In this post we will discuss about a petition that was filed by the Allahabad Bank by way of seeking a Writ of Mandamus, guiding loan defaulters to implement the order passed by the District Magistrate of Kurukshetra demanding repayment of loan by taking over the possession of the properties mortgaged physically.
Allahabad Bank v. State of Haryana and Ors.
Writ of Mandamus filed by the Petitioner – Bank:
The following petition was filed by the Allahabad Bank by way of seeking a Writ of Mandamus, guiding Respondents no. 2 to 4 to implement the order passed by the District Magistrate of Kurukshetra demanding repayment of loan by taking over the possession of the properties mortgaged physically.
NAME OF THE COURT- High Court of Punjab and Haryana.
DATE OF DECISION- 3September 2019
NAME OF THE PARTIES-
- Petitioners-
Allahabad Bank.
- Respondents-
State of Haryana and Others.
TIMELINE –
- 4 October 2013: Respondent no. 5 was sanctioned a term loan of Rs.500 lakhs by the Petitioner.
- 15 July 2014:Respondent no. 5 is a part of a frivolous litigation initiated by Respondent no. 9 for permanent injunction alleging to be a tenant of the mortgaged property.
- 27 November 2014:Another Loan of Rs.150 lakhs was sanctioned to Respondent no.5 by the Petitioner.
- 21 May 2015: An additional loan of Rs.150 lakhs was sanctioned again to Respondent no.5 by the Petitioner.
- 30 June 2017: Respondent no. 5 defaulted in the payment of the interest amount, therefore the mortgaged property on account of the loan was declared as a Non-performing Asset.
- 4 July 2017- A notice was issued which led to the loan amount in being recalled and initiation of proceedings through the District Magistrate.
- 15 March 2018: Respondent no. 6 filed a suit for the regularization of the loan amount but this suit was disposed of because none of the Respondents came forward within the time stipulated to deposit a default amount of Rs.2 crores.
- 9 April 2018- An ad interim injunction was granted to Respondent no. 9. The Petitioners also filed for its impleadment in the Civil Suit because the suit was filed only against the Respondent no. 5.
- 8 August 2018- An application was filed by the Petitioners before the District Magistrate for the possession of the property physically.
JUDGEMENT DIGEST ON CORPORATE BANK VS FIRESTAR INTERNATIONAL LIMITED
PETITIONER’S ARGUMENTS/ EVIDENCES-
The Petitioner has submitted that the Respondent no. 5 was granted the loan of Rs.500 lakhs which was followed by another 150 lakhs and similarly an additional term loan of 150 lakhs was also sanctioned. For the above-mentioned loans, the respondents no. 6 to 8 stood as guarantors with regards the above loan transactions. Respondent no. 5 had mortgaged their immovable properties for the purpose of such a credit facility. Respondent no. 5 defaulted in the payment of loan and therefore, the loan amount was declared as a Non-performing Asset by issuing a notice under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), the loan was called for again, and there was an initiation of proceedings as per Section 14 of the SARFAESI Act. The application was filed in the year 2018; however physical possession could not be gathered, therefore, the present petition was filed.
It was also averred and contended by the Petitioners that the borrower, that is the Respondent no. 5 is also a part of a frivolous litigation which was initiated by Respondent no. 9 for the purpose of obtaining a permanent injunction imposing himself as a tenant over the mortgaged property. For this suit, an ad interim injunction was granted. The Petitioner bank also contended that they filed an application under Order 1 Rule 10 of the code of Civil Procedure for its impleadment because the above-mentioned Civil Suit was filed only against Respondent no. 5. This application is still pending to be adjudicated.
In furtherance, there was also another contention laid that the Respondent no. 6 has filed an application for regularization of the loan amount but this was disposed of as none of the respondents came forward to deposit the amount that was defaulted and therefore the loan amount could not be regularized.
The Counsel for the Petitioner also submitted that the property above-mentioned was mortgaged much earlier than the lease agreement that enabled the Respondent to take over the property as a tenant. The lease agreement after the period of 11 months was not renewed and was occupied without any registration. The main contention was that the borrower did not seek the consent of the bank before putting the property in rent. It was further submitted that the respondent no. 9 did not approach the Debt Recovery Tribunal for the right of tenancy but instead it was approached to protect his possession by applying for a permanent injunction against respondent no.6 and this would not debar the petitioner to take physical possession of the mortgaged property.
RESPONDENT’S ARGUMENTS/ EVIDENCES-
All the respondents have put in their appearance and filed their replies but the petition was mainly contended by Respondents no. 5 to 8 and 9. Counsel for respondents’ no. 5 to 8 submitted that an offer of One Time Settlement was made but the bank specifically denied the same.
As far as Respondent no. 9 is concerned, his counsel submitted that he was just the tenant and therefore cannot be dispossessed under the initiation of proceedings under Section 14 of the SARFAESI Act.
CONTROVERSY INVOLVED FOR ADJUDICATION-
- Whether the order dated 08.08.2018 can be implemented and the Petitioners can take physical possession of the mortgaged property.
ALSO READ- SBI CONSUMER COMPLAINT CHANDIGARH PANCHKULA MOHALI
FINDINGS OF THE COURT-
After having pursued the arguments put forth by both the parties and examining the available record, it was held by the Court that there was merit in the case of petitioners. From the evidence placed at record, it has come to the notice that the respondents no. 6 to 8 have failed to pay their due to the bank. The Writ was filed through the wife of Respondent no. 6 who alleged that she was a partner to the extent of 25%, and that without issuing any notice as per Section 13 of the SARFAESI Act, the bank took measure to recover their loan amounts.
She was given a direction to pay 50% of the defaulted amount but she did not comply with the directions. Respondent no. 6 not only failed to pay his due but also projected Respondent no. 9 as a tenant over the mortgaged property. It was also brought to the notice that the respondents did not seek the consent of the petitioner-bank before allowing tenancy.
LIST OF JUDGMENTS INVOLVED-
Reliance was placed on the following two judgments-
- HDFC Bank Ltd. v. District Magistrate and Others.
- M/s Padam Motors Pvt. Ltd. v. District Magistrate-cum-Deputy Commissioner and Others.
ORDER-
The petition was allowed and a direction was issued to Respondents no. 2 to 4 to execute the order of the District Magistrate within a time frame of 15 days.
ALSO READ- WRIT JURISDICTION OF PUNJAB HARYANA HIGH COURT
This post was written by Haritha Dhinakarn
For case specific advice, please contact DRT writ lawyers of Punjab Haryana High Court in Chandigarh Panchkula Mohali Zirakpur Derabassi Kharar Baltana Mullanpur etc.
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