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Judgment
G. Chandrasekharan, Chairperson
This appeal is filed under Section 20 of RDB Act challenging the final order passed by the Ld. Presiding Officer, DRT - II, Chennai in OA 135/2010 dated 05.06.2018.
The respondent bank filed OA 135/2010 for recovery of a sum of Rs.18,66,035.60p lent towards housing loan facility together with pendent lite interest @ 18% per annum from appellants. After contest, this OA was allowed. Challenging the order of allowing the OA, this appeal is filed by the respondents below.
From the pleadings and the submissions made before the DRT and before this Tribunal, it is not in dispute that the appellants availed the loan facility and executed loan documents including the creation of mortgage. Ld. Counsel for appellants challenged the impugned order mainly on the ground that after filing of OA and before the disposal of OA, appellants had made several payments to the tune of Rs.22,46,430/-. It is the submission of Ld. Counsel for appellants that for the loan amount of Rs.16,55,000/-, appellants made a payment of Rs.30,70,900/-. In fact, appellants made a payment of Rs.4,62,498/- in excess of the amount recoverable from appellants. Appellants made an attempt to file proof affidavit along with audit statement with regard to these payments before the DRT. That was returned on the ground that the chance for filing Counter Proof Affidavit was closed on 02.05.2018 and therefore, the Counter Proof Affidavit along with memo cannot be accepted. Ld. Counsel produced the said CPA along with memo and audit statement, which has the seal of DRT – II, Chennai dated 14.05.2018. Without giving an opportunity to the appellants to produce CPA and evidence in support of the payments made, the Ld. Presiding Officer chose to close the opportunity and recorded that CPA was not filed and no document was marked from the side of defendants and passed the impugned order. Ld. Counsel further submitted that IA 178/2023 for receiving the following additional documents, has been filed in this appeal.
Sl. No.
Description of documents
1.
Statement of Accounts of respondent bank
2.
Citi Bank current home loan interest
3.
Axis bank current home loan interest
4.
RBI Guidelines
5.
Total amount statement
As per the claim made in the OA which was filed on 16.06.2010, the respondent bank claimed a sum of Rs.18,66,035.60p with pendent lite interest @ 18% per annum till the date of realization. Therefore, the amount determined by the respondent bank was Rs.18,66,035.60p. As per the statement of account given by the bank which is produced in Pg. Nos. 1 to 14 of the additional typeset, the amount paid and received by the bank from 25.06.2010 was not considered by the DRT for determining the amount due from the appellants. As per this account statement, appellants made a total payment of Rs.26,28,814/- directly to the bank. As per the order of this Tribunal, a sum of Rs.4,00,000/- was deposited on the file of DRT – II in fixed deposit on 05.10.2017 and it is still available with the Registry, DRT – II, Chennai. Thus a total sum of Rs.30,28,814/-was paid. Therefore, Ld. Counsel for appellants submits that the order passed by the Ld. Presiding Officer, without considering these payments cannot be sustained and Ld. Counsel prays for consideration of this amount and dismiss the claim of the respondent bank.
In reply to this submission, Ld. Counsel for 2nd respondent bank submitted that ex-parte order was passed against the appellants in 2011 itself. Only after a long delay, the ex-parte order was set aside on deposit of Rs.5,00,000/- before this Tribunal and Rs.4,00,000/- before DRT – II, Chennai. The said Rs.5,00,000/- was received by the respondent bank and it is also reflected in the statement of accounts given by the bank. The said Rs.4,00,000/- which is available with DRT – II, Chennai, is not yet received by the bank. Appellants have not produced this account statement before DRT and have not even filed Counter Proof Affidavit. Therefore, appellants cannot file additional documents now. So submitting, Ld. Counsel prays for confirmation of the order of the Ld. Presiding Officer and dismissal of this appeal.
Considered the rival submissions and perused the records.
