Smt. Prema Devi vs The Central Bank Of India, Through ...
2022 Latest Caselaw 3271 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.7241 of 2017
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Smt. Prema Devi, W/o Shiv Chandra Prasad @ Rai Jee, Mohalla-Badi Mirjapur, P.S.- Kasim Bazar, P.O. + District- Munger.

... ... Petitioner Versus

1. The Central Bank of India, through the Regional Manager, Gaya Region , Shanti Bhavan, Rameshwar Path, opposite Bisar Talab (Tank), District- Gaya, Pin-823001.

2. The Regional Manager, the Central Bank of India, Gaya Regional Branch, Shanti Bhavan, Rameshwar Path, opposite Bisar Talab (Tank), District- Gaya, Pin-823001.

3. The Authorised Officer, the Central Bank of India, Gaya Regional Branch, Shanti Bhavan, Rameshwar Path, opposite Bisar Talab (Tank), District- Gaya, Pin-823001.

4. The Branch Manager, Central Bank of India, Munger Branch, Bari Bazar, P.B. No.23, Pin- 811201, District-Munger.

5. Sri Rajani Kant Mishra, S/o Jagdamba Prasad Mishra, Lakarigola Bekapur, Munger, Pin- 811201, presently residing at Puraniganj, Konark Talkies Road, Opposite Sanjivani Hospital, P.S.- Kasim Bazar, Munger, District- Munger.

6. The State of Bihar through the District Magistrate, District- Munger.

7. The Sub Divisional Magistrate, Sadar, District- Munger.

... ... Respondents ====================================================== Appearance :

For the Petitioner : Mr. Purushottan Kumar Jha, Advocate For the Respondents-State: Mr. Anil Kumar Singh, GP-26 For the Central Bank : Mr. Ajay Kumar Sinha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE DR. ANSHUMAN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH) Date : 27-06-2022

Heard Mr. Purushottam Kumar Jha, learned

counsel for the petitioner and Mr. Ajay Kumar Sinha, learned

counsel for the respondent-Central Bank of India. Mr. Anil

Kumar Singh, learned GP-26 is also present for the State. Patna High Court CWJC No.7241 of 2017 dt.27-06-2022

2. The prayers of the petitioner in the present

application are as under:-

"(i) For issuance of an order / direction or a writ in nature of certiorari for quashing the sale certificate dated 10.09.2013 issued under the signature of the Authorized Officer of the Respondent Bank, whereby and whereunder the only house of the petitioner has been auction sold at a throw away price below the reserve price.

(ii) For issuance of an order / direction or a writ in the nature of certiorari for quashing the order of SDM, Sadar, Munger, as contained in Memo No.2061 dated 09.02.2017 (Annexure-11), whereby the whereunder, he has been deputed the officers for dispossessing the petitioner from her only house at the instance of the respondent bank.

(iii) For issuance of an order / direction or a writ in nature of mandamus, commanding the respondents concerned of the Bank to allow the petitioner to sale the property in question as per her choice to enable her to repay the debt amount with a further direction to the respondent Bank authorities to accept the payment made by the petitioner towards repayment of her debts.

(iv) For issuance of an order / direction or a writ in the nature of certiorari for quashing the Patna High Court CWJC No.7241 of 2017 dt.27-06-2022

judgment dated 21.09.2016 (Annexure-7) passed by the presiding officer of the Debts Recovery Tribunal, Patna, whereby and whereunder S.A. No.85 of 2016, came to be dismissed, on the sole ground of delay / limitation.

(v) For issuance of an order / direction or a writ in the nature of mandamus directing the presiding officer of the Debts Recovery Tribunal, Patna to hear and decide case / matter of the petitioner on merits with full sympathy, keeping in mind the constraints of the petitioner as regards notices and lack of knowledge under the peculiar facts of the case.

(vi) For issuance of an order, direction for grant of any other relief or relief(s) to which the petitioner may be found entitled to in the facts and circumstances of this case."

