Allowed

Manabendra Sonowal v. the United Bank of India and Ors.

Gauhati HC7 May 2018WP(C)/5798/2010

Case brief

AI extract

What is this about?

This writ petition challenged possession and sale notices issued by a bank under the SARFAESI Act. The court noted police investigation completed with a charge sheet reflecting fraud allegations. It quashed the notices, finding neglect of duty in inspecting the mortgaged property and potential irreparable loss to the petitioner.

What did the court decide?

The possession notice dated 16.09.2010 and the subsequent sale notice dated 02.10.2010 issued under Section 13(12) of the SARFAESI Act, 2002 were quashed.

Manabendra Sonowal Vs the United Bank of India and Ors. — Cheque Dishonour | Gauhati HC (2018)

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GAHC010007852010

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 5798/2010

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1:MANABENDRA SONOWAL

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SON OF SHRI BUDURAM SONOWAL, HOUSE NO. 10, NIZARA PATH, NARAKASUR, KAHILIPARA ROAD, GUWAHATI-19, KAMRUP, ASSAM.

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VERSUS

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1:THE UNITED BANK OF INDIA and ORS

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11 HEMANTA BASU SARANI, KOLKATA -700001

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2:THE AUTHORIZED OFFICER AND ASSISTANT GENERAL MANAGER UBI CENTRAL ASSAM REGION PANBAZAR OPP. SHEIKH BROTHERS GUWAHATI-1.

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3:SHRI JAYANTA BHATTACHARJEE C/O SHRI MANABENDRA DEB R/O UDAYPUR BIRUBARI BESIDE KALIMANDIR GUWAHATI.

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4:SMTI. SUJATA BHATACHERJE C/O SHRI MANABENDRA DEB R/O UDAYPUR BIRUBARI BESIDE KALIMANDIR GUWAHATI.

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5:SHRI DAYAMAY BAYAN

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SON OF LATE CHANDRA KANTA BAYAN R/O KAHILIPARA GUWAHATI-19 KAMRUP M

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Advocate for the Petitioner : MR.A DEB

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Advocate for the Respondent : MS. A AHMED

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BEFORE

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HON’BLE THE CHIEF JUSTICE MR. AJIT SINGH HON’BLE MR. JUSTICE PRASANTA KUMAR DEKA

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Date : 07-05-2018

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JUDGMENT AND ORDER (ORAL)

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(P.K. Deka, J)

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Heard Mr. A. Deb, learned counsel for the petitioner. Also heard Mr. S. Dutta, learned senior counsel for the respondent Nos.1 and 2 and Mr. J.I. Borbhuiya for the respondent No.4.

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The petitioner purchased land measuring 2 kathas covered by Dag No.22 of KP Patta No.44 of village Kahilipara under mouza Beltola in the district of Kamrup (M), from one Shri Dayamay Bayan, the respondent No.5 in this writ petition vide two registered Sale Deeds both dated 26.11.2002. Having delivered the possession of the said land, the petitioner was granted the no objection certificate dated 05.03.2004 by the Guwahati Metropolitan Development Authority whereafter he built a two storied RCC building over the said plot of land. It is pertinent to mention here that the said respondent No.5 purchased the land measuring 2 kathas by way of registered sale deed No.5815/90 dated 12.09.1990. The present respondent No.3 is the proprietor of Origin Publication, Ulubari and assured the petitioner to get a loan from financial institution for building his house on the aforesaid plot of land. On the basis of the said assurance, the petitioner handed over the aforesaid certified copy of sale deed No.5815/90, along with the original registration receipt on the strength of which the respondent No.5 purchased the said land along with the rest of the two sale deeds, by way of which the petitioner purchased the said land from the respondent No.5. On 16.09.2010 to the utter surprise of the present petitioner, the bank officials of the respondent No.2 came to affix the possession notice under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) . From the

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said notice, the petitioner came to know that the respondent No.4, Smt. Sujata Bhattacherjee had obtained loan from the said respondent No.2/bank and the outstanding dues amounting Rs.24,97,834.22 could not be repaid. As against the said loan, the respondent No.5 was shown as guarantor who having refused to repay the amount, the bank decided to take possession of the said landed property on the strength of the equitable mortgage so created by the respondent No.5. It has also come to the notice of the petitioner that the respondent No.3 along with the wife, respondent No.4 had deposited the sale deed No.5815/90 on the strength of which the respondent No.5 purchased the land purportedly by forging the signature of the respondent No.5 showing him as the guarantor of the loan obtained in the name of respondent No.4 from the United Bank of India, Kamakhya Branch, Maligaon, Guwahati-11.

