Dismissed

Mohan Lal v. State Bank of India

DRT6 Feb 2023SA/679/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal dismissed the applicant's securities application to restore possession of a mortgaged property. The court held that the applicant had misleadingly concealed that six loan accounts, including four others besides the principal dispute, were secured by the same property through prior mortgages. Consequently, the bank retained its lien over the property for the outstanding

What the court decided

AI extract

Mohan Lal versus State Bank of India — Contract and Commercial Disputes | DRT (2023)

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SA/679/2022

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DEBTS RECOVERY TRIBUNAL, JAIPUR PRESIDING OFFICER: SH. VIVEK SAXENA

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SECURITIZATION APPLICATION No.- 679/2022

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MOHAN LAL

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S/o Sh. Divan Chand Currently Residing at : 25, Pooja Colony, W/No. 43 Secreet Heart Convent School, Behind Avdh Vidhyalaya, Shriganganagar (Raj.) 335001

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………Applicant

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Versus

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STATE BANK OF INDIA RASMECCC 2^nd Floor, Public Park, Sriganganagar – 335001 Through its Authorized Officer, Sh. Prashant Kumar Singh

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---- Respondent Bank

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Counsel –

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Sh. Prashant Tripathi , Ld. Counsel for the Applicant

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Sh. Alok Garg, Ld. counsel for Respondent Bank

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(Final Order)

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(06.02.2023)

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This SA was filed on 31.10.2022 and it is admitted in the SA, that the applicant availed an overdraft credit facility of Rs. 400000/- from the respondent bank in the month of November, 2013 and account was illegally classified as NPA on 07.08.2018, Demand Notice was issued on 10.10.2021, they objected to it and respondent bank took physical possession on 28/29.092022.

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On 06.10.2022, the bank served a possess notice stating them outstanding amount of Rs, 313923/and on 07.10.2022, amount of Rs. 316000/- was deposited by the SA applicant with the respondent bank but the bank neither restored the possession in

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SA/679/2022

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the favour of SA applicant our retuned the title deed as the bank claimed own. That they have lien over the property, on account of default in education loans availed by the applicants.

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As per facts of the case, as mentioned in Para 5 to the SA, only availing credit facility of Rs. 4 lacs is admitted and only in Para 5. XV first time it is admitted that the applicant is a joint borrower, who availed students loans with the respondent bank and there are total four education loan but, it is challenged that the subject property was not mortgaged by the applicant with the respondent bank.

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In Para XVI, reference of RBI Circular dt. 12.04.2010, which states that the educational loans are collateral free loans but it is nowhere admitted or informed that all the educational loans are not regular.

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In the prayer clause, it is prayed to restore the physical possession, to return original title deeds, to issue NOC, to quash Demand Notice dt. 30.10.2021 and also to quash Possession Notice dt. 29.09.2022.

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Ld Counsel for the SA applicant forcefully argued that the bank cannot claim a loan on the subject property against the educational loans, so the respondent bank, do not have any right to withhold possession and title deeds of the mortgaged property and so they prayed accordingly.

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On the other hand, Ld. Counsel for the respondent bank strongly objected the prayer on the ground that the applicant also executed extension of charge on existing equitable mortgage for additional loan on 07.02.2014 and initially mortgage was created on 05.09.2011, and so he argued that the applicant approached this Tribunal with misleading facts, so he prayed to dismiss the SA.

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Along with the reply, copy of letter from mortgagor indicating intention to create mortgage is filed on record and from perusal of this letter, executed by SA

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SA/679/2022

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applicant, it is clear that there are total six accounts, detailed as under:-

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CC. 61140260395 New Era Cos. Ship. Rs.4.00 lacs.

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OD. 61207578347 Mohan Lal Rs. 4.00 lacs 3. ED. 61083509006 Noopam Makkan Rs. 1.68 lacs 4. ED. 61083511243 Priya Makkan Rs. 1.73 lacs 5. ED. 61176572188 Priya Makkan Rs. 2.05 lacs 6. ED. 61214294890 Noopam Makkan Rs. 2.79 lacs

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Rs. 16.25 lacs

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As this ground is to be decided first, so without proceeding ahead, this issue of mortgage in other 5 loan accounts is being decided.