Additional documents filed by the appellants are absolutely necessary for the disposal of this Appeal. Thus, IA 178/2023 filed by appellants to receive additional documents is allowed. These additional documents which are mentioned above are marked as Ex.R1 to Ex.R5.
As indicated already, the OA was filed on 16.06.2010 claiming a sum of Rs.18,66,035.60p as due as of May 2010 along with pendent lite interest @ 18% per annum. The account statement given by the bank is produced as additional document no.1. It is issued by the respondent bank and therefore respondent bank cannot question the genuineness of this account statement. From this account statement, it is apparent that the amount paid by the appellants, which is shown in Pg.Nos. 6 to 13, starting from 25.06.2010 till the date of passing the order on 05.06.2018, were not considered by the Ld. Presiding Officer. The payment details that is not considered are as follows:
Sl. No.
Transaction Date
Repayment received
1
25.06.2010
50,000/-
2
09.07.2010
2,38,160/-
3
17.08.2010
15,000/-
4
14.09.2010
14,000/-
5
16.09.2010
7,600/-
6
09.11.2010
15,000/-
7
29.11.2010
5,000/-
8
29.11.2010
10,000/-
9
30.12.2010
18,000/-
10
29.01.2011
17,000/-
11
05.03.2011
18,000/-
12
26.03.2011
18,000/-
13
23.04.2011
19,000/-
14
26.04.2011
1,512/-
15
16.05.2011
19,514/-
16
17.06.2011
19,514/-
17
22.07.2011
19,514/-
18
29.07.2011
23,952/-
19
24.08.2011
21,114/-
20
30.08.2011
10/-
21
27.09.2011
21,124/-
22
02.11.2011
6,124/-
23
02.11.2011
15,000/-
24
25.11.2011
21,124/-
25
29.12.2011
21,124/-
26
28.01.2012
21,124/-
27
29.02.2012
21,000/-
28
27.03.2012
21,000/-
29
28.04.2012
21,000/-
30
30.05.2012
20,000/-
31
27.06.2012
20,000/-
32
30.08.2012
21,874/-
33
26.09.2012
2,500/-
34
08.10.2012
21,000/-
35
26.10.2012
150/-
36
27.11.2012
21,875/-
37
31.12.2012
21,900/-
38
30.01.2013
21,900/-
40
28.02.2013
21,800/-
41
21.03.2013
21,875/-
42
24.04.2013
21,875/-
43
28.05.2013
21,875/-
44
29.06.2013
21,875/-
45
31.08.2013
21,875/-
46
09.05.2016
2,40,000/-
47
23.03.2018
5,18,126/-
Subsequent to the order passed by the DRT, there was a payment of Rs.4,35,627/- on 25.03.2022, towards the penal interest. The fact remains that the sums extracted above has not been considered by the Ld. Presiding Officer, at the time of passing the order. This Tribunal on 29.11.2024 directed the Ld. Counsel for respondent bank to file calculation memo / account statement with regard to the amount paid by the appellants after the filing of OA and before the disposal of OA. Despite specific direction, the respondent bank has not produced any calculation memo or account statement.
In the said circumstances, this Tribunal sets aside the order of the Ld. Presiding Officer, DRT – II, Chennai in OA 135/2010 and passes the following order:
i. The respondent bank is entitled to receive the amount if any, due to the bank after giving credit to the amounts mentioned and other amounts received, along with interest at the rate of 6% per annum from the date of filing of OA till the date of realization together with costs.
ii. At the time of computing the amount, the penal interest should also be considered in accordance with RBI Guidelines.
iii. After giving credit to the payments made, if any amount is liable to be paid by the appellants to the respondent bank, the respondent bank is entitled to recover the same by sale of schedule property. Accordingly, Recovery Certificate is ordered to be issued.
iv. Bank is directed to file calculation memo before the DRT, within a period of one month from the date of receipt of this order, for the issuance of Recovery Certificate.
With the above directions, this Appeal RA 6/2019 is disposed of.
Parties shall bear their own costs. Pending IAs, if any, stand closed.