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The petitioner lodged an FIR before the Officer-in-charge, Dispur Police Station on 02.09.2010 which was transferred to the Officer-in-charge, Jalukbari Police Station as the fraud has been committed within the jurisdiction of the said Jalukbari Police Station and thereafter Jalukbari P.S. Case No.605/2010 was registered under Section 406/420/468/120(B) of the IPC against the respondent Nos.3 and 4. The respondent No.2, on the other hand, published a possession-cum-sale notice in the Assam Tribune, dated 02.10.2010 for the land measuring 2 kathas under the provisions of the SARFAESI Act, 2002 wherein the name of the respondent No.4 has been shown as the borrower and the respondent No.5 as the guarantor showing the schedule of land already sold to the present petitioner. It would not be out of place to mention here that the respondent No.5 also lodged an FIR before the Officer-incharge, Maligaon Police Outpost on 27.09.2010 alleging that he never put his signature nor stood as guarantor against the loan standing in the name of the firm of the respondent No.4. Alleging the aforesaid fact, the petitioner is before this Court by filing this writ petition for quashing of the possession notice dated 16.09.2010, issued by the Authorized Officer and the Assistant General Manager, United Bank of India, Central Region, Panbazar, Guwahati along with the possession cum sale notice dated 02.02.2010.

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Upon motion, this Court was satisfied to direct the parties to the writ petition to maintain status-quo as on 27.10.2010 in respect of the property and the possession cum sale notice dated 02.02.2010. Vide order dated 23.02.2018, this Court directed the petitioner to

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supply a copy of the petition to the learned Additional Senior Government Advocate, Assam who in turn should receive instruction from the Station Officer of Jalukbari Police Station regarding the status of investigation of the criminal case registered against the respondent Nos.3 and 4. In pursuance of the said order, the Deputy Commissioner of Police (Crime), Guwahati vide his letter dated 16.03.2018 addressed to the Additional Senior Government Advocate, Assam informed that the investigation in Jalukbari P.S. Case No.605/2010, under Section 406/420/468/120(B) of the IPC had already been completed and returned in charge sheet against the respondent Nos.3 and 4 as the accused persons.

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The respondent Nos.1 and 2 filed a joint affidavit-in-opposition thereby taking the stand that the respondent No.3, who maintained current and cash credit account with the respondent/bank, came to the bank along with the respondent No.5 and identified the said respondent No.5 and stated that the respondent No.5 did put his signature in the loan papers. It is also brought on record that as the matter covers under the SARFAESI Act, there is efficacious remedy mentioned in the said Act. So far the present petition is concerned the writ petition is not maintainable.

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Mr. Deb submits that already charge sheet has been filed against the respondent Nos.3 and 4 on the basis of the complaint lodged by the petitioner, under such circumstances prima-facie the allegation made in this writ petition against the respondent Nos.3 and 4 can be taken note of at least till the completion of the trial of the criminal case in order to come to a conclusion with respect to the fraud committed by the said respondents.

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Mr. Dutta, on his part, submits that the title opinion with respect to the land of the petitioner forming the subject matter of the mortgage against the loan availed by the respondent No.4 was submitted to the bank and in the said opinion consists of an affidavit purportedly sworn by respondent No.5 on 04.01.2007. On the basis of the said opinion and the contentions made in the affidavit that no encumbrance was created coupled with the identification of the said respondent No.5 by the respondent No.3, the bank acted on its bonafide belief that the land was unencumbered and disbursed the loan in favour of the respondent No.4. As such Mr. Dutta submits that there is no requirement of further interference by this Court.

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Considered the submission of the learned counsel. The matter in issue involves the element of fraud though the same is not the final opinion of this court. The police machinery had carried out the investigation against the complaint lodged by the petitioner and has submitted the charge sheet. Fraud vitiates everything. Though it has not been confirmed by any judicial proceeding holding that the respondent Nos.3 and 4 are involved in the fraud but at this stage if no relief is granted to the petitioner and permit carrying out of the punitive measures under the SARFAESI Act, 2002, irreparable loss would be caused to him in the event fraud stands proved against the respondent Nos.3 and 4. The sale deeds were executed on 25.08.2002 in favour of the present petitioner by the respondent No.5 and the residential building was constructed in the year 2004. A duty was cast upon the officials of respondent No.2 for physical inspection of the land which is the subject matter of an equitable mortgage securing the loan. The affidavit purportedly sworn by respondent No.5 dated 04.01.2007 and the building permission was issued in the year 2004 standing in the name of the present petitioner so the duty which was cast upon the bank officials seems to be neglected so far inspection of the subject of the equitable mortgage is concerned and for such negligence the petitioner cannot be punished that too without giving him a hearing if considered from the angle of sale transaction and building permission of 2004 standing in the name of the petitioner which were much prior to disbursal of the loan.

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We therefore quash the possession notice dated 16.09.2010 issued by the respondent/bank under Section 13(12) of SARFAESI Act, 2002 and also the subsequent sale notice dated 02.10.2010 inasmuch as the petitioner purchased the land by way of two registered sale deeds which have not yet been challenged by any of the parties to this writ petition.

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The writ petition is accordingly allowed.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

Manabendra Sonowal v. the United Bank of India and Ors.

Case brief

What is this about?

What did the court decide?

Manabendra Sonowal v. the United Bank of India and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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