jayant julka.doc
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For use in Tribunal’s Office:
Date of filing____________________________
Date of receipt by post____________________
Registration No.___________________________
BEFORE THE HON’BLE DEBTS RECOVERY TRIBUNALAT LUCKNOW
ORIGINAL APPLICATION NO. OF 2013 (Under Section 19 R.D.D.B. & F.Is. Act, 1993)
I.C.I.C.I. Bank Limited
……………Applicant
Versus
Mr. Jayant Julka & Others
..…………Defendants
BEFORE THE HON’BLE DEBTS RECOVERY TRIBUNAL
AT LUCKNOW
ORIGINAL APPLICATION NO. OF 2013 (Under Section 19 R.D.D.B. & F.Is. Act, 1993)
ICICI Bank Limited, a Banking Company under the Banking Regulation Act, 1949 having its Registered Office at Land Mark, Race Course Circle, Vadodara- 390 007 and Corporate Office at ICICI Bank Towers, Bandra-Kurla Complex, Mumbai-400 051 and amongst other places in the country a Branch Office at Aligarh Branch (U.P.) through its constituent Authority Mr. SUNIL SAXENA Area Debt Manager and his successors in office.
……………Applicant
Versus
1. MR. JAYANT JULKA
197, VAISHALI, PITAM PURA,
NEW DELHI- 110088
Also At:
FLAT NO. 18
GROUND FLOOR, TYPE-A
KRISHAN LOK
VRINDABAN, NH-2
MATHURA, UP.
Also At:
M/s DIMENSIONS AND TRAVELS PVT LTD
403, SETHI BHAWAN, 7 RAJENDRA PALACE
DELHI-110008
2. Mrs. Sangeeta Julka
197, Vaishali, Pitam Pura,
New Delhi- 110088
Also At:
FLAT NO. 18
GROUND FLOOR, TYPE-A
KRISHAN LOK
VRINDABAN, NH-2
MATHURA, UP.
…………
Defendants
APPLICATION UNDER SECTION 19 OF RECOVERY OF DEBTS DUE
TO BANKS AND FINANCIAL INSTITUTIONS ACT, 1993 FOR
RECOVERY OF Rs. 2,137,084.94 ALONG WITH PENDENTELITE
AND FUTURE INTEREST & EXPENSES.
1. DETAILS OF APPLICANT
1. NAME OF APPLICANT: ICICI Bank Limited
Address of Registered Office: Land Mark,Race Course Circle, Vadodara-390- 007
Address for service of Notices:
ICICI Bank Limited
31/54 Shalimar Tower
II floor Hazratganj
Lucknow
2. PARTICULARS OF DEFENDANTS:
1. MR. JAYANT JULKA
197, VAISHALI, PITAM PURA,
NEW DELHI- 110088
Also At:
FLAT NO. 18
GROUND FLOOR, TYPE-A
KRISHAN LOK
VRINDABAN, NH-2
MATHURA, UP.
Also At:
M/s DIMENSIONS AND TRAVELS PVT LTD
403, SETHI BHAWAN, 7 RAJENDRA PALACE
DELHI-110008
2. Mrs. Sangeeta Julka
197, Vaishali, Pitam Pura,
New Delhi- 110088
Also At:
FLAT NO. 18
GROUND FLOOR, TYPE-A
KRISHAN LOK
VRINDABAN, NH-2
MATHURA, UP.
2. JURISDICTION OF THE TRIBUNAL :
The Applicant declares that the subject matter in hand
is within the jurisdiction of this Hon’ble Tribunal in
terms of Section 19 of Recovery of Debts Due to Banks
and Financial Institutions Act, 1993 and that the
Hon’ble Tribunal is competent to pass a verdict on the
claim of Applicant.
3. LIMITATION:
Applicant further declares that the subject matter in hand
is well within the period of limitation for recovery of money
as prescribed in the Indian Limitation Act, 1961.
Defendant(s) has/have executed necessary documents for
securing the loan for an amount of Rs. 1,283,800/- applied
for, sanctioned on 30.12.2006 with the term of 15 years. .
Limitation occurs each & every transaction made by the
applicant as well as respondents also on each & every
bouncing of cheque/ECS. The credit facilities had been
recalled by several times by the applicant bank which was
duly acknowledged by the defendants and demand notice
under sec 13(2) of SARFAESI Act. 2002 dated 31.03.2011
addressed to defendants was duly served upon them
hence this O.A. is well within the period of limitation
requiring for issuance of a Recovery Certificate against
defendants by the Hon’ble Tribunal. It is pertinent to
mention Article 62 of Limitation Act, 1963 the period of
limitation is twelve years from the date of the amount
becomes due.
Hence this O.A. is well within the period of limitation
requiring for issuance of a Recovery Certificate against
defendants by the Hon’ble Tribunal.
3. FACTS OF CASE:
Brief necessary facts for decision on the claim of
Applicant Bank are being submitted hereunder:-
5.1 That ICICI Bank Limited is a Banking Company and comes
under the purview of Section 5 ( c) of the Banking
Regulation Act,1949 and having its Registered office at
‘Landmark’, Race Course Circle, Vadodara-390 007 and
Corporate Office at ICICI Bank Towers, Bandra-Kurla
Complex, Mumbai-400 051 and Branch Office at Agra (U.P)
at present …………………… Area Debt Manager and Principal
Officer of the Applicant Bank is fully conversant with the
facts and circumstances of the case and is able to depose to
the facts of the present application.
