Rajasthan High Court - Jodhpur

Smt. Satyawati Gehlot vs State Bank Of India ... on 27 April, 2023

Bench: Nupur Bhati

[2023/RJJD/012441]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10953/2021

Smt. Satyawati Gehlot W/o Shri Shivratan Gehlot, Aged About 60 Years, By Caste Gehlot, Resident Of Gali No. 3, Indra Chowk, Nai Line, Gangashahar, Bikaner.

----Petitioner Versus

1. State Bank Of India, Corporate Office At - Madam Cama Road, Nariman Point, Mumbai - 400021, Through Its General Manager.

2. Additional General Manager, State Bank Of India, RASMECC, C-25, Samta Nagar, Ganganagar Road, Near O.D. Motors, Bikaner.

3. State Bank Of India, Branch Bikaner City, Purohit House, Joshiwara, Bikaner.

                                                                  ----Respondents


For Petitioner(s)           :    Mr. Pushkar Temny
For Respondent(s)           :    Mr. Deepak Vyas


               HON'BLE DR. JUSTICE NUPUR BHATI
                                      Order

27/04/2023

1. The writ petition has been filed under Article 226 of the

Constitution of India with the following prayers:-

"(i) The declaration of the petitioner's loan account as Non Performing Assets (NPA) by the respondent bank may kindly be declared illegal and be quashed and set aside.

(ii) The notice dated 01.07.2021 (Annexure-8) issued under Section 13(2) of the Act of 2002 issued by the respondent bank may also kindly be quashed and set aside.

(iii) The respondent bank may kindly be directed to reconsider the petitioner's application for restructuring of loan account under its policy dated

[2023/RJJD/012441] (2 of 7) [CW-10953/2021]

01.09.2020 (Annexure-6) considering the loan account as regular account.

(iv) Any other appropriate order or direction, which may be deemed just and proper may kindly be passed in favour of the petitioner."

2. Brief facts of the case are that the petitioner had applied for

a home term loan facility with the respondent bank which was

sanctioned on 26.10.2016 for a loan amount of Rs. 40,00,000/-

for the residential plot situated at Dhoron ka Bas, Ward No.5,

Kumharon ka Mohalla, Bikaner ad measuring 371 square yards in

the name of Shivratan Gehlot. The husband of the petitioner was

pledged as collateral security for securing the aforementioned

home term loan facility. The amount of Rs. 40 lacs was

sanctioned on 26.10.2016 and the same was debited to the loan

account of the petitioner on 01.11.2016 and the installments

were started from December, 2016, the petitioner has regularly

paid the installments to the tune of Rs.43,500/-. The petitioner

has regularly deposited the installments of the loan account and

Rs.5,22,000/- against the 12 installments were deposited till

2018, 2019 and in January, February and March, 2020. On

account of Covid pandemic-2019 in March, 2020 there was a

complete lockdown enforced by the State Government and on

account of the same, the repayment of the monthly installments

was also exempted to those loanee who were industrialists on

account of stoppage of business activity and who were not in a

position to make payments, such exemption was granted from

March 2020 to August, 2020 for a period of six months as per the

[2023/RJJD/012441] (3 of 7) [CW-10953/2021]

RBI guidelines. A policy was issued by the respondent bank on

01.09.2020 for Covid-19 related stress framed on the basis of

policy statement issued by RBI on dated 06.08.2020. Thereafter,

the petitioner was advised to make application for availing the

benefit of this policy for restructuring her loan and accordingly,

the petitioner submitted an application with the deposition of Rs.

20,000/- in the loan account of the respondent bank. The

respondent bank officials assured that restructuring of her loan

would be done as soon as approval was received. Thereafter, the

respondent bank asked the petitioner to deposit some more

amount as the approval was not received and the petitioner

deposited some more amount with the respondent bank. The

respondent bank informed the petitioner on 22.01.2021 that as

two installments were due uptill February, 2020 therefore, the

petitioner could not be given the benefit of the policy for

restructuring of the loan account. The petitioner thereafter, again

approached the respondent bank on 15.02.2021 for extending

her the benefit of the policy for restructuring of the loan account

however, the respondent bank refused and warned them that the

due amount be deposited uptill 25.02.2021 or else the loan

amount would be declared as Non Performing Assets (NPA). The

petitioner being aggrieved of the same, preferred an application

under Section 22-B of the Legal Services Authority Act, 1987. A

reply was filed by respondent bank denying all the averments in

it. The Permanent Lok Adalat, Bikaner had disposed of the

application vide order dated 23.02.2021 treating it as not

maintainable as the relief claim could not be granted by the

[2023/RJJD/012441] (4 of 7) [CW-10953/2021]

