Gujarat High Court
Kusumben @ Kamlaben Wd/O ... vs The Manager, Indian Bank on 1 February, 2021
Bench: Vaibhavi D. Nanavati
C/SCA/50/2021 ORDER
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/SPECIALCIVILAPPLICATIONNO. 50 of 2021
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[email protected] KAMLABENWD/OJITENDRABHAIJOSHI
Versus
THEMANAGER,INDIANBANK
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Appearance:
MRMAKBULI MANSURI(2694)for the Petitioner(s)No. 1,2
NOTICESERVED(4)for the Respondent(s)No. 1,2
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date: 01/02/2021
ORALORDER
1. This petition filed by the petitioners under Articles 226 and 227 of
the Constitution of India seeks the following reliefs :-
"(A) This Hon'ble Court may be pleased to quash and set
aside the order dated 16/09/2020 passed below Misc. Civil
Application No.189 of 2020 in MACP No.1007/2008 passed
by the learned Motor Accident Claims Tribunal (Auxi.),
Sabarkantha District at Idar and further may be pleased to to
permit the petitioner to withdrawal of amount of Fixed Deposit
receipts No.0847361 and 0847219 deposited in Indian Bank,
Himmatnagar Branch, District Sabarkantha in interest of
justice and equity.
(B) This Hon'ble Court may be pleased to grant such other
and further relief/s as may be deemed fit, just and proper in
the facts and circumstances of the case, in the interest of
justice."
2. Learned Advocate Mr. Makbul I. Mansuri for the petitioners has
submitted that the petitioners had submitted a Claim Petition, i.e.
MACP No.1007/2008 and the same was partly allowed by a
judgment and order dated 25.05.2018. As per the judgment and
award, the respondents were liable to pay compensation and the
C/SCA/50/2021 ORDER
Tribunal permitted 35% withdrawal and 65% in fixed deposit for
five years.
3. The awarded amount as determined by the Tribunal was
deposited by the Insurance Company before the Tribunal and the
Tribunal apportioned and permitted disbursement of the amount
as per the judgment and award. It is further submitted that the
learned Tribunal ordered 65% amount in two Fixed Deposit
Receipts. The petitioners preferred an application for withdrawal
of the amount from FDR No.0847218 and the same was partly
allowed and the Tribunal permitted Rs.3,00,000/- to be withdrawn
on 06.12.2018. The remaining amount is deposited in FDR's with
the respondent Bank being FDR Nos.0847361, 0847219 and
0847855. The petitioners approached the Tribunal by way of
Misc. Civil Application No.1007/2020 for withdrawal of FDR
No.0847361. It is submitted by learned Advocate for the
petitioners that the above amount is required for payment of
home loan.
4. The petitioners have entered into an Agreement to Sale and
which was executed on 12.03.2020 and the petitioners are in
need of the said amount for payment of the loan. Alongwith the
application, the papers of the Agreement dated 12.03.2020 were
also produced by the petitioners. However, the learned Tribunal
rejected the application mainly on two grounds that (i) the
petitioners have not produced the Sale Deed and (ii) there is no
loan amount pending on the name of the petitioners.
5. Heard learned Advocate Mr. Makbul I. Mansuri for the petitioners.
Though served, none appear for the respondents. The Court
has gone through the documents produced on record.
C/SCA/50/2021 ORDER
6. Learned Advocate for the petitioners has produced the
Agreement to Sale dated 12.03.2020 before this Court wherein it
is stated that the purchaser has paid Rs.2,50,000/- to the seller
for the aforesaid house on 02/11/2018 and the petitioners are
required to pay amount of Rs.7,461/- per month in favour of
'Cholamandalam Finance Limited, Motipura, Himmatnagar'
regularly on 5th of every month towards the housing loan. The
tenure of aforesaid loan is 18 years.
7. A perusal of the averments canvassed before the learned
Tribunal would indicate that the petitioner No.1 had purchased
the house at the price of Rs.8,50,000/- from one Basiraben
Haidarbhai Khanusiya and paid Rs.2,50,000/- from Rs.3,00,000/-
received from the above fixed deposit amount and took over the
possession of the house and got the repairing work completed
and executed the earnest money deed by availing the loan from
Chola Mandalam Finance Ltd., for the tenure of 18 years with the
liability to pay Rs.7461/- per month. It is also averred therein that
the petitioner No.1 is a widow and the elder son is also trying to
find a job. Under such circumstances, it is averred that the
petitioners are unable to pay the installments of the housing loan
and therefore, desire to make full payment of the sale price of the
above house by depositing the same in the housing loan account
after withdrawing Rs.3,24,657/- from the fixed deposit account
opened in the Indian Bank, Himmatnagar Branch vide receipt
No.0847361 dated: 10/12/2018 in the name of the petitioner No.1
and Rs.1,86,407/- from the fixed deposit account opened vide
receipt No.0847219 dated: 22/10/2018 in the name of petitioner
No.2 for the period of five years.
C/SCA/50/2021 ORDER
8. From the aforesaid submissions and as the petitioners require the
amount pursuant to the Agreement to Sale for payment of the
housing loan, therefore, the impugned order dated 16.09.2020
passed by the M.A.C.T. (Auxiliary), Sabarkantha at Idar is
quashed and set aside. The learned Tribunal is directed to
consider the application filed by the petitioners for withdrawal of
the amount in Fixed Deposit Receipts No.0847361 and 0847219
deposited in Indian Bank, Himmatnagar Branch, District
Sabarkantha, in accordance with law after proper verification
within a period of three months.
9. The petition is partly allowed in the aforesaid terms.
Sd/-
(VAIBHAVID. NANAVATI,J)
CAROLINE
