Gitanjali Jena Vs State Bank of India, Bbsr

Heard Mr. A.S. Nandy, learned counsel for the Petitioner, Mr. S.K. Mohanty, learned counsel for the Opposite Party Nos.1 and 2-Bank and Mr. A.R. Das, learned counsel for the Opposite Party No.4.

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The present writ petition has been filed under Articles 226 and 227 of the Constitution of India seeking a direction to the Opposite Party No.1- State Bank of India and Opposite Party No.4 to hand over the possession of the property in question i.e. Plot No.264/2480 under Khata No.476/986 measuring an area of Ac.0.094 dec. in Mouza-Vyasakabi Nagar, Sahadev Khunta, Balasore in terms of the order passed by this Court in WP(C) No.5678 of 2012.

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It is apt to note here that the aforesaid writ petition was preferred by the present Petitioner in her capacity as a guarantor assailing the steps initiated by the Opposite Party No.1-Bank under the SARFAESI Act. Taking note of the contentions of the parties, by order dated 3.3.2014 in WP(C) No.5678 of 2012, the auction sale was set aside and the amount of Rs.8 lakhs with accrued interest being the highest bid amount as quoted by the Opposite Party No.4 therein, as well as in the present writ petition, was directed to be refunded to the said Opposite Party No.4 with further sum of Rs.3 lakhs, within one month.

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For convenience of reference, the relevant extract of the said order dated 3.3.2014 passed in WP(C) No.5678 of 2012 is culled out hereunder:

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“xxx xxx xxx

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We have heard learned counsel for the parties. Learned counsel for the petitioner submits that apart from a sum of Rs.8 lakhs with accrued interest thereon being paid over to the auction purchaser by the Registrar (Judicial) of this Court, the petitioner is willing to pay a further sum of Rs.3 lakhs within one month and on this being done, the auction may be set aside having regard to the facts and circumstances of

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the case and on the spirit of the principle of Order 21 Rule 89 of the Civil Procedure Code.

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Learned counsel for the auction purchaser fairly states that the above payment will meet the claim of the auction purchaser.

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Learned counsel for the Bank states that the amount paid by the auction purchaser will be adjusted towards the loan account for which the petitioner is a guarantor, without prejudice to the Bank taking its legal remedies for recovery of the balance amount but charge on the mortgaged property will stand relinquished, in view of the auction sale by the Bank.

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Accordingly, we set aside the auction sale and direct that the amount deposited by the petitioner along with accrued interest be handed over to opposite party no.4 and with a further direction that a further sum of Rs.3 lakhs be paid to opposite party no.4 by the petitioner within one month from today by way of bank draft. If the said payment is not made, this petition will be treated to have been dismissed.

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5-A. It is apposite to note that such order dated 3.3.2014 passed in WP(C) No.5678 of 2012, adverted to hereinabove, was assailed before the Apex Court by filing Special Leave to Appeal No.17410 of 2014 by the Opposite Party No.4 herein.

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5-B. The said SLP was dismissed as withdrawn giving liberty to Opposite Party No.4 to pursue the appropriate remedy for redressal of his grievance.

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Alleging that though the Petitioner has complied with the order of this Court dated 3.3.2014 passed in WP(C) No.5678 of 2012 in making the deposit in time, the auction purchaser Opposite Party No.4 as well as the Opposite Party No.1-Bank are not handing over the possession, the present writ petition has been preferred.

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Pursuant to the notice issued, Opposite Party No.4 appeared through counsel Mr. A.R. Das and Mr. S.K. Mohanty appeared on behalf of the Opposite Party Nos.1 & 2-Bank.

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Learned counsel for the Opposite Party No.4 filed an affidavit dated 9.4.2024 stating that the matter has been amicably settled inter se between the parties in terms of the direction passed by this Court in WP(C) No.5678 of 2012.

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Keeping in view the background of the case at hand, by way of abundant caution this Court sought the personal appearance of the Opposite Party No.4 (Dinesh Chandra Bisoi). Accordingly, he appeared and being duly identified by his counsel, filed another affidavit today in Court reiterating his stand taken in the earlier affidavit dated 9.4.2024 and stating that he will abide by the order dated 3.3.2014 passed in WP(C) No.5678 of 2012. Such affidavit is taken on record.

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It is submitted by the learned counsel Mr. Nandy, on instruction, that Petitioner has already initiated steps for revalidation of the draft of Rs.3 lakhs and undertakes to hand over the same to Opposite Party No.4, within a period of one week hence. And, receipt to the said effect shall be submitted in the Registry.

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In such view of the matter, this Court directs the Opposite Party No.1-Bank as well as Opposite Party No.4 (Dinesh Chandra Bisoi) to hand over the possession of the property in question to the Petitioner within a period of two weeks hence.

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It is stated at the Bar that the demand draft of Rs.8 lakhs has been invested by the Registry in a Bank in an interest bearing account.

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Registry is directed to release the said amount of Rs.8 lakhs along with accrued interest thereon in favour of the Opposite Party No.4 (Dinesh Chandra Bisoi) on proper application and identification within one week of the Petitioner filing an affidavit that the property in question has been restored to her.

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