Harish Suhalka vs Union Bank Of India
2023 Latest Caselaw 1582 Raj

[2023/RJJD/004509]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2033/2023

1. Harish Suhalka S/o Shri Chaman Lal Suhalaka, Aged About 55 Years, 25, Maharaj Ka Akhada, Hiran Magri, Sector No. 11, Udaipur, Rajasthan.

2. Shakuntala Suhalka W/o Shri Chaman Lal Suhalaka, Aged About 73 Years, Maharaj Ka Akhada, Hiran Magri, Sector No. 11, Udaipur, Rajasthan.

----Petitioners Versus

1. Union Bank Of India, Udaipur Main Branch Opp. Town Hall, Panch Sheel Marg, Udaipur, Rajasthan Through Its Authorized Officer.

2. Aakash Chandra (Bank Manager), Udaipur Main Branch Opp. Town Hall, Panch Sheel Marg, Udaipur, Rajasthan Through Its Authorized Officer.

3. Bhavar Lal Teli, House No. 142-D, Central Area, Reti Stand.

----Respondents

For Petitioner(s) : Mr. Harish Suhalka, petitioner No.1 present in person.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

Reserved on 08/02/2023 Pronounced on 09/02/2023

1. This civil writ petition has been preferred claiming the

following reliefs:

"(i) That the auction notice dated 2.12.2022 (Annex.14) and auction proceeding 21.01.22 and possession notice dated 21.1.2023 is illegal and required strict action and liable to be quashed and set aside.

(ii) That the auction dated 21.12.2022 may kindly be cancelled for petitioner property and respondent may be directed not to proceed for sale finalization of the

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subject property and asset should be restored in favour of the petitioner and maintain status quo during the pendency of the matter till the final decision.

(iii) Possession notice dated 21.01.2023, may kindly be stayed and cancelled and during the pendency of the matter no coercive action should be taken against the property of the petitioner.

(iv) The Respondents may be directed to regularize the petitioner account and take out of NPA by accepting the overdue amount and continue the account or reschedule the loan account for entire appropriate unpaid amount and may proceed for final settlement of the petitioner loan account as Hon'ble Court deems just appropriate.

(v) That the Respondent may be directed to bear the legal expenses because of the unethical harassment of the petitioner.

(vi) Any other order or direction which this Hon'ble Court may kindly be passed."

2. As the pleaded facts and the record would reveal, the

petitioner No.1 (henceforth referred to as 'the petitioner'), in

connection with his business needs, availed loan facilities from the

respondent-Bank; such loans, as per the petitioner, were duly

repaid by him.

3. In the month of July 2009, the petitioner was sanctioned and

advanced a term loan, to the tune of Rs.15,80,000/-, by the

respondent-Bank, for the petitioner's business requirements; the

petitioner duly adhered to the terms and conditions, mentioned in

the agreement pertaining to the said loan, and had made timely

repayment of the loan installments. However, thereafter, due to

certain adverse market conditions, the petitioner was not able to

[2023/RJJD/004509] (3 of 8) [CW-2033/2023]

deposit some amount in the concerned bank account, whereupon

the respondent-Bank informed the petitioner that his account is

going to be classified as NPA; the petitioner immediately

approached the Manager of the respondent-Bank, and deposited

the amount of Rs.1,43,327/- and Rs.36,673/- on 17.07.2019;

whereafter, the petitioner was informed by the respondent-Bank

that since the overdue amount has been deposited, the account of

the petitioner shall be regularized.

4. On 17.10.2019, when the petitioner visited the respondent-

Bank to deposit an amount of Rs.70,000/- in the loan account, the

then Bank Manager did not permit the petitioner to do so, while

asking the petitioner to deposit the entire outstanding amount.

Thereafter, in the month of January 2020, the petitioner arranged

some more funds and visited the respondent-Bank with a request

to permit him to deposit the overdue amount in the loan account,

but the Bank Manager refused to permit the petitioner to do so

and asked the petitioner to repay the entire outstanding amount

of loan.

