The Gauhati High Court dismissed a writ petition challenging a bank's possession notice under the SARFAESI Act. The court held that the petitioners failed to honor commitments and pay EMI as directed by the interim order, thus making no case for interference.
Writ petition dismissed; possession notice upheld; interim order vacated.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010070122018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2168/2018
1:BIPUL CH. RABHA AND 2 ORS.
S/O LATE BIJOY CH. RABHA, R/O MILANPUR, HOUSE NO.13, GUWAHATI (ASSAM)
2: DIGANTA RABHA S/O LATE BIJOY CH. RABHA R/O MILANPUR HOUSE NO. 13 UDAY VIHAR SATGAON GUWAHATI (ASSAM)
3: PURNIMA RABHA W/O LATE BIJOY CH. RABHA R/O MILANPUR HOUSE NO. 13 UDAY VIHAR SATGAON GUWAHATI (ASSAM
VERSUS
1:THE BANK OF BARODA
ZOO ROAD TINIALI BRANCH, PARIMAL COMPLEX, R.G. BARUAH ROAD, GUWAHATI-781024, REP. BY ITS SENIOR BRANCH MANAGAR-CUMAUTHORIZED OFFICER
Advocate for the Petitioner : MR. U C RABHA
Advocate for the Respondent : MR. M DUTTA
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BEFORE HON'BLE THE CHIEF JUSTICE (ACTING) HONOURABLE MR. JUSTICE AJIT BORTHAKUR
JUDGMENT
Date : 03-10-2018
[A.K. Goswami, Chief Justice (Acting)]
Heard Mr. U. C. Rabha, learned counsel for the petitioners. Also heard Mr. M. Dutta, learned counsel for the respondent.
2. The respondent Bank accepted a request for grant of loan to the petitioners for the purpose of constructing a residential house and, accordingly, a sanction letter was issued on 09.05.2014 for Rs. 22,00,000/- (Twenty Two Lakhs). The petitioners executed a Memodandum of Entry dated 10.05.2014 by depositing documents pertaining to mortgage of immovable property in favour of the respondent bank.
3. In this writ petition, the petitioners call into question a possession notice dated 09.05.2017.
4. A perusal of the possession notice dated 09.05.2017 goes to show that a demand notice dated 18.01.2017 was issued asking the present petitioners to repay an amount of Rs. 22,03,605.95, as on 31.10.2016, within 60 days from the date of receipt of the said notice together with further interest at the contractual rate plus costs, charges and expenses till date of payment.
5. As the petitioners/the borrowers had failed to repay the amount, the Bank had taken possession of the mortgaged property in exercise of powers conferred under Section 13(4) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, SARFAESI Act) on 09.05.2017. The description of the property which was taken over possession is indicated in the said possession notice.
6. The petitioners in the writ petition have not stated about issuance of notice under Section 13(2) of SARFAESI Act. How much amount they had paid by way of repayment have also not been stated.
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7. When this application was moved on 18.04.2018, the Court had passed the following order :-
“Heard Mr. U.C. Rabha, learned counsel for the petitioners.
Three petitioners have joined together and have instituted the present common proceeding. Petitioner No.3 is the widow of late Bijoy Chandra Rabha whereas petitioner Nos.1 and 2 are her sons.
By filing this petition under Article 226 of the Constitution of India, petitioners seek quashing of possession notice dated 09.05.2017.
It is stated that for the purpose of constructing their residential house, petitioners had availed a loan from the Bank of Baroda, Zoo Road Tiniali Branch, Guwahati (Bank). The loan amount was Rs. 22 lakhs to be repaid in 192 monthly installments with EMI at Rs.23,353.00. The loan was sanctioned on 09.05.2014. For availing the above loan, petitioners had mortgaged a plot of land measuring 2 Kathas 10 Lechas situated at Satgaon, Guwahati.
