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SCA/12292/2009 8/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12292 of 2009
=========================================================
SHIVALIK
BUILDWELL LIMITED & 1 - Petitioner(s)
Versus
CHAROTAR
NAGRIK SAHKARI BANK LIMITED & 2 - Respondent(s)
=========================================================
Appearance :
NANAVATI
ASSOCIATES for
Petitioner(s) : 1 - 2.
MR DIPEN A DESAI for Respondent(s) :
1,
None for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 10/02/2010
ORAL
ORDER
The
petitioner by this petition has prayed for the appropriate writ to
direct the respondents to consider the One Time Settlement
proposal forwarded by the petitioner at Annexure-E and it is also
prayed to direct the respondents to extend the benefit of the One
Time Settlement Scheme framed by the appropriate authority for the
respondent Bank.
Heard
Mr. K.S.Nanavati with Mr. Chudgar for the petitioners, Mr. Sunit
Shah with Mr.Dipan Desai for the respondent No.1 and Mr. Jani,
learned Govt. Pleader with Mr.H.H. Parikh, learned AGP for the
State authorities.
It
appears that the proceedings which were initiated before the State
Government against the recovery have been withdrawn by the
petitioner. The aspects which may be required to be considered in
the present petition would be pertaining to the action taken by
the Bank under the Securitization Act and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002
pending the proposal of OTS submitted by the petitioner. It is
undisputed position that so far as the respondent Bank is
concerned, the OTS was in force at the relevant point of time and
the petitioner has applied for such OTS. However, such OTS is to be
approved by the committee constituted for such purpose. There are
two committees; one is for considering the proposal involving the
amount of Rs.25,000/- to Rs. 1 Crore and the another is the High
Level Committee which is to consider the proposal where the
recovery involved is of above Rs. 1 Crore.
So
far as the petitioner is concerned, when the matter came up for
consideration, the petitioner had shown willingness to deposit the
amount as per the undertaking which is restricted to the amount of
One Time Settlement, but with the lesser rate of interest. In order
to see that whatever the amount is stated by the petitioner comes
to the corpus of the Bank, subject to the finalisation of the
matter by the concerned committee, the petitioner was called upon
to tender the payment and accordingly, as per the schedule given
by the petitioner, the amount of Rs.1 Crore is deposited and the
remaining amount by four cheques of Rs.55 Lakhs and one cheque of
Rs.53,77,616/- are already handed over by the learned counsel for
the petitioner to the learned counsel for the respondent Bank. It
may also be recorded that this Court on 14.12.2009 had passed the
following order –
The
petitioner at para-6 of the additional affidavit dated 7/12/2009
filed in this petition has stated as under:
6. The
petitioner therefore submits that out of the aforesaid amount of
Rs.3,73,77,616/-, the petitioner proposes to pay an amount of Rs.1
crore as upfront payment on or before 22.1.2010, which would be 27%
of the total amount instead of 15%, as was envisaged in the scheme.
It is further states that the remaining amount of Rs.2,73,77,618/-
carrying interest at the rate of 8% till full payment (8% interest as
payment is to be made in less then 12 months), will be repaid by the
petitioner in five equal monthly installments as follows:
Date
Amount
payable (Rs.)
On
or before 22.2.2010
55,00,000
On
or before 22.3.2010
55,00,000
On
or before 22.4.2010
55,00,000
On
or before 22.5.2010
55,00,000
On
or before 22.6.2010
53,77,616
Total:
2,73,77,616
(interest
on the amount so paid will be paid as per the calculation and
instruction of the Bank along with the last installment)
It may
kindly be appreciated that even if at the relevant time i.e.
30.6.2008 the OTS proposal of the petitioners had been granted by the
respondents, the 24 installments would get over on 30.6.2010, while
the petitioners in the instant case, as per the above offer is
proposing to complete, the repayment on 22.6.2010. Therefore, no
prejudice is likely to occasion to the respondents, in the offer
proposed by the petitioners.
Therefore
the aforesaid appears to be the liability admitted by the petitioner
as per OTS on the basis of interest at the rate of 8% per annum,
whereas the bank contends the charging of 10% interest which would
be Rs.4,14,42,019/-. The finalisation of OTS whether to grant it or
not is at large pending but the liability as per OTS is undisputed,
save and except the chargeability of the interest as contended by the
petitioner.
Therefore
it appears to the court that even if this Court is to exercise the
power for directing the high level committee of the Government to
consider the OTS proposal and to take appropriate decision, the
petitioner should deposit the amount with the bank as per the OTS.
At this stage learned counsel Mr. Nanavati states that the amount of
Rs.1,00,00,000/- (rupees one crore) shall be deposited on or before
28/12/2009. Hence, S. O. to 29/12/2009.
Thereafter,
on 29.12.2009, following order was passed –
Mr.
Nanavati, learned counsel for the petitioners states that as
recorded earlier, the amount of Rs.1 Crore is already deposited with
the Bank and further amount also shall be deposited as per the
declaration made and recorded.
Whereas
Mr. Desai, learned counsel for the respondent
Bank states that the petitioners are transferring the property
which are mortgaged with the respondent Bank.
As
such, when the property is mortgaged, any transfer or alienation by
frustrating the rights of the Bank is not permissible and no third
party right can be created by the petitioners. Hence, it is directed
that till next date, the petitioners shall not transfer or alienate
the property which are mortgaged with the respondent Bank in any
manner whatsoever by creation of any interest of any third party. S.
O. to 22.01.2010.
Once
again, the matter came to be considered on 01.02.2010 and the
following order was passed –
Leave
to substitute the annexures to the
additional affidavit.