5.2 That the Defendants in the instant case are running an
organization with a name of M/s DIMENSIONS TOURS AND
TRAVELS PVT. LTD. The organization is recognized to one of
the Market Leaders as a full service Travel Agency that
specializes in Air Travels & Package Tours ( Both Domestic &
Out Bound) and provides recreational and business travelers
with professional services & consultations.
5.3 He holds an Authority Letter and is authorized from the
competent authority of the Applicant Bank to sign, verify
pleadings, institute suits, applications and all legal
proceedings to conduct and prosecute the same and to do
all other acts necessary in this behalf including engagement
of Counsel for the purposes of the case. He has also been
expressly authorized by letter of authorization dated
08.11.2012 issued by Mr. Rajiv Sabharwal, Executive
Director & Mr. Shanthi Venkatesan, Deputy General
Magager, ICICI Bank Limited, to file this Application
against defendants hence this Application has been signed
and verified by the person competent to do so. A true copy
of said Authorisation Letter is being filed herewith as
Exhibit No. A-1 to the Application.
5.4 That defendants have availed a Home Loan Facility by
submitting the home loan application form for an amount of
Rs. 1,283,800/- for purchasing the property bearing Flat no.
A-0018 Shri Krishna lok, area admeasuring 1,495
square meters situated at NH-2 Delhi- Agra Express
Highway , Vrindaban dist. Mathura(U.P.). The said
amount was sanctioned on 30.12.2006 in the Loan Account
numbered as LBMAT00001469970. Copy of said Loan
application is being filed herewith as Exhibit No. A-2 to the
Application.
5.5 That after considering into genuineness of the request and
requirement, the Regional Office of the Applicant Bank had
vide its letter dated 30.12.06 sanctioned and disbursed an
amount of Rs. 1,283,800 (Twelve Lakh Eighty Three
Thousand Eight hundred Only) clearly stating therein the
Terms and Conditions of the Home Loan Facility so granted
and specifically requiring the documents to be executed by
Defendants to secure the loan. The letter dated 30.12.2006
was duly acknowledged by the defendants thereby the terms
and conditions were accepted by them. CopyCopy of the letter
dated 30.12.2006 is being filed herewith as Exhibit A-3 to the
Application.
5.6 That the defendants availed home loan of Rs. 1,283, 800
(One Million Two Hundred Eighty Three Thousand Eight
Hundred Only) for the purchase of flat/house after executing
a loan agreement (hereinafter called the facility agreement)
on 30.12.2006 with the applicant Bank clearly stating the
terms and conditions of the loan facility and duly
acknowledged by the defendant. It is pertinent to mention
here that the loan was sanctioned and disbursed at the
adjustable interest rate FRR 10.75% per annum as on the date
of this facility agreement. Adjustable rate of Interest 9.5% per
annum (i.e. FRR + margin of 1.25%) term of repayment
180(EMIs) months & monthly installments of Rs.13,406/-
which is subject to change from time to time as per the
guidelines issued by the Reserve Bank of India. CCopy of
facility agreement is marked and annexed herewith as
Exhibit A-4.
5.7 That to secure the loan-facilities, as sanctioned above,
granted by the Applicant Bank, the defendants stood as
borrower as well as Co-borrowerfor the above Home Loan
Facility. The defendants have mortgaged their immovable
property bearing Flat no. A-0018 Shri Krishna lok, area
admeasuring 1,495 square meters situated at NH-2
Delhi- Agra Express Highway, Vrindaban dist.
Mathura(U.P.) in favour of applicant Bank by rendering the
Flat Buyers Agreement, Allotment letter, Permission to
Mortgage. It is pertinent to mention here that the Allotment
letter dated 08.09.2006 was issued by Shri Krishnalok Builders
in favour of the Defendants in which they have specified that
the defendants have been allotted Type A Flat bearing
number 008 with a total price of Rs. 19,95,000/-. The builders
have also requested the Defendants to draw a Demand Draft
in favour of them for the worth of Rs. 2,62,000/- as earliest but
not later than 25th September, 2006. Copy of the Allotment
letter dated 08.09.2006 is hereby annexed as Exhibit No. A-
5 to this O.A.
5.8 That a permission to mortgage was issued by CHD
DEVELOPERS vide letter dated 26.10.2006 as per which they
have stated that being a developer they have sold Flat NO. A-
0018 in the building called ‘Shri Krishnalok’ situated at NH-2
Delhi- Agra Express Highway, Vrindaban dist. Mathura(U.P.) to
Mr. Jayant Shukla for a total consideration of Rs. 19,35,200/-
under an agreement known as FLAT BUYERS AGREEMENT.
It has been stated as per the letter that the above captioned
property is free from all kinds of encumbrances and they have
also stated that they have no objection in providing the loan
to the defendants by keeping the flat as a security. They have
also noted a lien on the above said property and will also send
the registry documents to as soon as the formalities are
vitiated. Copy of the Permission to mortgage dated
26.10.2006 is hereby annexed as Exhibit No.6 to this O.A.
