Delhi High Court
Canara Bank vs Vineeta Pandey & Ors. on 1 July, 2024
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
$~ 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 507/2024
CANARA BANK ..... Appellant
Through Mr.Nikhil Kumar Singh with
Mr.Sundram Joshi and Ms.Shakti
Pandey, Advocates.
versus
VINEETA PANDEY & ORS. ..... Respondents
Through None
% Date of Decision: 01st July, 2024
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
MANMOHAN, ACJ : (ORAL)
1. Present appeal has been filed challenging the order dated 26th April,
2024 passed by the learned Single Judge in W.P. (C) 5861/2024 whereby the
learned Single Judge directed the appellant-bank to accept the Equated
Monthly Instalments (EMIs) from the respondents and has also directed the
appellant-bank to treat the writ petition filed by the respondents as a
representation.
2. Learned counsel for the appellant states that Mr.Bharat Bhushan
Mishra (Borrower), husband of the respondent No. l, applied for a housing
loan of Rs. 35,00,000/- dated 20th December, 2014 from the appellant-bank
to purchase Flat No. D-403, 4th Floor, Tower - D, Amrapali Princely Estate,
Plot No.GH- 02A, Sector-76, Noida, Uttar Pradesh. Subsequently,
permission to mortgage was granted on 23rd December, 2012. He states that
the Housing Loan Account No. 2768619000278 was declared NPA by the
appellant-bank on 28th October, 2020 due to non-payment of outstanding
dues.
3. He states that on 26th October, 2022, the appellant-bank filed an
Original Application No. 971/2022 before DRT-1, New Delhi for recovery
under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 and as
of today, the current outstanding balance for the housing loan account is
Rs.33,82,297.88/-. He states that on 08th May, 2023, respondent No.1 filed
an impleadment application in OA No. 971/2022 before the DRT-1 and the
said application is still pending before the DRT-I.
4. He states that respondent no. 1, neither has any authorization letter on
behalf of the borrower to deposit pending EMIs nor she is fulfilling the
eligibility criteria for availing the benefit of One Time Settlement (OTS)
scheme. He further states that respondent no. 1 is neither eligible for the
grant of benefit of the OTS scheme nor her payments towards the pending
EMIs can be accepted, as she is not a party to the loan account or associated
with it in any form i.e., she is neither a borrower nor a co-applicant or a
mortgager as the Housing loan account No. 2768619000278 and the
Mortgaged property is solely in the name of the borrower in his personal
capacity.
5. He states that it is a fundamental requirement that the EMIs against
any loan shall be paid by the borrower himself without making any defaults.
He further states that if the borrower defaults against a secured loan, it is the
discretion of the bank to either accept OTS or to recover the total
outstanding amount from auctioning the mortgaged property of the
borrower.
6. He states that the appellant-bank cannot accept EMIs and request for
representation for considering an OTS of the aforesaid loan account by the
respondents without any formal authorization by the borrower to act on his
behalf. He states that it is a well-settled principle of law by the Hon'ble
Supreme Court that, "no borrower can, as a matter of right pray for a grant
for the benefit of a one-time settlement scheme" and "No writ of mandamus
can be issued by the High Court in exercise of Article 226 of the
Constitution of India, directing the financial institution/bank to positively
grant a benefit of OTS to a borrower" as per ratio propounded in Bijnor
Urban Cooperative Bank Limited, Bijnor and Others vs. Meenal Agarwal
and Others, [(2021) SCC Online SC 1255] & State Bank of India vs.
Arvindra Electronics Pvt. Ltd. [CIVIL APPEAL NO. 6954 of 2022].
7. In the opinion of this Court, the learned Single Judge, by the
impugned order has only directed the appellant bank to consider the
respondent's writ petition as a representation and to decide the same in
accordance with law. In fact, during the course of hearing this Court is
informed that the appellant has already rejected the OTS offer of the
respondents. Consequently, the grievance raised by the appellant no longer
survives.
8. This Court is further of the opinion that the impugned order does not
entitle the respondents to raise the plea of waiver/acquiescence upon
acceptance of EMI's. Needless to state, the deposit of EMI's and
acceptance/rejection of the same by the appellant-bank is without prejudice
to the rights of the bank.
9. This Court is also of the opinion that, as the appellant has already
rejected the OTS offer of the respondents, it shall be open to the respondents
to challenge the same in accordance with law.
10. With the aforesaid clarification, present appeal stands disposed of.
The rights and contentions of all the parties are left open. This Court
clarifies that it has not commented on the merits of the controversy.
ACTING CHIEF JUSTICE
TUSHAR RAO GEDELA, J
JULY 01, 2024
KA
