ORIGINAL APPLICATION UNDER SECTION 19 OF RECOVERY OF DEBT AND BANKRUPTCY ACT, 1993 FORMAT

(ORIGINAL APPLICATION UNDER SECTION 19 OF RECOVERY OF DEBT AND BANKRUPTCY ACT, 1993 FORMAT)

IN THE DEBT RECOVERY TRIBUNAL, NEW DELHI

ORIGINAL APPLICATION  NO  XX  OF  XXXX

IN THE MATTER OF:

A  [BANK]                                                                      …..APPLICANT

VERSUS

X    & ORS                                                                  …..RESPONDENTS

APPLICATION UNDER SECTION 19 OF THE RECOVERY OF DEBTS AND BANKRUPTCY ACT, 1993 FOR RECOVERY OF A SUM OF RS. XXXX ALONGWITH PENDENTE LITE AND FUTURE INTEREST  @XX% PER ANNUM WITH MONTHLY RESTS ALONGWITH ALL OTHER CHARGES, COSTS AND EXPENSES ETC.

MOST RESPECTFULLY SHOWETH:

DETAILS OF THE APPLICATION:

I. PARTICULARS OF THE APPLICANT

(i) Name of the Applicant                            :  A [Bank]

(ii) Address of the Applicant :

(iii) Address of the Applicant for service :

II. PARTICULARS OF THE RESPONDENTS

(i) Name and Address of the Respondent No. 1  [Borrower]

(ii) Name and address of the Respondent No. 2   [Developer]

(iii) Address for service of all notices:

III. JURISDICTION OF THE TRIBUNAL

The  claim in respect of amount due from the respondents exceeds Rs. 20.00 Lacs. The loaning and security documents were executed at the applicant’s bank branch within the jurisdiction of this Tribunal.  Further, the Respondent No. 1 work for gain and are ordinary resident of Delhi/New Delhi, the entire cause of action has arisen in favour of the applicant bank and against the Respondents within territorial jurisdiction of this Hon’ble Tribunal.

IV. LIMITATION

The Applicant Bank declares that the Original Application is being filed within the period of Limitation as prescribed under the Limitation Act read with Section 24 of the Recovery of Debt due to Banks and Financial Institutions Act, 1993.

V. FACTS OF THE CASE

1.That Applicant Bank  is a corporate body  constituted under Companies Act, 1956  having its registered office at xxxx. It is engaged in the business of Banking and has several branch offices including office at   xxxx.

2. That this Application is filed by Applicant Bank through Mr. Y  who  is presently posted as Chief Manager. Mr. Y  is fully conversant with the facts of the present case on the basis of the records maintained by the Applicant Bank in the ordinary course of its business and is thus in a position to depose about the correctness thereof. Even otherwise, he is competent and authorized to sign and verify the pleadings , Vakalatnamas, Affidavits, Applications and Executions  and to do all such acts as are necessary for the proper conduct of the present original application. Power of attorney in favour of Mr. Y  is attached herewith and marked as Annexure 1.

3.That the Respondent No. 1 approached to the Applicant Bank branch at xxxx for financial assistance of Rs. xx,xx,xxxx/-.  The proposal of the respondents were scrutinized by the Applicant Bank and after due and usual verification of the financial requirement of the respondent for a loan of  Rs. xx,xx,xxxx  was sanctioned. The original loan application along with supporting documents is annexed herewith for kind perusal of this Hon’ble Tribunal as Annexure 2 (Colly).

4.That in consideration of availing the aforesaid loan of Rs. xx,xx,xxxx/-   the respondents executed and delivered the following documents in favour of the applicant bank:

• Arrangement Letter executed by the respondent dated xx/xx/xxxx

• Memorandum of Loan Agreement for Home Loan dated xx/xx/xxxx

• Agreement to mortgage dated xx/xx/xxxx

• Date of undertaking dated xx/xx/xxxx

• Operations Letter dated xx/xx/xxxx

• Tripartite Agreement dated xx/xx/xxxx

• Letter for transfer of loan amount to the developer

5. That all the above documents were duly filed in, read over and explained to the respondents who had signed the same voluntarily and consciously after understanding the implication and delivered the same to the Applicant Bank. Aforesaid documents are attached as Annexure 3 to 10.