5. The petitioner further averred that thereafter, on account of

onslaught of Covid-19 pandemic, complete lock down was

declared by the government, and accordingly, all the business

activities were closed down; owing to such onslaught, vide

circulars dated 27.03.2020, 17.04.2020 and 22.05.2020 issued by

the Reserve Bank of India, the asset classification norms were

redefined and a direction was given to all the Banks for extending

sympathetic treatment, like extension of moratorium facility etc.,

to the borrowers of the loan(s).

[2023/RJJD/004509] (4 of 8) [CW-2033/2023]

6. However, despite the above, the respondent-Bank issued a

notice dated 08.11.2019 under Section 13(2) of the Securitisation

and Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002 (hereinafter referred to as 'Act of

2002') (as amended from time to time), purporting to compel the

petitioner to deposit a sum of Rs.16,23,044.51, within a period of

60 days from the date of issuance of the said notice; however,

such notice was not served upon the petitioner.

7. On 29.07.2020, the respondent-Bank issued and sent

another notice under Section 13(4) of the Act of 2002 stating

therein that the respondent-Bank has taken possession of the

property land and building, which belonged to the petitioner,

comprising plot No.04 Reti Stand, near Sub City Centre, Central

Area, Udaipur admeasuring 600 square feet, without duly

following the legal and mandatory requirement of publication of

such notice in two daily newspapers, having wide circulation in the

area concerned.

8. The respondent-Bank thereafter instituted a suit for recovery

against the petitioner, before the learned Commercial Court,

Udaipur seeking to recover an amount of Rs.17,92,769/- from the

petitioner, wherein summon for mediation was issued.

9. The petitioner further averred in the petition that despite the

aforesaid, the respondent-Bank, in collusion with the local

property dealers, was adamant to sell the property of the

petitioner at a much lower price, so as to cause grave financial

loss to the petitioner.

10. Thereafter, the respondent-Bank also issued an auction

notice dated 11.01.2021, purporting to subject the property of the

[2023/RJJD/004509] (5 of 8) [CW-2033/2023]

petitioner to auction on 18.02.2021 for a meagre reserve price of

Rs.57,24,000/-, despite the current market price of the subject

property being more than rupees one crore.

11. The petitioner aggrieved by the inaction of the respondent-

Bank filed an appeal, on 12.02.2021, before the learned Debt

Recovery Tribunal (DRT), Jaipur alongwith a request of stay, but

the learned DRT posted the matter on 24.03.2021. However, in

the meanwhile, the respondent-Bank vide another auction notice

dated 20.02.2021, rescheduled the date of auction to 18.03.2021.

11.1 The petitioner filed an IA on 11.03.2021 seeking stay of the

auction dated 18.03.2021, and again on 18.03.2021, the learned

DRT posted the matter on 23.03.2021. However, on 23.03.2021,

the learned DRT, on the submission of the respondent-Bank,

ordered that since no bid was received, therefore, the IA has

become infructuous.

11.2.The respondent-Bank, while taking advantage of the

situation, issued another notice dated 24.03.2021 of auction and

the date of auction was fixed as 19.04.2021

12. In the aforesaid backdrop, as per the petitioner, he has made

several representations/ requests before the respondent-Bank and

other appropriate authorities/forums, but even such endeavours of

the petitioner were failed, and therefore, the present petition has

been preferred before this Hon'ble Court, claiming the

aforementioned reliefs.

13. The petitioner present in person submitted that apart from

the aforementioned sincere endeavours on his part, he has also

requested the respondent-Bank, to permit him to execute a rent

agreement for his shop, so as to enable him to receive rent

[2023/RJJD/004509] (6 of 8) [CW-2033/2023]

therefrom, and such entire rent shall be deposited in the loan

account of the petitioner, but such request was also denied by the

respondent-Bank, while impressing upon deposition of the entire

outstanding due amount of loan. As per the petitioner present in

person, in the said series of inaction, the respondent-Bank also did

not adhere to their obligation to take the account of the petitioner,

out of the NPA, in view of the fact that at the relevant time, the

petitioner has deposited the overdue amount.

