Disposed

Debajit Bezbaruah and Anr. v. Canara Bank and 2 Ors.

Gauhati HC4 Oct 2018WP(C)/6676/2018

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging enforcement notices under the SARFAESI Act. Upon hearing that a One-Time Settlement offer was feasible but the initial deposit amount and timeline were contested, the Court fixed a modified payment schedule involving an initial deposit and subsequent instalments to freeze the auction proceedings.

What did the court decide?

Writ petition disposed; direction given to deposit Rs. 40 lakhs within 10 days and balance Rs. 1.71 crore in three monthly instalments of Rs. 30 lakhs; auction proceeds frozen pending compliance.

Debajit Bezbaruah and Anr. Vs Canara Bank and 2 Ors. — Banking and Recovery | Gauhati HC (2018)

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GAHC010215102018

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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) 6676/2018

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1:DEBAJIT BEZBARUAH AND ANR.

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S/O- LATE NITYA NANDA BEZBARUAH, R/O- SHIVAM PATH, BYE LANE NO. 2, HOUSE NO. 22, GANESH MANDIR ROAD, NOONMATI, KAMRUP(M)-20

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2: SMT LOPAMUDRA BEZBARUAH W/O- DEBAJIT BEZBARUAH R/O- SHIVAM PATH BYE LANE NO. 2 HOUSE NO. 22 GANESH MANDIR ROAD NOONMATI KAMRUP(M)-2

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VERSUS

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1:CANARA BANK AND 2 ORS.

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REPRESENTED BY CHAIRMAN CUM MANAGING DIRECTOR, 320/4, AV ROAD, OPPOSITE BANGALORE MEDICAL COLLEGE, KALASIPILYA, BENGALURU, KARNATAKA, 560002

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2:THE DIVISIONAL MANAGER CANARA BANK CHANDMARI GUWAHATI-03.

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3:THE BRANCH MANAGER CANARA BANK CHANDMARI GUWAHATI-03

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Advocate for the Petitioner : MR. S K MEDHI

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Advocate for the Respondent : MR. S BORTHAKUR (R1)

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BEFORE

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HON’BLE THE CHIEF JUSTICE (ACTING) MR. ARUP KUMAR GOSWAMI HON’BLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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04.10.2018

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[ A.K. Goswami, CJ(Acting) ]

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Heard Mr. S.K. Medhi, learned Sr. counsel for the petitioners. Also heard Mr. S. Borthakur, learned counsel appearing for the respondents.

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The petitioners, who are husband and wife, are running business of computer stationery and printer. The petitioner No.1 is the proprietor of (i) Hemkosh Stationers, (ii) Hemkosh Computer Stationery Printer and (iii) M/s Sudarshan Press and the petitioner No.2 is the proprietor of M/s Tridev Printers.

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The petitioners had availed loan, details of which need not detain us, from State Bank of India. In the year 2007, on request made by the petitioners, the present respondents, Canara Bank and its functionaries, took over the accounts from the State Bank of India, New Guwahati Branch. All the loan accounts of the aforesaid establishments were classified as Non-Performing Assets (NPA). Resultantly, bank issued notices under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (in short, SARFAESI Act). Amounts of Rs.86,34,409.44, Rs.31,66,776.38, Rs.31,78,733.83 and Rs.13,50,000/- along with interest were demanded from M/s Hemkosh Computer Stationery Printer, M/s Hemkosh Stationers, M/s Sudarshan Press and M/s Tridev Printers, respectively, vide notices dated 02.12.2015. Subsequently, notices under Section 13(4) of the SARFAESI Act were also issued to the petitioners and the petitioners had filed an application under the SARFAESI Act, registered as Application No.55/2016.

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Mr. Borthakur submits that the said application was dismissed on 06.01.2017.

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It is averred in the writ petition that an original application was filed by the bank (no number etc. given) before the Debt Recovery Tribunal and a certificate was obtained by the bank from the Debt Recovery Tribunal (amount is not indicated).

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It appears from the pleading that a One Time Settlement (OTS) was arrived at between the parties on 17.08.2018.

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The OTS terms having not been adhered to, the respondent bank had withdrawn the OTS on 27.08.2018.

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It is submitted that once again a consolidated notice under Section 13(4) of the SARFAESI Act was issued to the petitioners on 12.09.2018 giving 30 days’ time. The bank had simultaneously issued an e-Auction notice dated 12.09.2018 fixing 27.09.2018. It is at that stage, the petitioners had approached this Court.

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It is submitted by Mr. Borthakur that on 13.09.2018 physical possession of the mortgage premises was sought to be taken, but the same could not be taken because of intervention of the District Administration.

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Mr. Medhi has submitted that the petitioners are ready and willing to liquidate the entire amount of outstanding with interest, for which 20 instalments may be granted.

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On an earlier occasion, Mr. Borthakur had prayed for some time to obtain instructions as to whether the bank would be inclined to still arrive at a negotiated settlement. Today, Mr. Borthakur has submitted that the bank had given a re-look into the matter and a sum of Rs.1.71 crore has been decided as full and final OTS, out of which Rs.60 lakhs should be paid immediately and remaining should be paid by two equal monthly instalments of Rs.55.50 lakhs each on or before 05.12.2018.

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On the above submission of Mr. Borthakur, Mr. Medhi has submitted that it will not be realistically possible, despite the genuine intention to make payment, to adhere to the above time schedule given by the bank as well as the amount of initial deposit asked for.

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Mr. Borthakur has taken further instructions from the officials of the bank, who are present, and submits that, at the most, the bank can accept extension of time till 28.02.2019 and initial deposit cannot be accepted for a sum less than Rs.40 lakhs to be paid within a period of one month.

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Mr. Medhi submits that, under the circumstances, the petitioners have no other option but to accept the same and they will make all endeavour to make such payment within the stipulated time.

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In view of the above, this writ petition is disposed of providing that the petitioners will make a deposit of Rs.40 lakhs on or before 03.11.2018. The balance amount of Rs.1.71 crore after deposit of Rs.40 lakhs will be paid in 3 instalments in each of the months of December, 2018, January, 2019 and February, 2019 and deposit made in each of the month shall not be less than Rs.30 lakhs. If the

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petitioners adhere to the aforesaid time schedule, the amount of Rs.1.71 crore shall remain frozen. However, if the petitioners fail to deposit in terms of this order, interest will accrue as per established norms and the bank will be at liberty to take further action for realisation of the amount, in accordance with law. No cost.

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Sd/Sd/- JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Debajit Bezbaruah and Anr. v. Canara Bank and 2 Ors.

Case brief

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Debajit Bezbaruah and Anr. v. Canara Bank and 2 Ors.

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