5.9 That a Flat Buyers Agreement dated 26.10.2006 was entered
into between CHD Developers Limited and Mr. Jayant Jhulka
s/o Late Shri S.P. Jhulka in regards to the above mentioned
property admeasuring 1495 sq. ft. As per the agreement the
buyer has authorized the developer to raise the finance/loan
from any bank by way of mortgage/charge/ securitization or
receivables on in any other mode with a condition that the
property should be free from all encumbrances at the time of
execution of the conveyance deed. It is pertinent to mention
here that the Developer/ Financial institution/bank shall have
the first charge on the said Flat for all the dues and other
sums payable by the buyer in respect of any loan granted.
Copy of the Flat Buyers Agreement is hereby annexed as
Exhibit No. A-7 to this O.A.
5.10 That defendant has signed an undertaking dated 30.12.2006,
as per which the defendants have declared that they shall
deposit the said agreement of conveyance executed in their
favour and also shall pay and discharge all dues and charges
in respect thereof. It is pertinent to mention here that the
defendants shall execute and sign all such document(s) that
may be required to be executed in form and manner as
suggested by applicant bank for creation of the necessary
security in the their favour . As per the undertaking the
Applicant bank would be at liberty to take actions which may
make them fit, if there is any kind of breach of any. Copy of
undertaking dated 30.12.2006 is marked and annexed
herewith as Exhibits No. A- 8 to the O.A.
PARTICULARS OF PROPERTY MORTGAGED.
Description of property mortgaged:
Immoveable residential Flat/house bearing no. Flat no.
A-0018 Shri Krishna lok, area admeasuring 1,495
square meters situated at NH-2 Delhi- Agra Express
Highway , Vrindaban dist. Mathura(U.P.)Aforesaid
properties detailed above is mortgaged in favour of the
Applicant Bank for the repayment of quantified loan amount
of Rs. 1,283,800 (Twelve Lakh Eighty Three Thousand Eight
hundred Only) as on together with interest and further
amount pendentelite and future interest till date of
realization to the satisfaction of the Applicant Bank.
1 Name of Mortgagor s :
1. MR. JAYANT JULKA
197, VAISHALI, PITAM PURA,
NEW DELHI- 110088
Also At:
FLAT NO. 18
GROUND FLOOR, TYPE-A
KRISHAN LOK
VRINDABAN, NH-2
MATHURA, UP.
Also At:
M/s DIMENSIONS AND TRAVELS PVT LTD
403, SETHI BHAWAN, 7 RAJENDRA PALACE
DELHI-110008
2. MRS. SANGEETA JULKA
197, VAISHALI, PITAM PURA,
NEW DELHI- 110088
Also At:
FLAT NO. 18
GROUND FLOOR, TYPE-A
KRISHAN LOK
VRINDABAN, NH-2
MATHURA, UP.
2. Name of Mortgagee:
ICICI Bank Limited.
5.7. That in the above manner the outstanding amount against
the defendants comes to Rs 2,137,084.94 ( Twenty One
Lakhs Thirty Seven Thousand Eighty Four & Ninety
Four paisa) together with interest and further amount
pendentelite and future interest till date of realization is
overdue upon the defendants.
5.8. That the defendants though availed the above Home Loan
credit facilities of the Applicant Bank under their due
promise reduced to writing to repay the entire amount
availed by them alongwith interest and other expenses
incurred therein and to operate the loan accounts in a
perfectly bona fide manner, the defendant betrayed their
promise and their accounts became irregular and sticky.
The defendants had started to siphon the moneys received
by them and did not route the payments through the
aforesaid loan-accounts standing in their names in the
Applicant Bank making their financial conduct susceptible.
5.9 That the defendants are trying to evade the liability and
dammed to care for their contract with the Bank having
entered into. The defendants are willful defaulter and trying
to evade their liabilities by wrong assurance and financial
misconduct.
5.10 That the Applicant Bank required the defendants to honour
their contractual commitment and to discharge their
contractual liability of repayment of outstanding amounts
but neither the oral request nor letters of Applicant Bank
could be able to move from their dishonest intention to
withhold the public-money and to impede the velocity
thereof and thus to hamper at the functioning of the
Applicant Bank.
5.11 That Applicant Bank had required the defendants to ensure
that the contractual commitments are discharged in a
bonafide manner and the Applicant Bank is not put to
hardships and to constrain it to seek legal redress against
them. Applicant Bank had also advised the defendants that
they are fully liable for payment of loan outstanding dues as
it is their joint and several liability and they shall ensure that
the payment of outstanding dues of loan amounts are
liquidated promptly lest hammer of law fall on them.
5.12 That the defendants were not moved and had never
considered of their contractual liability and their misconduct
had led the Applicant Bank to decide to proceed for legal
redress of recovery of outstanding dues.