According to the petitioners, they started depositing EMI after the moratorium period but could not continue with their deposit because of financial hardship. For failure to do so, Bank had issued possession notice dated 09.05.2017. Even thereafter, petitioners continued to make deposits into the loan account which was accepted by the Bank. According to the petitioners, they have deposited an amount of Rs.5,51,330.00 during the period from 27.05.2014 to 16.03.2018. Despite request by the petitioners to withdraw the possession notice, Bank has refused to do so.
Hence, this writ petition.
When the matter was called upon in the first half, we enquired from Mr. Rabha, learned counsel for the petitioners, as to how much amount petitioners would be able to deposit, he sought for time to obtain instructions. Accordingly, we deferred the matter till the second half. Now on instruction, Mr. Rabha submits that by 25.04.2018,
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petitioners will deposit Rs.50,000.00 and thereafter they will deposit every month the EMI amount of Rs.23,353.00.
Issue notice, returnable 6 weeks.
Steps by registered post with AD within three days.
Let the petitioners deposit Rs.50,000.00 by 25.04.2018 and also the EMI amount by the 10th day of May, 2018. There will be no bar for the petitioners to deposit more than the EMI amount.
Subject to the above, there shall be stay of the impugned possession notice dated 09.05.2017.
Let this matter be called upon again on 06.06.2018.”
8. At paragraph 7 of the affidavit filed by the respondent, it is stated as follows :-
“7. That the petitioner is a habitual defaulter and has failed to deposit the due installments. The contentions raised that after the possession notice was issued payments were made is also not true and intermittent deposits of some amount here and there cannot regularize the account and the dues are mounting by the day. The account is overdue to the tune of Rs. 2,25,000/- as on date and even the direction of this Hon’ble Court dated 18.04.2018 is not being followed by the petitioner, as though this Hon’ble Court directed to deposit the monthly EMI, the said amount is not being deposited. Even out of the initial sum of Rs. 50,000/- volunteered to be deposited was not totally deposited and only a sum of Rs. 40,000/- was deposited on 30.04.2018. Thereafter some payments have been made but the amounts paid are much less than the EMI of Rs 23,353/- payable per month. The petitioner has only deposited Rs. 8,000/- on 11.06.2018, 12,000/- on 30.06.2018, 10,000/- on 12.07.2018 and 5,000/on 23.08.2018, which are no where near the EMI payable.”
9. No reply affidavit has been filed by the petitioners to the said affidavit filed by the
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respondent.
10. Mr. Rabha submits that the statements made in paragraph 7 of the affidavit filed by the respondent are not controverted but he contends that there was no willful default by the petitioners. He has further submitted that a sum of Rs. 12,000/- (Rupees Twelve Thousand) was paid by the petitioners today.
11. Even though there is an alternative remedy under Section 17 of the SARFAESI Act, the writ petition was entertained and an interim order was passed giving liberty to the petitioners to deposit Rs. 23,353/- i.e., the equated monthly installment (EMI) every month. This was done, as it appears, to enable the petitioners to regularize their loan account. Admittedly, the petitioners have not paid the EMI amount as directed.
12. The sum of Rs. 50,000/-, which the petitioners undertook to deposit by 25.04.2018 was also not paid in full and a sum of Rs. 40,000/- was only deposited, that too after the due date, on 30.04.2018.
13. The petitioners having failed to honour their own commitment and also having failed to pay in terms of the direction issued, no case is made out for interference with the possession notice dated 09.05.2017 and, accordingly, the writ petition is dismissed.
14. Interim order passed earlier shall stand vacated.
JUDGE CHIEF JUSTICE (ACTING)
Comparing Assistant
2 issues framed by the court
Whether the writ petition challenging the possession notice issued under Section 13(4) of the SARFAESI Act warrants interference given the petitioner's failure to comply with court directions for depo
Whether alternative remedy under Section 17 of the SARFAESI Act bars the entertaining of a writ petition in this case.
3 provisions across 2 enactments
BIPUL CH. RABHA AND 2 ORS.
THE BANK OF BARODA
AJIT BORTHAKUR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