14. The petitioner present in person further submitted that

except the property in question, the petitioner has no other

property to earn livelihood and to extend financial support to his

family.

15. The petitioner present in person thus submitted that the

respondent-Bank has taken the impugned actions only with a view

to auction the property of the petitioner, that too, while keeping a

very meagre sum, as a reserve price.

16. The petitioner present in person, thus concluded his

arguments by submitting the inaction on the part of the

respondents is clearly unsustainable in the eye of law, being

suffering from malafide, so as to harass the petitioner.

17. The petitioner present in person relied upon the judgment

rendered by the Hon'ble High Court of Kerala at Ernakulam in the

case of E.K. Rajan Vs. The Authorized Officer, Canara Bank

(WP (C) 27485/2021, decided on 18.05.2022).

18. Heard the petitioner present in person and perused the

judgment cited by him.

19. This Court finds that there is a clear default on the part of

the petitioner in making the repayment of complete outstanding

[2023/RJJD/004509] (7 of 8) [CW-2033/2023]

amount of loan obtained by him from the respondent-Bank.

Furthermore, the remedy, as availed by him, in the given factual

matrix, against the invocation and applicability of the Act of 2002,

is not an appropriate remedy.

19.1 However, yesterday i.e. on 07.02.2023, when the case was

being argued, this Court put a specific and pertinent query to the

learned counsel for the petitioner appearing on that date, as to

whether the petitioner is in a position and willing & ready to repay

the complete due amount of loan, to which, learned counsel, while

seeking time to obtain instructions, prayed for the matter to be

listed today i.e. 08.02.2023.

19.2 The petitioner present in person today i.e. 08.02.2023 before

this Court clearly shows his inability to repay the entire due

amount of loan, as advanced to him by the respondent-Bank.

20. This Court is thus of the opinion that though the petitioner

has made several efforts, including several representations etc.,

but as observed above, none of the remedies were appropriate so

as to effectively enable the petitioner to thwart the invocation and

applicability of the Act of 2002 in the present case; furthermore,

instead of doing so, the petitioner ought to have made sincere

efforts to repay the entire outstanding loan amount, but he clearly

failed to do so. Today i.e. 08.03.2023 also, when such an

opportunity, at the time of hearing of the petition, was given to

the petitioner by this Court, so as to enable him to get the

appropriate relief from this Court and to set at rest the entire

controversy, he failed to avail the same, while showing his inability

to repay the complete due amount of loan to the respondent-

Bank.

[2023/RJJD/004509] (8 of 8) [CW-2033/2023]

21. This Court also observes that the petitioner has alleged,

amongst others, malafide on the part of the respondent-Bank, but

he clearly failed to prove the same, and in absence of any proof in

that regard, as per the settled legal proposition, he is not entitled

to get the relief, as prayed for, in this petition.

22. This Court further observes that once the petitioner has

taken loan from the respondent-Bank, he was under a legal

obligation to repay the same in time, while duly adhering to the

terms and conditions mentioned in the loan agreement, but the

petitioner also did not do so. Thus, in view of a clear default on

the part of the petitioner himself, he is not entitled for the relief

prayed for in the present petition.

23. Thus, looking to the overall facts and circumstances of the

case and the material available on record, more particularly,

keeping in view, the inability of the petitioner to repay the entire

outstanding amount of loan, this Court is of the firm opinion that

at this stage, no case for making any interference by this Court is

made out.

24. The judgment cited by the petitioner present in person does

not render any assistance to his case.

25. Consequently, the present petition is dismissed. All pending

applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI),J SKant/-

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