Dismissed

Smt. Sarita Devi v. Central Bank of India Branch @348 Srinagar Hat Ayodhya and Anr.

Allahabad HC6 May 2024WRIC/24087/2020

Case brief

AI extract

What is this about?

The High Court examined a writ petition challenging orders by the DRT and DRAT regarding the dismissal of a Securitization Application due to delay. The court held the petition maintainable due to cause of action in Lucknow. Ultimately, it found no illegality in the lower tribunals' rejection of the delay condonation and dismissed the writ.

What the court decided

AI extract

Smt. Sarita Devi Vs Central Bank of India Branch @348… — Banking and Recovery | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:34766

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Court No. - 19

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Case :- WRIT - C No. - 24087 of 2020

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Petitioner :- Smt. Sarita Devi

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Respondent :- Central Bank Of India Branch @348 Srinagar Hat Ayodhya And Anr

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Counsel for Petitioner :- Shrish Kumar Gaur,Jyotindra Prakash Pathak,Prem Shanker Shukla Counsel for Respondent :- Ashish Chaturvedi,Ichchha Singh,Rishabh Tripathi,Santosh Kumar Shukla

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Hon'ble Subhash Vidyarthi,J.

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(Order on Civil Misc. Application No.9 of 2023 - Application for condonation of delay in filing the recall application)

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Heard Shri Prem Shanker Shukla, learned counsel for the petitioner, Shri Ashish Chaturvedi, learned counsel for the respondent no.1/Central Bank of India and Shri Santosh Kumar Shukla, learned counsel for the respondent no.2.

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Cause shown for delay in filing the recall application is sufficient. The application is allowed .

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Delay in filing the recall application is condoned.

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(Order on Civil Misc. Application No.10 of 2023 - Application for recall)

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Cause shown is sufficient. The recall application is allowed .

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The order dated 21.09.2022 is hereby recalled.

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The writ petition is restored to its original number.

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(Order on writ petition)

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Heard Shri Prem Shanker Shukla, learned counsel for the petitioner, Shri Ashish Chaturvedi, learned counsel for the

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respondent no.1/Central Bank of India and Shri Santosh Kumar Shukla, learned counsel for the respondent no.2.

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By means of the instant petition, the petitioner has challenged the order dated 06.12.2019 passed by the Debt Recovery Tribunal, Allahabad in Securitization Application No.660 of 2018, whereby I.A. No.776 of 2018 filed by the petitioner for condonation of delay in filing the aforesaid application, as also the Securitization Application, itself was dismissed. The petitioner has also challenged the validity of the order dated 06.11.2020 passed by the Debts Recovery Appellate Tribunal, Allahabad in Appeal No.483 of 2019 which was filed against the order dated 06.12.2019 passed by the Debt Recovery Tribunal.

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Learned counsel for the petitioner has raised the preliminary objection that as both the impugned orders were passed outside the limits of territorial jurisdiction of this Court sitting at Allahabad, the writ petition is not maintainable before this Court sitting at Lucknow.

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Replying to the aforesaid preliminary objection, the learned counsel for the petitioner submitted that the petitioner had taken a lone from opposite party no.1/Central Bank of India, Ayodhya, District - Faizabad and the Bank has sold away property of the petitioner which was situated at Faizabad. As the subject matter of the dispute was situated within the territorial limits of jurisdiction of this Court sitting at Lucknow, a part of the cause of action has arisen at Lucknow and, therefore, the writ petition is maintainable at Lucknow.

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Accepting the aforesaid submission of the learned counsel for the petitioner, the Court proceeds to examine the merits of the case.

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Brief facts of the case are that the petitioner had taken a housing lone from the respondent no.1-Bank. The Bank has issued a lone/limit sanction letter dated 26.10.2012, wherein it was stated that a lone of Rs.5,94,000/- had been sanctioned in favour of the petitioner at 10.5% Annunal interest at the EMI payable for Rs.2,486/-. It is the petitioner's case that as against the EMI of Rs.2486/- she continues to pay Rs.2,500/- per month. Yet the opposite party no.1/Bank suddenly start demanding EMI of Rs.6,610/- which was exorbitant, as it was more than double the amount of EMI mentioned in the lone sanctioned letter. On failure of the petitioner to pay the exorbitant amount being demanded by the respondent no.1/Bank, the Bank illegally occasioned the mortgage property of the petitioner in favour of the respondent no.2. The petitioner had challenged the sale of her house in favour of the opposite party no.2 by filing Securitization Application, with an application for condonation of delay, which has been wrongly rejected by the Debt Recovery Tribunal and affirmed by the Debt Recovery Appellate Tribunal.