5.13 That due to the non-payment of the monthly dues, which
remained outstanding for a period of 90 days therefore the
account was classified as Non-Performing Asset(N.P.A) as
per the guidelines or directions issued by Reserve Bank of
India. As per the legal procedure a Demand Notice under sec
13(2) dated 31.03.2011 was served through registered post
(the receipts of which has been annexed) by the Applicant
Bank detailing therein the amount outstanding with a
demand to discharge the loan liability together interest due
but the said notice went unheeded by defendants. Said
Notice had been duly served upon defendants but neither
the Notice was replied to by the defendants nor was any
amount paid to the Applicant Bank in discharge of their
contractual liability. Copy of the said Demand Notice dated
31.03.2011 alongwith the receipts of 13(2) Demand Notice
under SARFAESI Act, 2002 is being filed marked and
annexed herewith as Exhibit No. A-9 & 10.
5.14. That the officials of the Applicant Bank approached the
defendants several times for the repayment of overdue
amount against them and make them understand that due
of nonpayment of EMI’s the loan account become a bad debt
and non potential asset required them to pay the entire
overdue amount otherwise legal action would be taken
against them at their risk and cost, but defendants make
lame excuses and trying to evade the liability.
5.15. That as per Statement of Account extracted from the
Account Books of Bank maintained in its ordinary course of
business and duly certified in terms of Banker's Books
evidence Act, 1891 an outstanding dues of Rs
2,137,084.94 ( Twenty One Lakhs Thirty Seven
Thousand Eighty Four & Ninety Four paisa) as on
18.09.2013 together pendentelite and future interest till
date of realization is overdue upon the defendants for which
this Hon'ble Tribunal is required to issue a Recovery
Certificate for realization from the defendants. Certified
copy of Statement of Home Loan facility account is being
filed herewith as Exhibits No. A-11 to this O.A.
5.16. That loan facilities above mentioned had been secured
through documentation and the defendant is liable to pay
the outstanding dues jointly and severally the same having
been utilized by them. That the loan was sanctioned and
disbursed at the floating rate of interest which is subject to
change from time to time as per the guidelines issued by
Reserve Bank of India. As the outstanding dues of debt were
not discharged legal notice for payment thereof was sent
but no attention was paid by either the Borrowers/
Mortgagors.
5.17. That the above amount is recoverable additive with such
amount that gets generated pendentelite and future interest
in terms of the Loan Agreement is being claimed by the
Applicant Bank as balance outstanding. The outstanding
amount is recoverable from defendants as it is their joint
and several liability to repay the outstanding debt.
5.18. That at no point of time the defendants had ever disputed
the amount in question nor they had ever denied of their
liability of overdue amount.
5.19 That in view of above submissions the defendants are liable
to pay the outstanding dues of the debt of Applicant Bank
for a sum of Rs 2,137,084.94 ( Twenty One Lakhs Thirty
Seven Thousand Eighty Four & Ninety Four paisa) as
on 18.09.2013 together with future and pendentilite
interest on the loan outstanding alongwith the cost of
litigation with effect therefrom till date of actual realization.
6. CAUSE OF ACTION:
Cause of action for the Applicant Bank first arose on
allowing the loan facilities by execution of documents
securing the loan by creating continuous mortgages by the
defendant which continues till date and When the
defendants had finally been required to discharge their
overdue liability through demand notice u/s 13(2) of
SARFAESI, 2002, dated 31.03.2011 was send to pay the
outstanding amount of debt to the Applicant Bank.
It is pertinent to mention here that the cause of action arose
on each date when the entries of debits and credits reflect in
the statement of accounts.
7. RELIEF SOUGHT:
In view of above facts the Applicant prays for the following
relies:
A. Hon’ble Tribunal may kindly issue a Recovery Certificate for
recovery from the defendant a sum Rs. 3155602/- ( Thirty
One Lakhs Fifty Five Thousand Six Hundred and Two
Rupees Only) together with future interest thereon @
15.50% P.A. with monthly rest plus penal interest. on the
loan outstanding including cost of litigation with effect
therefrom till date of actual realization.
B. That the Applicant Bank be permitted to put the mortgaged
property on sale for recovering Rs 2,137,084.94 ( Twenty
One Lakhs Thirty Seven Thousand Eighty Four &
Ninety Four paisa) as on 18.09.2013 together with
pendentelite and further interest thereon @ 14.50% P.A.
with monthly rest plus penal interest from date of filing till
the date of actual realization.
C. For cost of this Application may be awarded to the Applicant
against the defendant.
D. For the Transfer of the money from the Business Account
accrued from M/s DIMENSIONS AND TRAVELS PVT LTD into
the Loan account until the realization of the money.
E. Any other suitable relief as the Hon'ble Tribunal may deem
just and proper may also kindly be awarded in favour of
Applicant and against the defendant.
8. INTERIM RELIEF PRAYED:
Pending final decision in the O.A. the Applicant prays for
issuance of following Interim Reliefs:
A. For possession, seizure and sale of all mortgaged asset of
the defendant.
