BANK OF BARODA v. MOHAMMED ASHFAK

OA 100/2011 2

2. The defendants were duly served with summons. But they neither appeared nor were they represented and thus they were declared exparte on 14.06.2012.

3. On the showing of the applicant bank itself, as could be seen from the statement produced along with OA, it has debited Rs.2,635/- by way of penal interest in the term loan (housing loan) account. It is well settled that penal interest cannot be capitalised and no interest can be charged on penal interest. If any authority is required we find the same in the decision of the Hon'ble Supreme Court in Central Bank of India

v. Ravindra [reported in (2002) 1 SCC 367]. The applicant bank, therefore, is not entitled to get any interest on the aforesaid penal interest of Rs.2,635/-.

4. The case of the applicant bank regarding recovery of the sum of Rs.16,87,136/- claimed as due under Ext.A9 statement of account relating to the term loan (housing loan) as on 21.02.2011 with interest pendente lite and post decree interest on the sum of Rs.16,84,501/- (after deducting the penal interest portion - Rs.2,635/-) from the defendants jointly and severally and by sale of the schedule property is proved by the proof affidavit of its Senior Branch Manager, AW1 and Exts.A1 to A9. (In view of the order dated 03.04.2013 in IA No.1131/2013, the certified copies of the documents produced along with the proof affidavit have been received; and the original documents had been handed over to the CBI for investigation purpose.) Having regard to the amount advanced, the interest and the penal interest applied, the meagre repayments effected, and the chronic default committed, I am of the view that the applicant bank is entitled to get interest pendente-lite and post-decree interest @11.50% per annum with monthly rests.

5. The Tribunal during the pendency of the OA had passed an order of conditional attachment on 18.08.2011 vide IA No.630/2011 over the property scheduled thereto (OA schedule property) belonging to the 1^stdefendant. As the 1^stdefendant failed to furnish security for the required sum or to show cause why such security should not be furnished within the stipulated time, and remained exparte, the attachment over the said property has been made absolute on 14.06.2012.

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OA 100/2011 3

6. The applicant bank, therefore, is entitled to get a final order on the following lines:-

"In the result, the applicant bank is given a final order allowing it to recover the sum of Rs.16,87,136/- (Rupees Sixteen lakhs eighty seven thousand one hundred and thirty six only) with further interest on the sum of Rs.16,84,501/- (Rupees Sixteen lakhs eighty four thousand five hundred and one only) @11.50% per annum with monthly rests from 22.02.2011 to till realisation and also its costs from the defendants jointly and severally and by sale of the schedule property."

7. The schedule to the OA shall be appended to this order.

8. Communicate copy of this order to both parties as provided in R.16 r/w R.2(c) of the Debts Recovery Tribunal (Procedure) Rules, 1993. (Dictated to my PA directly on the computer, corrected and pronounced by me in the open Tribunal on this the 18^th day of June, 2013)

[ V. SUBRAMANIAN ]

PRESIDING OFFICER

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Appendix OA 100/2011 4

A P P E N D I X

Witness for Applicant:

AW1: T.L.Davis, Senior Branch Manager of the applicant bank. Witness for Defendant(s): Nil

Applicant's Exhibits

Ext.No. Date Particulars of documents A1 11.11.2005 Certified copy of loan agreement for individual (housing loans) executed by the defendants in favour of the applicant bank. A2 11.11.2005 Certified copy of demand Promissory Note for Rs.11 lakhs executed by the defendants in favour of the applicant bank. A3 11.11.2005 Certified copy of letter of instalment with acceleration clause executed by the defendants in favour of the applicant bank. A4 11.11.2005 Certified copy of declaration-cum-undertaking-cum authority executed by the defendants in favour of the applicant bank. A5 04.11.2005 Certified copy of memorandum of deposit of title deed regarding creation of mortgage by the 1^stdefendant, prepared by the applicant bank.

A6 05.11.2005 Certified copy of letter of confirmation of equitable mortgage executed by the 1^stdefendant in favour of the applicant bank. A7 04.11.2005 Certified copy of declaration executed by the 1^stdefendant in favour of the applicant bank.

A8 17.08.2004 Certified copy of sale deed No.2626 of Manjeshwar SRO. A9 ... Certified copy of the statement of account relating to the term loan (housing loan).