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Along with the rejoinder to reply, first time at AnnA/12, dt. 24.11.2019, loan sanction letter, in favour of Miss Nupur Makkan & Mohan Lal is filed and from the perused of this letter, it is clear that educational loan was sanctioned on 24.11.2009, whereas the RBI issued a circular on 12.04.2010 (Ann-A/11).

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From the perused of A-R/1 and R/2, it is clear that the applicant created mortgage and further extended charge in the light of these two letters/undertakings but failed to point out anything in the entire SA, and very first time only copy of one sanction letter dt. 24.11.2009, is filed on record.

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The applicant is trying to take undue benefit of RBI, curcular dt. 2001 and in Para 2(III), it is mentioned that “No security may be irriated upon for loans up to Rs. 4 lacs”, because, word “may” is used and not “Shall” so, it is clear that it was at the sweet will of the bank, either to serve the loan through mortgagor not. At the similar time, it is clear that it is the applicant who executed letter at An R/1 and R/2, with intention to create charge, on the subject mortgage property against all six loans.

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An R/1 and R/2 are copied here under for more clarity and ready reference:-

SA/679/2022

SA/679/2022

Accordingly, in my considered opinion, the applicant wilfully created mortgage of the subject property in all the six loan accounts, including four educational loans also but failed to inform this fact, while filing this SA, so it is clear that the applicant has not approached this Tribunal with clean hands.

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SA/679/2022

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I am also of the view, that as the property is mortgaged in other five loan accounts also, so there is no violation of any terms and conditions executed by the applicant in An R/1 and R/2, rather it is the applicant, who is willfully avoiding repayment of other loan accounts also and is praying for the relief, based on misleading facts.

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Ld. Counsel for the applicant relied upon total six Judgments of Hon’ble Apex Court and Hon’ble High Courts. I have given careful perusal to all the judgment and detailed discussion is hereunder.

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The judgment of Hon’ble Gujrat High Court, in the matter of Manisha Rahul Brahmbhatt Vs Bank of Baroda, the issue of credit facility granted in PMMY, is involved whereas, in the present matter the applicant himself created mortgage of his property in all six loan accounts. So, the facts are not similar and accordingly applicant is not entitled to any benefit from this judgment.

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The judgment of Hon’ble Apex Court in the matter of Sardar Associates, the issue of one time settlement is discussed but here in this case, the applicant failed to offer any settlement, so this judgment also do not helpful to him.

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In the matter of Gaurangbhai Bipin Bhai Pandaya Vs Bank of Baroda, decided by Hon’ble Gujrat High Court, it was held that the bank recovered full amount and certain amount remained surplus but here, in the case, in hand, the applicant is defaulter in other five loan accounts, mortgaged in all six loan accounts was created in the light of AnR/1 & R/2, so, this judgment is also not helpful to him.

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Similar, is the position with the judgment of Hon’ble Bombay High Court passed in the matter of Sunil Vs Union Bank of India wherein amount against entire outstanding loan deposited but, here in this case the applicant is defaulter in total five

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cases, so this judgment is also not in favour of applicant.

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In the matter of M. Shanthi Vs Bank of Baroda decided by Hon’ble Madras High Court also directions were issued for return of title deeds as entire loan amount was paid but in the case in hand default in other five loan accounts still exists, so this judgment is also not helpful to the applicant.

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The Judgment of Hon’ble Apex Court, in the matter of Zonal Mange Central Bank of India Vs Devi ltd. The issue of return of title deeds was allowed but here in this case, property is mortgaged in other five loan accounts, so the liability is not complete and this judgment also do not provide any help to applicant.

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Ld. Counsel for the respondent bank relied upon Judgements of Hon’ble Delhi High Court in the matter of Rajkumar & Anr. Vs Syndicate Bank and the para referred by him are reproduced here as under for more clarity –

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“Only to secured the dues in the account of M/s Ace Exports and not as a guarantor for the dues of M/s K.B. International. It is argued that the security given for dues in one account cannot be utilised for dues of another account.”