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The opposite party no.1/Bank has filed a counter affidavit annexing therewith a copy of the loan agreement executed between the petitioner and the Bank, wherein it is categorically written that the EMI payable for Rs.2,486/- plus monthly interest and the rate of interest was floating.

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Learned counsel for the Bank has submitted that Rs.2,486/was the EMI payable towards repayment of principal loan amount and apart from the principal amount, the petitioner was liable to pay interest also at the rate of Rs.10.5% per annum, which was categorically mentioned in the loan agreement which had been signed by the petitioner.

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A copy of the letter dated 03.03.2014 sent by the petitioner to

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the Branch Manager of the opposite party no.1/Bank has been annexed along with the writ petition itself, wherein the petitioner stated that the Bank was demanding Rs.6,610/- per month towards repayment of the loan. As against Rs.2486/mentioned as EMI in the loan sanctioned letter, she was paying Rs.2500/- per month and she was not capable of paying any higher amount towards EMI. The petitioner requested that the repayment of loan be rescheduled. However, it appears that no action was taken on the aforesaid request of the petitioner and her property was put to auction and the same was purchased by the opposite party no.2. Copies of letters dated 09.12.2019 and 23.12.2019 sent by the petitioner to the opposite party no.1 have been annexed with the counter affidavit, wherein she has sought some time for vacating the house, which had been auctioned on 20.02.2018. From this, it is established that the petitioner had full knowledge of sale of the house in question. On 08.08.2021, the petitioner had given another application to the Bank stating that she want to take out her movable properties which were kept in a room of the house in dispute, which had been sold. Accordingly, the same was opened and her household goods were returned to the petitioner.

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The petitioner has herself annexed a bank draft dated 25.10.2018 issued for Rs.4,66,658/-, which was given to her by the Bank towards the amount remaining balance after auction of the mortgaged house and adjustment of the sale consideration towards repayment of the loan. The petitioner had requested for re-validation of the bank draft by means of an application dated 06.09.2021 and she has received back the balance amount.

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In the application filed for condonation of delay in filing the Securitization Application, the petitioner had stated that she had filed a writ petition challenging auction of the mortgage house,

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which was dismissed by means of an order dated 22.03.2018. She stated that she is a poor person and she had approached the District Magistrate and was hopeful of getting some relief from there and for this reason, some delay occurred in filing the Securitization Application.

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The Debt Recovery Tribunal found that the reason assigned by the applicant is not convincing and the petitioner had not challenged the impugned orders within the limitation period in spite of full knowledge.

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The Debt Recovery Appellate Tribunal has considered the ground made out by the petitioner for condonation of delay. The Debt Recovery Appellate Tribunal has considered that the petitioner had admitted service of possession notice dated 14.09.2018 and of the sale notice dated 11.02.2018. Section 17 prescribes limitation period of 45 days for filing a Securitization Application. This period commences from the date of possession notice but the petitioner did not file the Securitization Application within the prescribed period and she did not file the Securitization Application even within 45 days from the date of issuance of notice for sale of the property. The Debt Recovery Appellate Tribunal was of the view that the delay of 11 months in challenging possession notice and 5 months in challenging sale notice had not been sufficiently explained.

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The petitioner had filed writ petition No.8329 of 2018, which had been dismissed on 22.03.2018. In spite of it, the petitioner filed the Securitization Application on 31.07.2018 i.e. after expiry of more than four months since dismissal of the writ petition.

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When the property of the petitioner had been put to auction

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and it had been purchased by the opposite party no.2 and sale certificate has been issued in favour of the opposite party no.2 on 06.04.2018, the delay caused by the petitioner in filing the Securitization Application before the Debt Recovery Tribunal, in spite of valuable rights having been created in favour of the opposite party no.2, does appear to be justified. The explanation that the petitioner was seeking her remedy before the District Magistrate even after dismissal of the writ petition, has not been accepted by the Debt Recovery Tribunal and Debt Recovery Appellate Tribunal and there is no illegality in the orders passed by both the tribunals in rejecting this contention of the petitioner.

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Accordingly, this Court does not find any illegality in the impugned order dated 06.12.2019 passed by the Debt Recovery Tribunal, Allahabad in Securitization Application No.660 of 2018 and order dated 06.11.2020 passed by the Debts Recovery Appellate Tribunal, Allahabad in Appeal No.483 of 2019. This writ petition lacks merits and is hereby dismissed .

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Order Date :- 6.5.2024 KR

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(Subhash Vidyarthi,J.)

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Digitally signed by :- RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Smt. Sarita Devi v. Central Bank of India Branch @348 Srinagar Hat Ayodhya and Anr.

Case brief

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Smt. Sarita Devi v. Central Bank of India Branch @348 Srinagar Hat Ayodhya and Anr.

Case brief

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