Dismissed

Dr. Kishor Chimasaheb Nimabalkar and Anr. v. State of Maharashtra and Ors.

Bombay HC5 Dec 2016WP/5639/2016

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of a One Time Settlement application by an Asset Reconstruction Company. The bench held that repeated applications were a delay tactic and dismissed the petition, allowing possession proceedings under the SARFAESI Act to continue.

What did the court decide?

Writ petition dismissed; Rule discharged; No costs.; Possession proceedings to continue without stay.

Dr. Kishor Chimasaheb Nimabalkar and Anr. Vs State of… — Banking and Recovery | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 5639 OF 2016

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1 Dr. Kishor Chimasaheb Nimbalkar Age 57 yrs., Occu. Doctor, R/o. C/o- Neela Hospital & Diagnostic Center, 1126, 'D' Ward, Shukarwar Peth, Gangawaesh, Kolhapur.

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2 Sou. Dhanshree Kishor Nimbalkar, Age 49 yrs., Occu. Self employed, Address- As above. ….Petitioners.

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Vs.

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1 State of Maharashtra Through Collector/District Magistrate, Kolhapur,

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2 The Reserve Bank of India, Through the Regional Director for Maharashtra & Goa, R.B.I. Main Building, P.O. Box No. 901, Shahid Bhagat Singh Road, Mumbai-400001.

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3 Authorized Officer, Asset Reconstruction Company Ltd., Arcil Arms Office, F-9, Omkar Plaza, City Survey, No.1082/1, 1^st Floor, Hissa No. 1, Near ICICI bank, Bagal Chowk, Rajrarampuri Main Chowk, Kolhapur-416 008. 4 Authorized Officer, ICICI Bank Ltd., Vasant Plaza & Left Wing, Rajaram Road, Kolhapur.

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5 Authorized Officer, Punjab and Maharashtra Co-op. Bank Ltd. Branch- K-2 E, Station Rajaram Road, Kolhapur.

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6 Tahasildar, Karveer Division, Tal- Karveer, Dist. Kolhapur ….Respondents.

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Mr. Sandeep S. Koregave for the Petitioners. Mr. C.P. Yadav, AGP for Respondent Nos. 1 and 6. Mr. R.L. Motwani for Respondent No. 3.

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CORAM : ANOOP V. MOHTA AND

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A.S. GADKARI, JJ. DATE : 5 DECEMBER 2016.

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ORAL JUDGMENT (PER ANOOP V. MOHTA, J.):-

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Rule. Rule made returnable forthwith.

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Heard finally, by consent of the parties.

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2 The Petitioners, by this Writ Petition filed on 8 May 2016,

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have challenged the stated action of Respondent No.3, not considering the Application for One Time Settlement Scheme (OTS Scheme), under the Reserve Bank of India Guidelines (RBI Guidelines). The prayer is also made for appropriate orders and to issue direction to consider the Application for OTS scheme.

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3 The background history of the issues so raised in the matter, is as under:-

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The Petitioners are running the Hospital. Respondent No.4 is a bank, registered under the Banking Regulation Act and runs under the RBI guidelines. The Petitioners obtain a home loan of Rs.34,00,000/- in the year 2002 and another loan of Rs.6,80,000/- in the year 2003 from Respondent No.4. The Petitioners by 78 EMI of Rs.49,273/- per EMI, paid total amount of Rs.40,00,000/-. But due to some difficulties the Petitioners unable to repay some EMIs within time. On 15 December 2007, Respondent No.4-Bank issued two notices under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (for short, “the SARFAESI Act” ) for amounts of Rs.6,53,191.68 and 41,86,231.12/-. The Petitioners send reply and raised objection to the Bank notice. Respondent No.4-Bank not replied to the objections.

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4 In the year 2009, Respondent No.4 transferred loan account to Respondent No.3. On 19 June 2009, Respondent No.3 issued notices under Section 13(2) of the SARFAESI Act, for two account amounting to Rs.54,89,782.12 and Rs.8,49,550.37/-. On 8

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June 2011, Respondent No.3 issued notice under Section 13(4) of the SARFAESI Act and denied the Petitioners' request of OTS Application. The Petitioners trying to settle the loan accounts by way of OTS, but no proper response received from Respondent No.3. Respondent No.3 rejected the proposal. On 16 November 2013, Respondent No.1Collector passed final order under Section 14 of the SARFAESI Act whereby, directed to execute the order within one month. The Petitioners again tried to settle the loan accounts as per the RBI Guidelines under OTS Scheme, but in vein. On 5 May 2016, Respondent No.5 send the notice of possession at the instance of Respondent No.3 stating to hand over the possession by 19 May 2016. Hence the present Writ Petition.

