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SCA/2861/2009 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2861 of 2009
=========================================================
BRIJLAL
SHATRAMDAS NIHLANI & 1 - Petitioner(s)
Versus
CENTRAL
BANK OF INDIA & 1 - Respondent(s)
=========================================================
Appearance :
MR
PREMAL S RACHH for
Petitioner(s) : 1 - 2.
NOTICE SERVED BY DS for Respondent(s) : 1 -
2.
MRS NISHA M PARIKH for Respondent(s) : 1 - 2.
MRSIDDHARTHASAMAL
for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 21/01/2010
ORAL
ORDER
The
petitioners by this petition have challenged the action on the
part of the respondent Bank seeking to take physical possession of
the residential premises under the Securitisation &
Reconstruction of Financial Assets & Enforcement of Security
Interest Act (hereinafter referred to as Securitisation Act ),
despite the petitioners are ready and willing to pay the
outstanding dues of Rs.5.51 Lakhs as mentioned in the notice.
Heard
Mr. Rachh for the petitioners and Mr.Samal for the respondent
Bank.
It
appears that the principal grievance on the part of the
petitioners is that the petitioners were ready and willing to pay
all the outstanding dues of the Bank as per the notice under the
Securitisation Act. In spite of the same, the Bank contemplated to
exercise the power for taking possession and therefore, the
present petition.
This
Court when considered the matter at the initial stage on
27.03.2009, following order was passed –
Heard
learned advocate Mr.Rachh for the petitioners. The learned advocate
invited attention of the Court to Annexure ‘E’, Page 53,
communication dated 23.03.2009 addressed by the petitioners to the
Manager, Central Bank of India, Main Branch, Jamnagar. The learned
advocate submitted that the petitioners are ready to deposit a sum of
Rs.3,00,000/- by Demand Draft either with the Bank or before this
Court by 30th
March 2009. The petitioners shall deposit a sum of Rs.3,00,000/-
(Rupees three lacs only) on or before 30th
March 2009.
2. Notice
returnable on 31st
March 2009. In the meantime, the respondents are directed to maintain
status quo as on today qua possession of the property in question.
Direct service is permitted today
Thereafter,
the amount of Rs.3 Lakhs has been deposited. Further, when the
Court considered the matter on 30.06.2009, following order was
passed.
1 Heard
learned counsels for the parties.
2 Learned
counsel for the petitioners submits that, apart from deposit of Rs.3
lakhs with the Registry of this Court on 31.3.2009, further amount of
Rs.1,75,000/- to be deposited by the petitioners with the Registry
of this Court.
3 Learned
counsel for the respondent- Central Bank of India submits that, even
after depositing the above-mentioned amount, there still remains
outstanding amount to be paid.
4 Considering
the peculiar facts and circumstances of the case, the following
directions are issued:
[a] The
petitioner shall deposit Rs.1,75,000/- with the Registry of this
Court;
[b] The
Authorized Officer of the respondent- Central Bank of India shall
submit an application with endorsement of the learned counsel for the
petitioners for withdrawal of the entire amount deposited with the
Registry of this Court by the petitioners.
[c] On
receipt of such application, the Registry of this Court is directed
to release the entire amount deposited by the petitioners in favour
of the respondent- Central Bank of India by way of account payee
cheque;
[d] In
the meanwhile, the petitioners shall make all endeavours to dispose
of the hypothecated goods for which the respondent-Bank shall not
raise any objection.
Accordingly,
the further amount of Rs.1.75 Lakhs is also deposited by the
petitioners. It appears that thereafter, the vide order dated
14.09.2009, the petitioners had to deposit the proceeds of the
goods which were hypothecated with the Bank and as stated by the
learned counsel for the petitioners, the said amount of
Rs.22,000/- has been deposited, for which, Mr. Samal states that the
said aspect is yet to be verified by him.
In
view of the aforesaid, so far as the value of the goods
hypothecated is concerned, in any case, the petitioners would be
required to deposit the said amount and the Bank will be entitled
to appropriate the same.
As
regards the other outstanding amount and the house property which
is mortgaged with the Bank, it was submitted by the learned
counsel for the petitioners that the petitioners have deposited
Rs.4.75 Lakhs and further, if some reasonable time of three months
is granted, the petitioners are also ready to deposit
Rs.6,58,057/-, as per the valuation made by the valuer of the
Bank and it was submitted that the Bank would get the full value
of the house. Thereafter, the said property may be released from
the charge of the Bank and the loan account may be settled by the
Bank.
Whereas,
on behalf of the respondent Bank, it was submitted by Mr.Samal that
as per his instruction, the Bank may consider the proposal if the
petitioners are desirous to pay Rs. 7.5 Lakhs including the amount
already deposited pending the petition minus the value of the
goods hypothecated and he also submitted that if the said amount in
any case is Rs.7 Lakhs, then he would request his client to consider
the proposal.
In
view of the aforesaid, it appears that the Bank is having the
security interest over the house for which, as per the petitioners,
the value is 4.75 Lakhs. Whereas, as per the Bank, the value
assessed is of Rs.6.58 Lakhs. The petitioners have shown desire to
pay the full price, whereas the insistence on the part of he
Bank is that it should be minimum Rs.7.5 Lakhs.
Under
these circumstances, if the petitioners are desirous to submit the
proposal for such purpose, the petitioners may do so within a
period of 15 days from today and the Bank may in its banking wisdom
consider the proposal for settling the account of the petitioners
and release of the property as may be permissible in law as per the
prevailing policy of the Bank. However, in the event the Bank is
not desirous to accept the proposal and is desirous to proceed for
sale of the property, then in that case the amount already
deposited by the Bank pending the petition would be required to be
refunded by the Bank except the amount of the sale proceeds of the
hypothecated goods which is of Rs.22,000/-. It is only thereafter,
the Bank will be at the liberty to realise the amount of the
outstanding loan amount in accordance with law and may be under the
Securitisation Act, if permissible in law.
In
view of the aforesaid, the following directions are issued –
The
petitioners if desirous, may submit the proposal within 15 days from
today to the Bank.
The
Bank shall consider the same in its banking wisdom in light of the
observations made in the present order and shall take appropriate
decision within a period of one month from the receipt of such
representation and the decision shall be communicated to the
petitioners.
In
the event the Bank is not desirous to accept the proposal, the
Bank will have to abide by the observations made in the present
order for refund of the amount and thereafter only the Bank will
be at the liberty to take action against the property in question
in accordance with law under the Securitisation Act and at that
stage, the rights and contentions of both the sides shall remain
open.
Until
the aforesaid, no further coercive steps shall be taken by the
Bank.
It
is also observed that if the petitioners fail to make any
representation to the Bank, they would not be entitled for
protection of the present order.
Petition
is disposed of in terms of the aforesaid directions. No order as to
costs.
(JAYANT PATEL, J.)
*bjoy
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