B. To restrain by an order/injunction the defendant, his
servants and agents from alienating, dispensing with or
creating any charge in any manner whatsoever on the
mortgaged property pending disposal of the O.A.;
C. An ad/interim injunction may be issued directing the
defendant to make a true and faithful disclosure of all his
other immoveable properties, Bank Lockers, Fixed Deposits,
Bank Accounts and all such other business in which the
defendant has any interest;
D. And upon such disclosure to pass appropriate injunction
restraining the defendants from transferring, alienating,
encumbering, parting with possession and/or in any manner
dealing with such disclosed assets;
E. To pass an ad/interim ex-parte order for appointing a
commissioner and to direct such commissioner to proceed
to the addresses of immoveable and moveable properties of
defendants and to make a complete inventory of all items
and records found therein. The Commissioner be also
authorized to seek Police help for the purpose of executing
the Commission with a further power of break open locks
and seal the same and to give a further direction to
defendants that neither they nor their servants nor anybody
shall obstruct the execution of the Commission by the
Commissioner in the performance of his duties as ordered;
F. To attach such immoveable and moveable properties of
defendants or to appoint a Receiver as the Hon'ble Tribunal
may deem fit and proper to effectively secure full payment
of the claim of Applicant.
9. MATTER NOT PENDING WITH ANY OTHER COURT :
Applicant further declares that the matter regarding which
this Application has been made is not pending before any
court or Tribunal or any other authority.
10. PARTICULARS OF DEMAND DRAFT IN RESPECT OF
APPLICATION FEE:
a. Name of bank on which Drawn:
ICICI Bank Limited, Agra
b. Amount of Rupees Twenty Thousand only
c. Demand Draft No…………………Dated…………
d. Payable to The Registrar, Debts Recovery Tribunal, Lucknow.
11. DETAILS OF INDEX
An Index in duplicate containing the list of documents
relied upon is enclosed.
12. LIST OF ENCLOSURES
A complete list of documents enclosed with Application is
also filed herewith.
for APPLICANT
VERIFICATION
I, ……………………… Aged about ….. years son of Sri
…………………, Area Debt Manager, ICICI Bank Limited, 31/54
Shalimar Tower Hazratganj Lucknow duly authorized by Letter of
Authorisation by the Applicant Bank do hereby verify that contents
of paragraphs 1 to 12 above are true to my personal knowledge
and belief and from perusal of records and legal advice. I have not
suppressed or concealed any material fact.
Signed and verified on …th day of November, 2013 at Lucknow.
For APPLICANT
Through (SHYAM KUMAR RAI) ADVOCATE
COUNSEL FOR APPLICANT B-5, Shagun Palace,
Sapru Marg, Lucknow.
BEFORE THE HON’BLE DEBTS RECOVERY TRIBUNAL
AT LUCKNOW
ORIGINAL APPLICATION NO. OF 2013.
(Under Section 19 R.D.D.B. & F.Is. Act, 1993)
ICICI BANK LIMITED
……Applicant
Versus
Jayant Julka & ors. ……Defendant
INDEX
Sr.No.
DESCRIPTION EXHIBITNo.
PAGENo.
1. Memo of Original Application
2. Letter of Authorisation A-1
3. Copy of application form for loan by defendants
A-2
4. Copy of the letter Dated 30.12.2006 A-3
5. Copy of loan agreement dated 30.12.2006
A-4
6. Copy of the Allotment letter dated 08.09.2006
A-5
7. Copy of the Permission to mortgage dated 26.10.2006
A-6
8. Copy of the Flat Buyers Agreement
A-7
9. Copy of undertaking dated 30.12.2006
A-8
10. Copy of Demand Notice under section 13(2) of SARFAESI Act, 2002
A-9
11. Reciepts of 13(2) Demand Notice under SARFAESI Act, 2002
A-10
12. Statement of Accounts A-11
13. Affidavit in support of O.A
14. Registered Address of Parties
11.
Vakalatnama
Place: Lucknow Shyam Kumar Ray Advocate
Dated: /2013 Counsel for ICICI Bank Ltd
BEFORE THE HON’BLE DEBTS RECOVERY TRIBUNAL
AT LUCKNOW
ORIGINAL APPLICATION NO. OF 2013.
(Under Section 19 R.D.D.B. & F.Is. Act, 1993)
ICICI BANK LIMITED
………Applicant
Versus
Mr. Jayant Julka and others
……
Defendants
LIST OF DOCUMENTS
Place: Lucknow Shyam Kumar Ray
AdvocateDated: /2013 Counsel for ICICI Bank Ltd
BEFORE THE HON’BLE DEBTS RECOVERY TRIBUNAL
AT LUCKNOW
ORIGINAL APPLICATION NO. OF 2013.(Under Section 19 R.D.D.B. & F.Is. Act, 1993)
I.C.I.C.I. Bank Limited ………………
Applicant
Versus
Mr. Jayant Julka and others
………
Defendants
REGISTERED ADDRESS OF PARTIES
APPLICANT
Sr.No.
DESCRIPTION EXHIBITNo.
PAGENo.
1. Letter of Authorisation A-1
2. Copy of application form for loan by defendants
A-2
3. Copy of the letter Dated 30.12.2006 A-3
4. Copy of loan agreement dated 30.12.2006
A-4
5. Copy of the Allotment letter dated 08.09.2006
A-5
6. Copy of the Permission to mortgage dated 26.10.2006
A-6
7. Copy of the Flat Buyers Agreement
A-7
8. Copy of undertaking dated 30.12.2006
A-8
9. Copy of Demand Notice under section 13(2) of SARFAESI Act, 2002
A-9
10. Receipts of 13(2) Demand Notice under SARFAESI Act, 2002
A-10
11. Statement of Accounts A-11
ICICI Bank Limited, a Banking Company under the Banking Regulation Act, 1949 having its Registered Office at Land Mark, Race Course Circle, Vadodara- 390 007 and Corporate Office at ICICI Bank Towers, Bandra-Kurla Complex, Mumbai-400 051 and amongst other places in the country a Branch Office at Agra (U.P.) through its constituent Authority Mr. Saumitra Shyam, Collection Manager and his successors in office.