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5 By impugned communication, Respondent No. 3 has already rejected the proposal so submitted by the Petitioners in the year 2011 itself. The Petitioners, inspite of the rejection of the proposal, filed applications after applications for reconsideration. That resulted into delay in taking further steps/measures as required under Section 13 of the SARFAESI Act. The basic notice issued under Section 13(2) of the SARFAESI Act was of dated 11 February 2008.

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Respondent No.3, having once rejected the Applications, required to proceed as per the scheme and object of the the SARFAESI Act, without further delay. However, because of various Applications, further measures are delayed. The submission that Respondent No.3 needs to consider the OTS Scheme, based upon the Apex Court Judgment in Sardar Associates & Ors. Vs. Punjab & Sind Bank & Ors. 1 in our view, is of no assistance. The power of RBI to frame such guidelines has been recognized and accepted by the Supreme Court by taking note of provisions of law, including the SARFAESI Act and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, “the RDDBFI Act” ). This Judgment, in any way, cannot be utilized by the Petitioners for any direction to be issued to the Bank and/or against the Bank for considering the Applications filed again and again, as already rejected so recorded above. It is settled that ultimately, the Financial Institutions/Banks required to consider the facts and circumstances while applying the RBI Guidelines. There is no scope and/or power of the Court which can be invoked by the persons like the Petitioners for any mandamus or to decide such Applications, once it is rejected by giving the detailed reasons. In any case, that cannot be the reason to delay for taking further 1 (2009) 8 SCC 257

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steps/measures under the SARFAESI Act.

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6 This is one of the case, where the Petitioners, by filing the said Applications from time to time, avoided to give the possession as Respondent No.3 has already proceeded further under the SARFAESI Act to take physical possession of the property in question. We have noted that the Respondents has already invoked Section 14 of the SARFAESI Act and proceeded by getting the appropriate order from Tahasildar of the Karveer Division, Kolhapur. Through the affidavit, a document (punchanama) dated 20 February 2016 is placed on record showing the Petitioners' endorsement that Petitioner No.1 himself would pay the amount and/or give the vacant possession within 15 days with a clear understanding that he would not obstruct to the possession being taken. The volunteered statement so recorded, is a part of affidavit in reply of Respondent No. 3, dated 18 May 2016. Inspite of above statement, the Petitioners failed to make the payment and not giving the possession though recorded above.

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7 In vacation on 18 May 2016, the Division Bench of this

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Court, (headed by Mr. Justice A.S. Gadkari, J.) passed an order “No

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urgency, Remove from Board.” and orally directed him to deposit 50% of the outstanding amount within one week, as per the earlier order. This statement is also not in dispute. The learned counsel appearing for Respondent No.3, however, submitted that inspite of opportunity so given again by the Court/Authority, the Petitioners failed to deposit the amount and got delayed the execution/the proceedings of taking possession of the property in question.

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8 The submission of the learned counsel appearing for the Petitioners that, now the case is fixed for taking possession by the Tahasildar of Karveer Division, Kolhapur. Therefore, requested to further stay the execution again, as he is willing to deposit the amount. The learned counsel appearing for Respondent No.3, however, in view of above earlier orders and the conduct of the Petitioners, resisted the same and submitted that whole intention only is to delay the execution of the order of taking possession. The learned counsel appearing for the Petitioners, on instructions, also expressed their inability even to deposit the basic amount with interest, of the notice before the next date.

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9 Therefore, taking overall view of the matter, and as even

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notice under Section 13 of the SARFAESI Act, itself is of the year 2007-2008 and the same is pending and all the measures out of the same are pending and so also the execution/proceedings to take possession though ordered by the learned Authority under Section 14 of the SARFAESI Act, we see this is not the case, where the Court in Writ Jurisdiction, in the above admitted position of facts, apart from the scheme and object of the SARFAESI Act so recorded in the Judgment passed by the Division Bench of this Court (Coram:- Anoop V. Mohta and A.A. Sayed, JJ.) in Blue Coast Hotels Limited Vs. IFCI Limited & Anr.2 and the conduct so recorded above, to grant any discretionary and/or protective reliefs to the Petitioners.

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10 Therefore, we are inclined to dismiss the present Writ

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Petition at this stage, itself. Writ Petition is dismissed. Rule discharged accordingly. No costs.

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(A.S. GADKARI, J.) (ANOOP V. MOHTA, J.)

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2 2016 (3) ABR 769

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Dr. Kishor Chimasaheb Nimabalkar and Anr. v. State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Dr. Kishor Chimasaheb Nimabalkar and Anr. v. State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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