Permanent Lok Adalat however, the respondent bank was directed

to place the application before the higher authorities. During the

pendency of the application before the Permanent Lok Adalat, the

loan account was declared as NPA on 25.02.2021 and notice

under Section 13(2) of the Securitization and Reconstruction of

Financial Assets and Enforcement of Security Interest Act, 2002

(hereinafter referred as Act of 2002) was issued on 01.07.2021

demanding Rs.37,25,570/- as on 01.07.2021 (inclusive interest

up to 30.06.2021) which had to be deposited within a period of

60 days from the date of receipt of the notice. The petitioner

being aggrieved of the same, has preferred the writ petition.

3. Learned counsel for the petitioner fairly accepts that the

prayer No.1 and 2 of the writ petition have become infructuous

and submits that prayer No.3 i.e. "The respondent bank may

kindly be directed to reconsider the petitioner's application for

restructuring of loan account under its policy dated 01.09.2020

(Annexure-6) considering the loan account as regular account."

still survives.

4. Learned counsel for the respondent submits that the

petitioner cannot press the prayer No.3 before this Court while

invoking the writ jurisdiction under Article 226 of the Constitution

of India while placing reliance upon the judgment of Hon'ble Apex

Court in the case of M/S South Indian Bank Ltd. & Ors. Vs.

Naveen Mathew Philip & Anr. and the relevant portion of the

judgment is reproduced as under:

"13. In view of the fair stand taken by the learned Senior Counsel appearing for the appellant, we do

[2023/RJJD/012441] (5 of 7) [CW-10953/2021]

not wish to interfere with the impugned orders passed. We may, however, reiterate the settled position of law on the interference of the High Court invoking Article 226 of the Constitution of India in commercial matters, where an effective and efficacious alternative forum has been constituted through a statute. We are also constrained to take judicial notice of the fact that certain High Courts continue to interfere in such matters, leading to a regular supply of cases before this Court. One such High Court is that of Punjab and Haryana."

5. He further places reliance upon the another judgment of

Hon'ble Apex Court in the case of Varimadugu Obi Reddy Vs. B.

Sreenivasulu and its relevant part of the judgment is reproduced

as under:

"36 In the instant case, although the respondent borrowers initially approached the Debts Recovery Tribunal by filing an application under Section 17 of the SARFAESI Act, 2002, but the order of the Tribunal indeed was appealable under Section 18 of the Act subject to the compliance of condition of pre-deposit and without exhausting the statutory remedy of appeal, the respondent borrowers approached the High Court by filing the writ application under Article 226 of the Constitution. We deprecate such practice of entertaining the writ application by the High Court in exercise of jurisdiction under Article 226 of the Constitution without exhausting the alternative statutory remedy available under the law. This circuitous route appears to have been adopted to avoid the condition of predeposit contemplated under 2nd proviso to Section 18 of the 2002 Act."

6. Learned counsel for the respondent also draws attention of

this Court towards application (I/A No.01/23) filed by the

[2023/RJJD/012441] (6 of 7) [CW-10953/2021]

petitioner for placing on record the latest account statement and

for issuing further direction to respondent to extend the benefit

under the policy on resolution framework for Covid-19 related

stress, in which the petitioner herself has stated that the prayer

No.1 and 2 mentioned in the writ petition have become irrelevant

in light of subsequent event mentioned in the para 6 of the

application, which is reproduced as under"

"That the prayer qua the setting aside of declaration of the loan account as NPA and quashing of notice dated 01.07.2021 is concerned, both have now became irrelevant in light of subsequent event as the majority of the outstanding amount has already been deposited by the petitioner."

7. Learned counsel for the petitioner further submits that the

respondents are under the obligation to extend the benefit of the

policy dated 01.09.2020 while taking into consideration that on

account of pandemic of Covid-19, the petitioner was not in a

position to repay the loan amount and therefore, respondents

were under the obligation to extend her the benefit of

restructuring of the loan account in light of the policy dated

01.09.2020.

8. Learned counsel for the respondents objects to the same

and submits that the statutory remedy is available to the

petitioner under the Act of 2002 & therefore, the petitioner

cannot invoke writ jurisdiction under Article 226 of the