DEFENDANTS
1. MR. JAYANT JULKA
197, VAISHALI, PITAM PURA,
NEW DELHI- 110088
Also At:
FLAT NO. 18
GROUND FLOOR, TYPE-A
KRISHAN LOK
VRINDABAN, NH-2
MATHURA, UP.
Also At:
M/s DIMENSIONS AND TRAVELS PVT LTD
403, SETHI BHAWAN, 7 RAJENDRA PALACE
DELHI-110008
2. MRS. SANGEETA JULKA
197, VAISHALI, PITAM PURA,
NEW DELHI- 110088
Also At:
FLAT NO. 18
GROUND FLOOR, TYPE-A
KRISHAN LOK
VRINDABAN, NH-2
MATHURA, UP.
LUCKNOW, (SHYAM KUMAR RAY) DATED ADVOCATE
COUNSEL FOR APPLICANT
B-5, Shagun Palace, Sapru Marg, Lucknow.
BEFORE THE HON’BLE DEBTS RECOVERY TRIBUNALAT LUCKNOW
ORIGINAL APPLICATION NO. OF 2013.(Under Section 19 R.D.D.B. & F.Is. Act, 1993)
I.C.I.C.I. Bank Limited ……………Applicant
Versus
Mr. Jayant Julka and others
..………
Defendants
AFFIDAVIT IN SUPPORT OF ORIGINAL APPLICATION .
I, ……………….., aged about 36 years, son of
……………………….. , presently posted and working as Area Debt
Manager, ICICI Bank Limited, 4th floor J.S. Tower, Mall Road, Kanpur
the deponent, do hereby solemnly affirm and state on oath :-
1) That deponent has been authorized by the competent
authority to institute this O.A. before this Hon'ble Tribunal by
signing and verifying plaints and to swear the affidavit or
affidavits for and on behalf the Applicant Bank. Deponent is
conversant with facts deposed below.
2) That ICICI Bank Limited is a Banking Company under Section
5 ( c) of the Banking Regulation Act,1949 and has its Registered
office at ‘Landmark’, Race Course Circle, Vadodara-390 007 and
Corporate Office at ICICI Bank Towers, Bandra-Kurla Complex,
Mumbai-400 051 and amongst other places in the country a
Branch Office at Agra (U.P) at present Mr. SUNIL SAXENA Area
Debt Manager and Principal Officer of the Applicant Bank and is
fully conversant with the facts and circumstances of the case
and is able to depose to the facts of the present application. He
holds the Authority Letter of having been authorized from the
competent authority of the Applicant Bank whereby he is
authorized and empowered to sign, verify pleadings, institute
suits, applications and all legal proceedings to conduct and
prosecute the same and to do all other acts necessary in this
behalf including engagement of Counsel for the purposes of the
case. He has also been expressly authorized by letter of
authorization dated 08.11.2012 issued by Mr. Rajiv
Sabharwal, Executive Director & Mr. Shanthi
Venkatesan, Deputy General Magager, ICICI Bank Limited,
to file this Application against defendants hence this Application
has been signed and verified by the person competent to do so.
3) That the Defendants in the instant case are running an
organization with a name of M/s DIMENSIONS TOURS AND
TRAVELS PVT. LTD. The organization is recognized to one of the
Market Leaders as a full service Travel Agency that specializes
in Air Travels & Package Tours (Both Domestic & Out Bound)
and provides recreational and business travelers with
professional services & consultations.
4) He holds an Authority Letter and is authorized from the
competent authority of the Applicant Bank to sign, verify
pleadings, institute suits, applications and all legal proceedings
to conduct and prosecute the same and to do all other acts
necessary in this behalf including engagement of Counsel for
the purposes of the case. He has also been expressly authorized
by letter of authorization dated 08.11.2012 issued by Mr. Rajiv
Sabharwal, Executive Director & Mr. Shanthi
Venkatesan, Deputy General Magager, ICICI Bank Limited,
to file this Application against defendants hence this Application
has been signed and verified by the person competent to do so.
5) That defendants have availed a Home Loan Facility by
submitting the home loan application form for an amount of
Rs. 1,283,800/- for purchasing the property bearing Flat no.
A-0018 Shri Krishna lok, area admeasuring 1,495
square meters situated at NH-2 Delhi- Agra Express
Highway , Vrindaban dist. Mathura(U.P.). The said
amount was sanctioned on 30.12.2006 in the Loan Account
numbered as LBMAT00001469970.
6) That after considering into genuineness of the request and
requirement, the Regional Office of the Applicant Bank had
vide its letter dated 30.12.06 sanctioned and disbursed an
amount of Rs. 1,283,800 (Twelve Lakh Eighty Three
Thousand Eight hundred Only) clearly stating therein the
Terms and Conditions of the Home Loan Facility so granted
and specifically requiring the documents to be executed by
Defendants to secure the loan. The letter dated 30.12.2006
was duly acknowledged by the defendants thereby the terms
and conditions were accepted by them.
