jayant julka.doc

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


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


NEW DELHI- 110088

Also At:

FLAT NO. 18


KRISHAN LOK

VRINDABAN, NH-2

MATHURA, UP.

Also At:



DELHI-110008

2. Mrs. Sangeeta Julka

197, Vaishali, Pitam Pura,

New Delhi- 110088

Also At:

FLAT NO. 18


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.



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


NEW DELHI- 110088

Also At:

FLAT NO. 18


KRISHAN LOK

VRINDABAN, NH-2

MATHURA, UP.

Also At:



DELHI-110008

2. MRS. SANGEETA JULKA


NEW DELHI- 110088

Also At:

FLAT NO. 18


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.


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


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


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


………

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


NEW DELHI- 110088

Also At:

FLAT NO. 18


KRISHAN LOK

VRINDABAN, NH-2

MATHURA, UP.

Also At:



DELHI-110008



NEW DELHI- 110088

Also At:

FLAT NO. 18


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


..………

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.



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.



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


NEW DELHI- 110088

Also At:

FLAT NO. 18


KRISHAN LOK

VRINDABAN, NH-2

MATHURA, UP.

Also At:



DELHI-110008



NEW DELHI- 110088

Also At:

FLAT NO. 18


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.

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