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“The counsel for the petitioners does not dispute that the respondent as a banker has a right of general lien, as held by the Supreme Court in Syndicate Bank Vs. Vijay Kumar (1992) 2 SCC 330. Reliance however is place on the judgment of the Division Bench of the Orissa High Court in Alekhs Sahoo Vs. Puri Urban Co-operative Bank Ltd. AIR 2004 Ori 142.”

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“a bank can exercise general lien over the properties of a customer for the general balance in such customer s account and not for the genral balance of come other customer s account unless the customer has expressly agreed that his property can be

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retained as a security for the outstanding balance in the account of some other customers.”

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“Single Judges of this Court in State Bank of India Vs Diwanji Buildwell (India) Pvt. Ltd. 111 (2004) DLT 267 and Texla Towers Ltd. Vs. Punjab National Bank (2004) 109 DLT 975 to have also proceeded on the premise that the banker s lien extends to title deeds of immovable property deposited with the bank.”

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(h) A Single Judge of the High Court of Calcutta in R.K. Agencies Ltd. Vs Central Bank of India AIR 1992 Cal. 193 to have also observed that the concept of bank s lien is generally in respect of what are called collaterals, i.e. documents, securities etc. which come into the hands of the banker and are intended to cover the banker s claim against the customer.

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(j) A division Bench of the High Court of Madras in The Committee representing RBF Nidhi Limited Vs. Vipanchi Investment Pvt. Ltd. MANU/TN/0143/2009 to have again though without going into the said aspect held the right of general lien to extend over title deeds of immovable property deposited with it.

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(k) A Single Judge of the High Court of Karnataka in Sri Nagendra Prasad Vs. The Manager, State Bank of My: MANU/KA/3074/2013 to have also proceeded on the premise that the banker s lien extends to title deeds of immovable property deposited with the bank.”

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(l) A Single Judge of the High court of Madras in Sree Vadivambigai Ginning Industries Pvt. Ltd. Vs. Tamil Nadu Mercantile Bank Limited MANU/TN/0913/2015 to have also proceeded on the premise that the banker s lien extends to title deeds of immovable property deposited with the bank.

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(m) State Bank of India Vs Jayanthi, Aarthi Lakshmi and Sanjai Balaji AIR 2011 Mad. 179 to have also

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proceeded on the premise that the banker s lien extends to title deeds of immovable property deposited with the bank.

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(n) A Division Bench of the Bombay High Court in Shri Surendra Vs. Chief Manager & Authorized Officer State Bank of India MANU/MH/ 1328/2013 to have also proceeded on the premise that the banker s lien extends to title deeds of immovable property deposited with the bank”

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“20. Needless to state that after the dues of the respondent Bank relating to M/s K.B. International/Mr. Dayanand Basoya are satisfied, the petitioner in accordance with law shall be entitled for release of the title deeds, unless the said dues are satisfied from the said property of the petitioners.

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No costs.”

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From the above said judgment, it is clear that there is no breach of any contractual agreement on behalf of the Bank, as the applicant fails to discharge his entire liability.

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Now, as rightly pointed out by Ld. Counsel for the respondent bank conduct of applicant and his family members is required to be discussed in the light of massages forwarded by them on social media platform “Twitter”. Copies of all the massages were filed by the respondent bank on 25.01.2023 through Dy No. 969.

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The applicant and his family member, created such a pathetic story on social platform which is extremely based on misleading fact is against an officer of the bank in personal capacity, which is sufficient to defame him in his official capacity, whereas the applicant is a willful defaulter in other five loan accounts and by flowing such false massages on social media the applicant & family members (Priya Makkan, Daughter) the applicant

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tried to create under mental pressure on the bank officers.

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Therefore, in my considered opinion, the conduct of applicant & his family members is completely indicant, completely intolerable and is required to be discouraged.

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Accordingly, the respondent bank, do have every night to recover the amount of remaining five loan accounts, by enforcing right over the mortgage property and this SA. Being devoid of any merit in disposed of as dismissed.

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(Vivek Saxena) Presiding Officer DRT, Jaipur

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SA/679/2022

Mohan Lal v. State Bank of India

Case brief

What is this about?

What the court decided

Mohan Lal v. State Bank of India

Case brief

What is this about?

What the court decided

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