Smti Nilima Kalita vs The Housing And Urban Development ...
2023 Latest Caselaw 4122 Gua

                                                                     Page No.# 1/6

GAHC010007352014




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

                               Case No. : WP(C)/1542/2014

            SMTI NILIMA KALITA
            W/O- LT. KRISHNA KANTA KALITA, R/O- S.B. HOUSING SOCIETY, TRIPURA
            ROAD, BELTOLA, GUWAHATI, DIST.- KAMRUP M, ASSAM.


            VERSUS


            THE HOUSING and URBAN DEVELOPMENT CORPORATION LIMITED and 2
            ORS
            A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING
            REGISTERED OFFICE HUDCO BHAWAN, INDIA HABITAT CENTRE, CORE- 7
            -A, LODHI ROAD, NEW DELHI 110003 DELHI, INDIA, REP. BY ITS
            CHAIRMAN CUM MANAGING DIRECTOR.

            2:HOUSING and URBAN DEVELOPMENT CORPN. LTD.
             REGIONAL OFFICE
             OPP. PUNJAB NATIONAL BANK
             ZOO ROAD
             GANESHGURI
             GHY- 5
             REP. BY ITS REGIONAL MANAGER.

            3:S.B. HOUSING CO-OPERATIVE SOCIETY LTD.
            TRIPURA ROAD
             KHANAPARA
             GHY- 22
             REP. BY ITS SECY

Advocate for the Petitioner   : MR.D CHOUDHURY

Advocate for the Respondent : MR.A KHANIKAR

Page No.# 2/6

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

Date of hearing : 05.10.2023.

Date of judgment :      05.10.2023.


                             JUDGMENT & ORDER (Oral)

Heard Mr. D. Choudhury learned counsel appearing for the writ petitioner. Also

heard Mr. A. Khanikar, learned counsel appearing on behalf of the respondents, who

submits that since the brief was originally entrusted to his senior Late B. Kalita and

since the HUDCO has not responded to the request made by him seeking instruction

in the matter, he does not have any submission to make in this case.

2. The writ petitioner herein is the widow of Late Krishna Kanta Kalita, who had

availed a loan of Rs.1,46,500/- from the respondent No.3 Society for purchase of a

flat. Late Krishna Kanta Kalita was a shareholder in the respondent No.3 Housing

Society and therefore, had availed financial assistance from the respondent No.3 to

the extent indicated above for purchasing a flat. The respondent No.3 had obtained

financial loan from the respondent No.2 for onward disbursement to its shareholders

for the purpose of purchase of residential flats by the members of the Society. The

grievance of the petitioner is that although her husband had repaid the entire loan

amount with interest way back in the year 1994 and the "no dues certificate" was

also issued by the respondent No.3 in favour of her deceased husband on 28.10.1994,

the respondent Nos.1 and 2 are yet to issue the "no dues certificate" to her although Page No.# 3/6

the aforesaid fact has been duly intimated to the said authorities.

3. In support of the contentions made in the writ petition, Mr. Choudhury has

invited the attention of this Court to the "no dues certificate" issued by the

respondent No.3 in favour of the deceased husband of the petitioner on 28.10.1994

wherein, it has been categorically mentioned that Late Krishna Kanta Kalita i.e. the

husband of the writ petitioner had made full and final payment of his outstanding

HUDCO loan amount to the Society. The receipt of the said information was

acknowledged by the Assistant Finance Officer of HUDCO by the letter dated

12.06.1995 addressed to the Secretary of the respondent No.3 Society wherein,

certain additional information, regarding the Scheme number under which the flat

was allotted to Late Krishna Kanta Kalita and the loan amount sanctioned to him

including the date of final repayment, had been sought. On receipt of the aforesaid

communication dated 12.06.1995 the Secretary of the respondent No.3 Society had

duly furnished the requisite information on 25.07.1995 wherein it has been

categorically mentioned that the sum of Rs.1,46,500/-, including the balance dues of