7) That the defendants availed home loan of Rs. 1,283,800
(Twelve Lakh Eighty Three Thousand Eight hundred
Only) for the purchase of flat/house after executing a loan
agreement (hereinafter called the facility agreement) on
30.12.2006 with the applicant Bank clearly stating the terms
and conditions of the loan facility and duly acknowledged by
the defendant. It is pertinent to mention here that the loan
was sanctioned and disbursed at the adjustable interest rate
FRR 10.75% per annum as on the date of this facility
agreement. Adjustable rate of Interest 9.5% per annum (i.e.
FRR + margin of 1.25%) term of repayment 180(EMIs)
months & monthly installments of Rs.13,406/- which is
subject to change from time to time as per the guidelines
issued by the Reserve Bank of India.
8) That to secure the loan-facilities, as sanctioned above,
granted by the Applicant Bank, the defendants stood as
borrower as well as Co-borrowerfor the above Home Loan
Facility. The defendants have mortgaged their immovable
property bearing Flat no. A-0018 Shri Krishna lok, area
admeasuring 1,495 square meters situated at NH-2
Delhi- Agra Express Highway, Vrindaban dist.
Mathura(U.P.) in favour of applicant Bank by rendering the
Flat Buyers Agreement, Allotment letter, Permission to
Mortgage. It is pertinent to mention here that the Allotment
letter dated 08.09.2006 was issued by Shri Krishnalok Builders
in favour of the Defendants in which they have specified that
the defendants have been allotted Type A Flat bearing
number 008 with a total price of Rs. 19,95,000/-. The builders
have also requested the Defendants to draw a Demand Draft
in favour of them for the worth of Rs. 2,62,000/- as earliest but
not later than 25th September, 2006.
9) That a permission to mortgage was issued by CHD
DEVELOPERS vide letter dated 26.10.2006 as per which they
have stated that being a developer they have sold Flat NO. A-
0018 in the building called ‘Shri Krishnalok’ situated at NH-2
Delhi- Agra Express Highway, Vrindaban dist. Mathura(U.P.) to
Mr. Jayant Shukla for a total consideration of Rs. 19,35,200/-
under an agreement known as FLAT BUYERS AGREEMENT.
It has been stated as per the letter that the above captioned
property is free from all kinds of encumbrances and they have
also stated that they have no objection in providing the loan
to the defendants by keeping the flat as a security. They have
also noted a lien on the above said property and will also send
the registry documents to as soon as the formalities are
vitiated.
10) That a Flat Buyers Agreement dated 26.10.2006 was entered
into between CHD Developers Limited and Mr. Jayant Jhulka
s/o Late Shri S.P. Jhulka in regards to the above mentioned
property admeasuring 1495 sq. ft. As per the agreement the
buyer has authorized the developer to raise the finance/loan
from any bank by way of mortgage/charge/ securitization or
receivables on in any other mode with a condition that the
property should be free from all encumbrances at the time of
execution of the conveyance deed. It is pertinent to mention
here that the Developer/ Financial institution/bank shall have
the first charge on the said Flat for all the dues and other
sums payable by the buyer in respect of any loan granted.
11) That defendant has signed an undertaking dated 30.12.2006,
as per which the defendants have declared that they shall
deposit the said agreement of conveyance executed in their
favour and also shall pay and discharge all dues and charges
in respect thereof. It is pertinent to mention here that the
defendants shall execute and sign all such document(s) that
may be required to be executed in form and manner as
suggested by applicant bank for creation of the necessary
security in the their favour . As per the undertaking the
Applicant bank would be at liberty to take actions which may
make them fit, if there is any kind of breach of any.
12) PARTICULARS OF PROPERTY MORTGAGED.
Description of property mortgaged:
Immoveable residential Flat/house bearing no. Flat no.
A-0018 Shri Krishna lok, area admeasuring 1,495
square meters situated at NH-2 Delhi- Agra Express
Highway , Vrindaban dist. Mathura(U.P.)Aforesaid
properties detailed above is mortgaged in favour of the
Applicant Bank for the repayment of quantified loan amount
of Rs. 1,283,800 (Twelve Lakh Eighty Three Thousand Eight
hundred Only) as on together with interest and further
amount pendentelite and future interest till date of
realization to the satisfaction of the Applicant Bank.
1. Name of Mortgagor s :
1. MR. JAYANT JULKA
197, VAISHALI, PITAM PURA,
NEW DELHI- 110088
Also At:
FLAT NO. 18
GROUND FLOOR, TYPE-A
KRISHAN LOK
VRINDABAN, NH-2
MATHURA, UP.
Also At:
M/s DIMENSIONS AND TRAVELS PVT LTD
403, SETHI BHAWAN, 7 RAJENDRA PALACE
DELHI-110008
2. MRS. SANGEETA JULKA
197, VAISHALI, PITAM PURA,
NEW DELHI- 110088
Also At:
FLAT NO. 18
GROUND FLOOR, TYPE-A
KRISHAN LOK
VRINDABAN, NH-2
MATHURA, UP.