The
petitioner has filed the additional affidavit today and the
remaining 5 cheques as per the schedule given on page 152 total
amounting to Rs.2,73,77,616/- has been handed over to the
learned counsel appearing for the respondent Bank by the learned
counsel appearing for the petitioner. It has been further stated
that the calculation of the interest at the rate of 8% from
the date on which the proposal of OTS is to be submitted and
considered as per the scheme of OTS will be calculated and the
same shall be supplied by the respondent Bank to the petitioner
to which the petitioner shall make the payment one month
thereafter.
Mr.Jani,
learned Government Pleader seeks time to place on record the
response of the Government. S.O. to 05.02.2010. IR shall
continue until further orders.
Pursuant
to the order dated 01.02.2010, the affidavit was filed by Shri J.
A. Thakkar, Deputy Secretary (Credit) and the Principal Secretary
of the High Level Committee and after considering the contents of
the affidavit, this Court on 05.02.2010, had passed the following
order –
1.The
affidavit filed by the Deputy Secretary (Credit), who is also Member
Secretary of High Level Committee shows that there are 160
applications pending before the High Level Committee comprising of
the amount involved of Rs.39409 lacs, out of which, 157 applications
are pending. So far as the other applications are concerned, up to
the amount of Rs.25,000/- to Rs.1 crore, 161 and 710 applications
are shown as pending and huge amount running into crores of rupees
are are involved. Therefore, it would be required for the State
Government to pragmatically consider the issue of; (i) collection of
the amount as offer as per the OTS Scheme pending the finalization
of the applications; and (ii) consideration and disposal of the
application of OTS within reasonable time by holding the meeting of
the respective committees regularly at the interval of fortnight or
otherwise.
2. The
aforesaid prima facie appears to be in the larger interest of the
banks, whose huge monies are held up for recovery, at the same time,
also appears to be in the interest of the persons, who have applied
for OTS. If the monies are recovered even as per the OTS, it would
enable the bank to have the fund, which consequently may enable the
bank to distribute amongst the deposit holders or otherwise. So far
as the persons, who have applied for OTS are concerned, in any case,
such amount is payable even if the applications are accepted,
therefore, there should not have any objection for offering the
amount, but the only condition could be that if the application is
not accepted, they may be entitled to get back the amount, subject
to the right of the bank to recover the amount in accordance with
law. In any case, the pendency of the applications for OTS for a
long time involving amounts of crores of rupees is not likely to be
in the interest of anybody.
3. Therefore,
before this Court considers the matter for issuing directions in
this regard, the Principal Secretary, Cooperation Department of the
State Government is directed to file appropriate response and also
the difficulties, if any, to the State Government.
4. At
this stage, Mr.Jani, learned GP seeks time.
5. S.O.
to 10.2.2010.
The
matter would have been considered further, but, the learned
Government Pleader has placed on record the written instructions
communicated to him by the Principal Secretary, Agricultural and
Cooperative Department of the State Government, on the basis of
which the learned Government Pleader stated that the following
decision has been taken –
The
High Level Committee will consider and finalize all application
received for one time settlement between 18.05.2007 to 17.11.2007 on
or before 15th April, 2010. No application shall be kept
pending beyond 15th April, 2010 if the application
satisfies the requirement of being considered under one time
settlement scheme.
That
High Level Committee will meet on regular interval of 15 days.
So
far as the applications for one time settlement where the amount
is less than Rs.1 crore, the State Government through its officer,
i.e., Registrar Cooperative Societies, Gujarat State, Gandhinagar,
will monitor and supervise all application of 65 co-operative banks
which are under liquidation, received from 18.05.2007 to 17.11.2007
the Registrar of Cooperative Societies, Gujarat State, Gandhinagar
will ensure that applications pending before settlement advisory
committee are decided on or before 30.6.2010.
That
the Registrar of Cooperative Societies, Gujarat State, Gandhinagar
will call for regular updated progress report about recovery being
affected regarding the amount, which is less than one crore.
That
the Registrar of Cooperative Societies, Gujarat State, Gandhinagar
and his subordinate officer will continuously monitor the progress
of recovery of outstanding dues of cooperative banks which are under
liquidation.
The
aforesaid declaration made on behalf of the State Government appears
to be proper and can be accepted in order to ensure that the
applications for one time settlement do not remain pending for
indefinite period. However, it would be required for the concerned
Bank or the authority, as the case may be, to examine the aspects
of acceptance of the amount of One Time Settlement, subject to the
finalisation of the application for One Time Settlement by the
respective committee. Since majority of the aspects of
consideration of the application of OTS is taken care in view of
the aforesaid declaration, except observations made hereinabove, no
further observation deserves to be issued.
Hence,
the following order –
The
petitioner shall abide by the undertaking and the declaration made
before this Court and also referred in the interim order passed in
the present proceedings. However, all such payment shall be subject
to the final decision which may be taken by the concerned committee
upon the application of the petitioner for OTS.
The
application of the petitioner for OTS shall be considered and
decided by the concerned committee, in any case, before 15.04.2010
and the decision shall be communicated to the petitioner.
The
respondent Bank shall supply the details, if not supplied, to the
concerned committee for consideration of the application of the
petitioner. Until the applications are finally decided, the
interim relief which has been granted on 29.12.2009 and continued
thereafter shall continue to remain in operation.
The
State Government shall abide by the declaration made before this
Court and recorded hereinabove, for disposal of the other
applications which are pending and also for monitoring of the same
in the larger interest of all the Cooperative Banks which have
been ordered to be liquidated as well as the depositors whose
monies are involved in such Banks.
The
petition is disposed of in terms of the aforesaid direction. No
order as to costs.
(JAYANT PATEL, J.)
*bjoy
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