Rs.40,195/- was realized from the shareholder, viz., Krishna Kanta Kalita vide Cheque

dated 03.11.1994. The Secretary of the respondent No.3 Society had also issued a

separate communication dated 26.07.1995 addressed to the Regional Chief of the

respondent No.2 intimating that the respondent No.3 would have no objection if "no

dues certificate" is issued to Krishna Kanta Kalita from their end. Notwithstanding the

same and despite having received all the communications from the respondent

No.3, no action was initiated by the respondent Nos.1 and 2 to issue the "no dues

certificate" to the petitioner or her deceased husband. Under the circumstances, the Page No.# 4/6

writ petitioner seeks a writ of mandamus directing the respondents to do the needful.

4. It appears from the materials on record that some of the shareholders of the

respondent No.3 Society had defaulted in repayment of the loan as a result of which,

the respondent No.2 had instituted a proceeding numbered and registered as O.A.

No.182/1997 before the Debts Recovery Tribunal, Guwahati at Ulubari praying for

issuance of a Certificate of Recovery against the respondent No.3 and its Chairman

and Secretary. By the judgment dated 08.05.2003 the aforesaid Original Application

was allowed whereby, Certificate of Recovery was issued in connection with O.A.

No.182/1997 for an amount of Rs.1,40,14,309/- to be jointly recovered from all the

three defendant in the O.A. In the aforesaid order it was further clarified that the

Certificate of Recovery would exclude those flat owners in respect of whom the

Housing Society had already issued "no dues certificate".

5. By filing a joint counter-affidavit the respondent Nos.1 and 2 have admitted

that the respondent No.3 had recommended issuance of "no dues certificate" in

favour of the deceased husband of the petitioner. However, since the husband of

the petitioner had not made direct repayment of loan to the HUDCO, "no dues

certificate" could not be issued.

6. It is to be noted herein that it is the admitted position of fact that the

deceased husband of the petitioner had taken the loan from the respondent No.3

and not from the respondent Nos.1 and 2. Therefore, if the reason furnished by the

respondent Nos.1 and 2 in the counter-affidavit is to be accepted, then what would

logically follow is that since the petitioner's husband did not avail any loan directly Page No.# 5/6

from the respondent Nos.1 and 2 hence, the said respondents also cannot have any

claim against the petitioner or her deceased husband pertaining to the loan amount

or the flat purchased by availing the loan. It is not the stand of the respondents that

any amount is individually due either from the writ petitioner or on account of her

deceased husband. If that be so, considering the fact that the respondent No.3

Society has already issued a "no dues certificate" to the petitioner and had also

intimated the said fact to the respondent Nos.1 and 2, there can be no doubt about

the fact that the petitioner would not have any liability at this point of time pertaining

to the loan availed by her deceased husband. In other words, regardless of whether

"no dues certificate" is issued by the respondent Nos.1 and 2 or not, in view of the

certificate issued by the respondent No.3 Society and considering the stand taken by

the respondent Nos.1 and 2 in the counter-affidavit, the question of respondent Nos.1

and 2 having any future claim against the petitioner in respect of the loan amount of

Rs.1,46,500/- would not arise in the eyes of law. The said position stands further fortified

in view of the specific observations made by the learned Debts Recovery Tribunal in

the Judgment and Order dated 08.05.2003 passed in O.A. No.182/1997.

7. For the reasons stated herein above, this writ petition succeeds and is hereby

allowed. The writ petition is disposed of by clarifying that pursuant to the repayment

of the loan amount to the respondent No.3, no future claim by the respondent Nos.1,

2 and 3 against the petitioner pertaining to the aforesaid loan amount would be

maintainable under the law, regardless of whether the "no dues certificate" is issued

by the respondent Nos.1 and 2 or not. In other words, the liability of the writ petitioner

pertaining to the loan in question shall be deemed to have been fully discharged Page No.# 6/6

upon repayment of the loan by her husband to the respondent No.3.

The writ petition stands closed.

JUDGE

T U Choudhury/Sr.PS

Comparing Assistant