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S.B. CIVIL WRIT PETITION NO. 1529/2009
(Kamal Nagpal and anr. Vs. Central Bank of India & ors.)
Date of Order :: 6th August 2009.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr.Sunil Joshi for the petitioners.
...
BY THE COURT:
Having heard the learned counsel for the petitioners and
having perused the material placed on record, this Court is unable to
find any reason to interfere in this matter in the extra ordinary writ
jurisdiction.
From the averments as taken in the petition and the
documents annexed thereto, it appears that the respondent-bank
sanctioned cash credit limits in favour of the respondents Nos.4 and
5 against their accounts Nos.1407 and 1406; and the petitioners
stood as guarantors for such advance and placed their immoveable
property in equitable mortgage with the bank. The loanees having
defaulted, on 14.09.2006, the respondent-bank issued notice
(Annex.3) under Section 13 (2) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (‘the Act of 2002’) to them and also forwarded the
same to the petitioners-guarantors. It appears that the loan accounts
having yet remained in arrears and nothing having been recovered
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for about two years, by the communication dated 23.10.2008
(Annex.7), the bank suggested its Recovery Office to adopt the
necessary recovery proceedings from the property placed in
equitable mortgage; and endorsed a copy thereof to the petitioners.
It is sought to be contended in this petition that the said
communication dated 23.10.2008 remains wholly illegal and invalid;
and that before issuing such communication, no notice under
Section 13 (11) of the Act of 2002 has been served on the petitioners
nor were they extended any opportunity of hearing. It is also
submitted that even if the accounts of principal borrowers i.e., the
respondents Nos. 4 and 5 have been treated as non-performing
assets, the petitioners have not been informed about the status and
position of the accounts; and that the attempt on the part of the bank
to straight away take over the immoveable property of the petitioners
remains illegal. It is further submitted that the debt is required to be
recovered from the borrower at the first and the provisions of Section
13 (11) of the Act of 2002 could be resorted to only thereafter; and
the attempt on the part of the bank in adopting the proceedings
against the petitioners without taking the recovery proceedings
against the principal borrowers remains invalid. It is also submitted
that the communication (Annex.7) remains unauthorised.
During the course of submissions, the learned counsel has
made a fervent appeal for sympathetic consideration of the matter
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and urged that the petitioners would unnecessarily be harassed in
the matter with likelihood of being deprived of their property although
they had extended such guarantee in good faith for the petitioner
No.2 being the sister of the proprietor of the respondent No.5 and
hence, notices may be issued in this matter where, for the fault of the
brother, his sister is in trouble.
Having regard to the overall circumstances of the case where
the petitioners are found to have voluntarily stood as guarantors, the
submissions invoking sympathies hardly make out a case for
interference; nor there appears any reason to entertain this petition.
The petitioners admittedly stood as guarantors and placed
their property in equitable mortgage with the respondent-bank as a
security for the loan advanced. In this position, the bank cannot be
faulted if exercising its legal rights in relation to such security.
The submissions as sought to be made in this writ petition
against the communication dated 23.10.2008 are rather misplaced.
The said one had only been an inter-departmental communication
whereby the Recovery Office was requested to take appropriate
proceedings while endorsing a copy to the petitioners with a request
to get the account settled by the borrowers. Merely for such a
communication, it cannot be assumed that the respondent-bank
would not be proceeding in accordance with law or would be taking
any proceedings contrary to law.
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The previous notices having been served by the bank remains
a fact indisputable with the copies of such notices having been
placed on record by the petitioners themselves. There is nothing on
record to find that the respondent-bank has attempted to take any
proceedings in violation of, or contrary to, the requirements of law.
In view of the provisions of sub-section (11) of Section 13, it is
not correct to suggest that the bank is obliged to adopt the
proceedings at the first against the principal borrowers before
proceeding against the petitioners.
No case is made out for interference in the extra ordinary writ
jurisdiction.
The writ petition fails and is, therefore, rejected.
(DINESH MAHESHWARI), J.
MK