filed an affidavit of Mr. Abhinav Pandey, Assistant Manager of Applicant Bank by virtue of Special Power of Attorney dated 16.05.2016 and he has reiterated the case of the Applicant Bank as stated in the O.A. The Applicant Bank has also tendered documents Ex. AW 1/1 to AW 1/12 and also marked as Mark-A. On the other hand Defendants No. 1 & 2 filed evidence affidavit but not exhibit any document in spite of several opportunity, hence their right to file evidence stands closed.
6. I have heard the counsel for both the parties and have also gone through the pleadings and evidence on record.
7. Now the point for consideration is whether the Applicant is entitled for recovery of the outstanding claimed amount in the O.A. from the Defendants, as prayed for?
8. A perusal of evidence affidavit of Mr. Abhinav Pandey, Assistant Manager, who has reiterated the case of the Applicant Bank, read with Special Power of Attorney dated 16.05.2016 in his favour is exhibited as Ex. AW 1/1 and further Power of Attorney dated 15.9.2016 of earlier AR(Legal Manager) Mr. Aman Deep Chugh is marked as Mark "A". AW-1 deposed that the, documents including Purchaser's Agreement receipts executed between D1 & 2 and D-3 is exhibited as Ex. AW 1/2, Home Loan Application is exhibited as Ex. AW 1/3, Home Loan offered vide Sanction/offer Letter dated 09.09.2014 is exhibited as Ex. AW 1/4, Loan Agreement dated 11.10.2014 is exhibited as Ex. AW 1/5, D-1 executed the power of attorney dated 11.10.2014 in favour of the Applicant Bank is exhibited as Ex. AW 1/6, Tripartite Agreement dated 20.09.2014 is exhibited as Ex. AW 1/7 and permission to Mortgage dated 20.09.2014 is exhibited as Ex. AW 1/8. AW-1 further deposed that the Foreclosure Statement of Accounts is exhibited as Ex. AW 1/9, Certified Statement of Accounts, certified copy of Loan pay off dated 19.12.2017, the certificate under section 2A of Bankers book evidence Act and the certificate under section 6+5B is exhibited as Ex. AW 1/10, Valuation report is exhibited as Ex. AW 1/11 and Legal Demand Notice dated 26.12.2017 with postal receipt is exhibited as Ex. AW 1/12(Colly).
9. As against the said contentions, Defendants filed the Evidence Affidavit reiterating the case stated in the WS, admitting the availment of the credit Facility but contended that the Applicant Bank has not filed true facts of this case and the present OA has not been filed by the duly authorized person of the Applicant Bank and raised the issue that the present OA is without any cause.
10. Record reveals that Defendants signed, executed and delivered all the security documents to the Applicant Bank as mentioned in their written statement while availing credit Facility. Defendants never raised any issue when they were availing the credit Facility. The issues have been raised in the written statement. Defendants claimed that the present OA has not been filed by the duly authorized person of the Applicant Bank and the Bank has not supplied the actual statement of account. To the contrary, a perusal of the record would reveal that the Applicant Bank has filed the present O.A. through its Authorized Representative, namely Shri Abhinav Pandey, Asstt. Manager/Principal Officer, who was authorized by the Applicant Bank to do so through Special Power of Attorney dated 16.05.2016 Ex. AW-1/1 executed in his favour, which clearly shows that the SPA holder is duly authorized person of the Applicant Bank. More so, the present O.A. cannot be dismissed on this technical ground as held by Hon'ble Supreme Court in UBI Vs Naresh Kumar & Ors., : AIR 1997 SC 3. Applicant Bank further exhibited the Ex. AW-1/9 & Ex. AW-1/10 which clearly shows that the statement of account and foreclosure which is filed by the Applicant Bank under the Banker book evidence Act. Hence it is proved that the Applicant Bank has filed true and actual statement of account and further the present OA has been filed by the duly authorized person on behalf of the Applicant Bank. On perusal of records, I do not find any merit in this issue and hence the same is rejected.
11. Further, the Defendants have in the written statement under reply not denied the factum of the Sanction, the Defendants in order to avoid their legal liability and obligation towards the Applicant Bank of paying back the Loan has gone up to the extent of raising such issues which have no merit in the present case. Hence, the Defendants have miserably failed to disprove well established case of the Applicant Bank.
12. In my considered view, the witness of the Applicant Bank has fully corroborated the averments made in the OA. Even otherwise the whole case of the Applicant is based on documents and the witness has duly proved all these documents. In my view there is no question of disbelieving the evidence lead by the Applicant and the Applicant has proved its case beyond reasonable doubts and Application/s, if pending, is/are also disposed off with this OA. The liability of Defendants No. 1 to 3 is joint and several.
13. In the result:
(i) The present O.A. is allowed with costs. The Applicant Bank is entitled to recover a sum of Rs. 33,17,765/- (Rupees Thirty Three Lacs Seventeen Thousand Seven Hundred Sixty Five Only) along with interest @ 10.25% per annum simple from the date of filing of the present OA till realization from the Defendants, jointly and severally. The Defendants are directed to pay the decretal amount along with interest to the Applicant Bank within 60 days from today, failing which the same shall be recovered from sale Mortgage property i.e. Unit No. 2004, 2 Floor, Xenious Service Apartment Sector
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-5, Vasundhara, Ghaziabad-201010, having super area 700 Sq. Ft situated at Xenious Service Apartment sector-5 Vasundhara, Ghaziabad-201010. In case of any shortfall, the same shall be recovered from the sale of other movable and immovable assets of all the Defendants 1 to 3, jointly and/or severally. Restrained order dated 24.03.2018 restraining the defendants from alienating or creating any sort of encumbrances in respect of property as mentioned above, is made absolute. (ii) The Applicant Bank is directed to file the revised statement of account before the Recovery Officer, DRT-II, Delhi. (iii) The Recovery Certificate be issued forthwith and be sent to Recovery Officer, Debts Recovery Tribunal-II, Delhi. (iv) The Registry of this Tribunal is hereby directed to issue the free copy of this order and send to the both parties. (v) Parties are directed to appear before the Ld. Recovery Officer, DRT-II, Delhi on 07th April, 2020. (vi) I.A/s if any pending stands closed. (vii) File be consigned to records.