Defendants' Exhibits - Nil

(PRESIDING OFFICER)

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IN THE DEBTS RECOVERY

TRIBUNAL, ERNAKULAM

(KERALA AND LAKSHADWEEP)

PRESENT: SRI.V.SUBRAMANIAN

PRESIDING OFFICER

Dated the 18^thJune, 2013

OA NO.100 OF 2011

Between Bank of Baroda, Kasaragod Branch, Kasaragod. …Applicant And

Mohammed Ashfak, S/o.Ismail Soopy, residing at:

Bhoppai Thotty, Uppala.P.O.,

Kasaragod

and another. ...Defendants

F I N A L O R D E R

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IN THE, DEBTS RECOVERY TRIBUNAL. ERNAKULAM

V

(KERALA AND LAKSHADWEEP)

i-.+

D.IT.C. NO.39I8IN ORIGINAL APPLICATION NO. lOO OF 2011 I{ ECOVERY CERTIFICATE

Ilctlveen

Bank of Baroda,

Kasaragod Branch.

Kasaragod.

.... ....Applicant/Certificate holder^bank And

l. Mohammed Ashfak,

Sio.lsmail Soopy.

residing at:

BhoppaiThotty,

Uppala.P.O.,

Kasaragod.

2 Athiya Banu. W/o.Mohammed Ashfak, residing at:

(*^z.^-.^{g^:-,,T^r. ,, Bhoppai Thotty, Hlii,,i_loo

{#};: i ...........Defendants/certificate Debtors [,[o \% i | 'Wh"r.ur, t;, ,,,i, ,' the above titled Original Application under Section 19(1) of (-*"*f;he'R..ou".y of Debts Due to Banks and Financial Institutions Act 1993 (hereinafter referred to as.'the Act', for short) having come up before me on this, the lSth day of June, 2013 for final disposal and determination of the debt against the defendants.

2. It is hereby ordered and certified under the provisions of sub-section /

22 of Section 19 of the Act for recovery of the sum of <16,87,136/- (Rupees Sixteen Iakhs eighty seven thousand one hundred and thirty six only) with further interest on /

the sum of {16.84,501/- (Rupees Sixteen lakhs eighty four thousand five hundred and %_

besparched on -.!*/*!,*y:

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DRC No.3918 in OA No.100/2011 2 ,{' f

one only) @1150% per annum with monthly rests from 22.02.201 I to till realisation vf and also the sum of {84,067l- (Rupees Eighty four thousand arid sixty seven only), as the costs of the applicant/certificate holder bank, from the defendants/certificate debtors jointly and severally and by sale of the schedule property.

3. Given under my hand and the seal of this Tribunal on this, the 18th day ofJune.2013.

G\-* *

( V. SUBRAMANIAN )

PRESIDING OFFICER

rffi

Prcparcd br Surcsh

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DRC No.3918 in OA No.100i2011

CF],RTIFICATE

I sLryo. Item o/'untount lo be recovereel

I

Arr"rrffi recovered' from^the

16,87,136.00

defendants/certificate debtors jointly and severally and by sale of the schedule

ith monthlY rests^from

5,13.988.71

22.02.2011 to 18.06.2013 127 months and 28 daysl^on < 16.84,501/- f'

Costs allowed

frt"f ,. * 18.06.2013 to^be recovered from the def"e-nrdrarrntts /ccrtificate debtors jointly and severallv 22,85,191.71 ancl by sale of the scheduie

(Rupees Twenty two lakhs eighty Jive thousuncl one huntlrecl ninety one and poise

seventy one onlY).

DETAILS^OF COSTS

Costs memo tiled.on 25.06.2913 S/.Na. Ilem of costs Claimed

Remurks ftn7)

1) Fee paid on Application

19,000.00 19.000.00

Ex-parte Order

2) Senior Advocate's^Fee96,800.00 43,378.00

3) Junior Advocate's^Fee28,933.00 21.689.00

s) Petition^Fee500.00 ⁰ Not allorved

6) Miscellaneous expenses 500.00 ⁰ Not allowed

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Debts Recov.ery Tribunal, Ernakulam (Kerala and Lakshadweep)

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OA No.100l20ll

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