3. In short, the case of the petitioner is that she and

her husband Shiv Chandra Prasad had jointly availed a housing

loan of Rs.2,76,000/- sanctioned on 20.01.2006 with repayment

term of 108 months from the Central Bank of India. Since her

husband was ailing with cancer, she moved to Mumbai along

with her daughter and stayed there continuously between 2010

and 2015. Subsequently, her daughter also fell ill and died on

account of some ailment. The death of her daughter created

acute mental shock and agony as a result of which she could not Patna High Court CWJC No.7241 of 2017 dt.27-06-2022

repay the loan amount in time. Subsequently, she came to know

that her house has been auction sold by the respondent Bank and

the respondent no. 5, the auction purchaser, is attempting to take

over the possession of the house.

4. Learned counsel for the petitioner submitted that as

soon as the petitioner came to know about the auction sale, she

filed her application on 22.07.2015 before the District

Magistrate, Munger through Public Grievance Redressal Cell,

Munger for staying the execution of delivery of her house to the

auction purchaser. He further contended that in response to the

application filed before the Public Grievance Redressal Cell,

Munger, the respondent-Bank filed its response on 27.07.2015.

He contended that subsequently the petitioner approached a

lawyer for the purpose of filing an application before the Debt

Recovery Tribunal under Section 17(1) of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 (for short 'SARFAESI Act'). The said

application was dismissed vide impugned order dated

21.09.2016 by the learned Presiding Officer of the Debt

Recovery Tribunal, Patna only on the ground of limitation.

5. Learned counsel for the petitioner further

contended that the learned Presiding Officer while dismissing Patna High Court CWJC No.7241 of 2017 dt.27-06-2022

the application of the petitioner did not consider the genuine

humanitarian and lawful ground and the hardship being faced by

the petitioner. He also failed to consider the plea of the

petitioner that she is ready to pay the debts due on her.

6. On the other hand, Mr. Ajay Kumar Sinha, learned

counsel for the respondent-Central Bank of India submitted that

since the petitioner defaulted in repayment of loan as also the

interest and had paid a meager amount of Rs.9,800/- only

between 18.04.2006 to 21.09.2011. The account was classified

as bad asset and demand notice under Section 13(2) dated

27.01.2012 was issued but when payment was not done by the

borrower, possession notice under Section 13(4) of the

SARFAESI Act dated 29.05.2012 was issued and thereafter

auction notice dated 05.02.2013 was issued for auction but no

bidder turned up. Thereafter again valuation was done on

27.02.2013 and, accordingly, a fresh reserve price was fixed at

Rs.6.80 lacs. A fresh sale notice was published on 22.06.2013

with reserve price of Rs.6.80 lacs. In the next sale process single

bidder Sri Rajanikant Mishra (respondent no.5) turned up and

the property was sold to him for Rs.6,90,000/- and on receipt of

the full price, the sale certificate was issued on 10.09.2013. He

contended that since the application filed by the petitioner was Patna High Court CWJC No.7241 of 2017 dt.27-06-2022

hopelessly time barred, the Debt Recovery Tribunal, Patna

dismissed the limitation petition filed on behalf of the petitioner.

He contended that there is no error in the impugned order

passed by the Presiding Officer of the Debt Recovery Tribunal,

Patna.

7. We have heard learned counsel for the parties and

carefully perused the record.

8. It would be evident from the impugned order

passed by the Debt Recovery Tribunal, Patna that the

application filed on behalf of the petitioner was time barred.

There was a delay of two and a half years in approaching before

the Tribunal. A perusal of the impugned order would suggest

that the petitioner had not explained the reason for the

inordinate delay caused in filing the application. In that view of

the matter, relying upon the judgment of the Hon'ble Supreme

Court in Basawaraj & Anr. Vs. The Special Land Acquisition

Officer since reported in (2013) 14 SCC 811, the Tribunal

dismissed the limitation application. Consequently, the

SARFAESI application was also dismissed.

9. At this stage, it would be apt to note that against

the order impugned passed by the Debt Recovery Tribunal, the

petitioner had a statutory remedy of appeal before the Debt Patna High Court CWJC No.7241 of 2017 dt.27-06-2022

Recovery Appellate Tribunal. The petitioner did not avail of the

statutory remedy available to her. Even otherwise, we see no

merit in this application.

10. In that view of the matter, we are not inclined to

entertain this application under extraordinary writ jurisdiction.

11. Accordingly, the application is dismissed.

(Ashwani Kumar Singh, J.)

(Dr. Anshuman, J.)

Sanjeet/-

AFR/NAFR                NAFR
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Uploading Date          30.06.2022
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