6.The loan amounting to Rs. xxxx  was disbursed to the Respondent No. 2  as per Tripartite Agreement to the Respondent No. 1 by the Applicant Bank and the respondents duly availed the same. It was further agreed between the parties that as per tripartite agreement in the event of default in repayment of loan and or borrower/respondent no. 1  committing any default which makes the borrower/respondent no. 1 liable for repayment of the entire amount outstanding in the said loan as per the terms of the loan agreement.  It was further agreed between the parties that as per tripartite agreement, that at the call of the Applicant Bank, builder will be under obligation to cancel the booking and pay all the amount received by the builder/respondent no. 2 on account of the borrower/respondent no. 1 to the Applicant. It was further agreed that as per tripartite agreement that in the event of failure of the builder to complete the project , the builder/respondent No. 2 shall pay the entire amount which was received on the account of the Brrower/Respondent no. 1 to the Applicant. It was further agreed and made clear that as per tripartite agreement  that the non-completion of the project will not affect the obligation of the borrower/respondent no.  1 to repay the loan availed from the Applicant. It was further agreed by the respondents that the entire amount outstanding shall become payable at once upon default in payment of any installment and/or interest falling due in the loan account of Respondent No.1. However on the account  changes made by the Applicant bank in State Bank Advance Rate, the Applicant Bank is presently charging interest @ xx % per annum with monthly rests in the said loan account.

7.The rates at which the interest have been charged by the Applicant Bank from time to time i.e. from the date of availment  of the loan by the respondents to the date of filing of this original application.

8.That in order to secure the above said Home Loan Facility, the Respondent No. 1 mortgaged the flat as primary security and also as per tripartite agreement it was agreed by the Respondent No.2 that charge in favour of Applicant Bank shall be first and paramount over the charge which the builder may have over the said flat.

9. That the Applicant Bank further submits that the respondents have executed the abovesaid documents and created securities as mentioned above after the said documents were duly filled, completed read over and explained to the respondents and after understanding the same voluntarily and consciously.

10.That after availing the loan, the Respondents failed to maintain financial discipline, as the respondents failed to pay the loan amount as well as handover the title deed/conveyance  deed as per the terms and conditions of the loan agreement, whereby the account of the Respondent No. 1 with the Applicant Bank became irregular even after serving the letter/notice , hence the loan account of the Respondent No. 1 was classified as Non Performing Assets (NPA) on xx/xx/xxxx. The officers of the Applicant Bank had been regularly contacting by issuing the letters as well as personally to the respondents time and again to impress upon them to make the payments  and adhere to the terms and conditions as per agreement and regularize the account, but to no effect.

11.That on regular and persistent defaults committed by the Respondents No. 1, the Applicant bank recalled the above said loan by serving the respondents with legal notice on xx/xx/xxxx but the respondents failed and neglected to pay the amount on demand. The office copy of the legal notice dated xx/xx/xxxx and postal receipts dated xx/xx/xxxx are annexed herewith for kind perusal of this Hon’ble Tribunal as Annexure A 11 & 12.

12.That consequent to the sanction of the aforesaid Home Loan amounting to Rs. xx/xx/xxxx  an account was opened in the name of the Respondent No. 1 in the books of accounts of the applicant bank, which is regularly kept and maintained and all entries of debit  and credits were correctly made  therein by the Applicant bank  in regular, ordinary and usual course of its banking business, in as much as all the payments by way of advances allowed to the respondents and interest accruing therein at contractual rates and rests as also all agreed  incidental costs, charges and expenses  etc were duly debited and the payments made by the respondents towards the part liquidation of their liabilities were correctly credited to the aforesaid account on respective dates.