2. Name of Mortgagee:
ICICI Bank Limited.
13) That in the above manner the outstanding amount
against the defendants comes to Rs 2,137,084.94
( Twenty One Lakhs Thirty Seven Thousand Eighty
Four & Ninety Four paisa) together with interest and
further amount pendentelite and future interest till date of
realization is overdue upon the defendants.
14) That the defendants though availed the above Home Loan
credit facilities of the Applicant Bank under their due
promise reduced to writing to repay the entire amount
availed by them alongwith interest and other expenses
incurred therein and to operate the loan accounts in a
perfectly bona fide manner, the defendant betrayed their
promise and their accounts became irregular and sticky.
The defendants had started to siphon the moneys received
by them and did not route the payments through the
aforesaid loan-accounts standing in their names in the
Applicant Bank making their financial conduct susceptible.
15) That the defendants are trying to evade the liability and
dammed to care for their contract with the Bank having
entered into. The defendants are willful defaulter and
trying to evade their liabilities by wrong assurance and
financial misconduct.
16) That the Applicant Bank required the defendants to honour
their contractual commitment and to discharge their
contractual liability of repayment of outstanding amounts
but neither the oral request nor letters of Applicant Bank
could be able to move from their dishonest intention to
withhold the public-money and to impede the velocity
thereof and thus to hamper at the functioning of the
Applicant Bank.
17) That Applicant Bank had required the defendants to ensure
that the contractual commitments are discharged in a
bonafide manner and the Applicant Bank is not put to
hardships and to constrain it to seek legal redress against
them. Applicant Bank had also advised the defendants that
they are fully liable for payment of loan outstanding dues
as it is their joint and several liability and they shall ensure
that the payment of outstanding dues of loan amounts are
liquidated promptly lest hammer of law fall on them.
18) That the defendants were not moved and had never
considered of their contractual liability and their misconduct
had led the Applicant Bank to decide to proceed for legal
redress of recovery of outstanding dues.
19) That due to the non-payment of the monthly dues, which
remained outstanding for a period of 90 days therefore the
account was classified as Non-Performing Asset(N.P.A) as
per the guidelines or directions issued by Reserve Bank of
India. As per the legal procedure a Demand Notice under
sec 13(2) dated 31.03.2011 was served through registered
post by the Applicant Bank detailing therein the amount
outstanding with a demand to discharge the loan liability
together interest due but the said notice went unheeded by
defendants. Said Notice had been duly served upon
defendants but neither the Notice was replied to by the
defendants nor was any amount paid to the Applicant Bank
in discharge of their contractual liability.
20) That the officials of the Applicant Bank approached the
defendants several times for the repayment of overdue
amount against them and make them understand that due
of nonpayment of EMI’s the loan account become a bad
debt and non potential asset required them to pay the
entire overdue amount otherwise legal action would be
taken against them at their risk and cost, but defendants
make lame excuses and trying to evade the liability.
21) That as per Statement of Account extracted from the
Account Books of Bank maintained in its ordinary course of
business and duly certified in terms of Banker's Books
evidence Act, 1891 an outstanding dues of Rs
2,137,084.94 ( Twenty One Lakhs Thirty Seven
Thousand Eighty Four & Ninety Four paisa) as on
18.09.2013 together pendentelite and future interest till
date of realization is overdue upon the defendants for which
this Hon'ble Tribunal is required to issue a Recovery
Certificate for realization from the defendants.
22) That loan facilities above mentioned had been secured
through documentation and the defendants are liable to
pay the outstanding dues jointly and severally the same
having been utilized by them. That the loan was sanctioned
and disbursed at the floating rate of interest which is
subject to change from time to time as per the guidelines
issued by Reserve Bank of India. As the outstanding dues of
debt were not discharged legal notice for payment thereof
was sent but no attention was paid by either the Borrowers/
Mortgagors.
23) That the above amount is recoverable additive with such
amount that gets generated pendentelite and future
interest in terms of the Loan Agreement is being claimed by
the Applicant Bank as balance outstanding. The
outstanding amount is recoverable from defendants jointly
and severally as their liability to repay the outstanding debt
is joint and several, co-extensive.
24) That at no point of time the defendants had ever disputed
the amount in question nor they had ever denied of their
liability of overdue amount.
25) That in view of above submissions defendants are jointly
and severally liable to pay the outstanding dues of the debt
of Applicant Bank for a sum of Rs 2,137,084.94 (two one
Lakhs thirty seven thousand eighty four and ninety
four paisa) as on 18.09.2013 together with future and
pendentelite interest on the loan outstanding alongwith the
cost of litigation with effect therefrom till date of actual
realization.
LUCKNOW,
DATED DEPONENT
VERIFICATION
I, the deponent do hereby verify that contents of paragraphs 1
to 19 above are true to my personal knowledge and belief based
on records maintained by the applicant bank in the ordinary
course of its business and legal advice. I have not suppressed or
concealed any material fact.
Signed and verified on …th day of October, 2013 at Lucknow.
for APPLICANT through
(SHYAM KUMAR RAY)ADVOCATE
COUNSEL FOR APPLICANTB-5, Shagun Palace
Sapru Marg, Lucknow.