13.After taking into consideration all the debits and credits adjustments of the part payments made by the Respondent No. 1  presently, a sum of Rs. xx/xx/xxxx is due and outstanding against the respondents with interest calculated up to xx/xx/xxxx.

14.That as per the prudential accounting norms and practices followed by the applicant bank in accordance with the guidelines of RBI, the accrued interest after the date of NPA of the Account in the loan account is not being applied/debited in the account of Respondent No. 1 as the same was classified as NPA . The Applicant Bank has been recording the interest so accrued in the Memorandum of Interest and is entitled to recover the same  which aggregates to a sum of Rs. x/xx/xxxx towards the accrued interest but not applied interest at the contractual rates and rests in the loan account from  xx/xx/xxxx to xx/xx/xxxx @ xx% the date of filing of the present Orginal Application.

15. That the respondent is liable to pay the amount, aggregating to the sum of Rs. xx/xx/xxxx. including interest calculated uptodate of filing of this original application  to the applicant bank, alongwith all costs, charges and expenses etc of this application , alongwith pendente lite and future interest at the contractual rates and rests from the date of filing of this application till the actual and final realization  as the liability of the respondents  has arisen in commercial transactions with the Applicant Bank.

16. The statement of the Loan Account of the Respondent No. 1 maintained by the Applicant Bank in the ordinary and usual course of business in its books of the accounts duly certified under the Bankers’ Books of Evidence Act, together not applied  at the contractual rates and rests are being filed herewith. The true copy of statement of account, certificate of accrued interest CBS/Section 65B of Indian Evidence Act  certificate and certificate under section 2A of banker book evidence act are annexed for kind perusal of this Hon’ble Tribunal as Annexure 13 to 16.

15. That the cause of action occurred in favour of the Applicant bank and against the Respondent when on xx/xx/xxxx the Respondent No. 1 applied of Rs. xx/xx/xxxx for loan at applicant bank and after receiving the said loan application  the applicant bank sanctioned an amount of Rs. xx/xx/xxxx/-. The cause of action further arose when on xx/xx/xxxx when the Respondent No. 1  executed the loaning and security documents and when on xx/xx/xxxx the respondent no. 1 & 2 executed a tripartite agreement with the applicant bank in consideration of availing the  said Loan Scheme Facility, and when out of sanctioned amount the plaintiff bank disbursed the amount  the amount of Rs. xxxx as per request of the defendant again, and on various dates when transactions  took place in the loan account of the respondents and further on various dates  when the respondents committed defaults. The cause of action further arose when the applicant bank requested to the respondent  to make payment by issuing the legal notices dated xx/xx/xxx but respondents failed to comply the same. The cause of action still subsists and continues as the respondents failed to pay his dues to the applicant banks till date.

16. That for the loan granted and released by the Applicant Bank  and availed by the respondents, the documents were executed by the respondents and delivered to the Applicant Bank till date.

17. That for the loan granted and released by the Applicant Bank and availed by the Respondents, the documents were executed by the Respondents and delivered to the Applicant Bank at RACPC, New Delhi. The respondents work for gain and are ordinary resident of Delhi/New Delhi , therefore this Hon’ble Tribunal has the territorial jurisdiction to try and decide the present Application.

18. That the Applicant Bank has paid the necessary Court Fee as Rule 7 of the Debts Recovery Tribunal Rules, 1993.

VI. RELIEFS SOUGHT

In view of the facts narrated in para No. IV and its sub paras the Applicant Bank most respectfully prays for the following reliefs:

1. This Hon’ble Tribunal may be pleased to pass an order for recovery against the respondents , and in favour of the Applicant Bank for Rs, xx/xx/xxxx   being the sum aggregate of the amounts outstanding and due in loan account of the respondents, together with pendente lite and future interest @xx% per annum with monthly rest till realization in full from the date of filing this application till realization in full.
2. This Hon’ble Tribunal may be pleased to award the cost of the instant proceedings in favour of the Applicant bank and against the respondents.
3. Pass an order for sale of the mortgaged property  no. xxxx and allow the applicant bank to appropriate the sale proceeds thereof to adjust the liability of the respondents.
4. Allow the costs of this application to the applicant bank.
5. The Hon’ble Tribunal may be pleased to issue a certificate of recovery in terms of reliefs sought hereinafter.
6. This Hon’ble Tribunal may be also pleased to pass/grant such other or further order(s) in favour  of the applicant bank and against the respondents  as this Hon’ble deems just and proper in the facts and circumstances of the case as also warranted in the interest of justice.

VII. INTERIM ORDERS, IF PRAYED FOR

That as stated in paras hereinabove, despite repeated requests and reminders, the respondent had willfully failed and neglected to pay/clear his incontestable liabilities towards the Applicant Bank.

In view of the conduct of the respondent in evading his contractual obligations, the Applicant bank reasonably apprehends that the respondent may attempt to jeopardize and depose off his property.

That a prima facie case exists in favour of the applicant bank and against the respondents in view of the facts pleaded in paras hereinabove. It is also clear that the balance of convenience, justice and equity tilts entirely in favour of the applicant bank and against  the respondent. In the events  that the respondent may attempt to dispose off  his mortgage flat then the execution of the Recovery Certificate that is likely to be issued against the said respondent would be frustrated.

Therefore, it would be in the interest of justice , necessary and expedient that the pending final disposal of the present application, the applicant bank prays for granting the following interim orders/relief(s):

1. That the respondent no. 1 and their agents, employees, attorneys, representatives, successors, assignees etc. may be restrained from selling, disposing off, creating any third party interest in any manner over the mortgaged flat by the respondents.
2. That the respondent no. 2 and their agents, employees, attoneys, representatives, successors, assignees etc may be restrained form transferring the property/property in the name of any third party
3. That the respondent no. 2 and their agents, employees, attorneys, representatives, successors, assignees etc may be restrained to handover the sale deed. Conveyance deed to the Respondent No. 1 if the same is executed in favour of the respondent No. 1.
4. That the Respodent No. 2 and their agents, employees, attorneys, representatives, successors, assignees, etc may be restrain to return the total deposited amount by the respondent no. 1 or on their behalf deposited by the applicant bank to the respondent no. 1.
5. That the respondent no. 2 and their agents , employees, attorneys, representatives, successors, assignees, etc may be restrained from cancellation of the property/flat no xxxx.
6. That the applicant has got a good prima facie case and is likely to succeed in the matter. The balance of convenience lies in favour of the aapplicant and against the respondents and the applicant shall suffer irreparable loss and injury in case the rspondents succeed in selling or disposing, transferring, alienating  or otherwise parting with the possession of the mortgage, pledged, and mortgaged flat.
7. Any other interim order/s as this Hon’ble Tribunal may deem fit and proper, in the facts and circumstances of the case may also be granted in favour of the applicant bank and against the respondents.

VIII. MATTER NOT PENING WITH ANY OTHER COURT ETC

The Applicant Bank further declares that no other application /case has been filed/pending/made before any Court of Law or any other authority or any other Bench of the Tribunal.

IX. PARTICULARS OF THE BANK DRAFT/POSTAL ORDER IN RESPECT OF THE APPLICATION FEE

Name of the Bank

Branch Name

Banker Cheque No.

Date of Issue of Cheque

Amount of Banker Cheque

X. DETAILS OF INDEX

XI. LIST OF ENCLOSURES

APPLICANT

TRROUGH

VERIFICATION:

I ———–, Chief Manager, xxxxx do hereby verify that the contents of Para No. 1 to VII are true and correct to the best of my knowledge, derived from the records of the bank maintained in the ordinary Course of business of the bank and on the basis of the information received and believed to be correct and that nothing material has been suppressed or concealed therefrom.

Verified at delhi on this  xx day of may xxxx.

Applicant