Bhagwati Lal vs State Bank Of India
2023 Latest Caselaw 4281 Raj

[2023/RJJD/013896]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6981/2022

Bhagwati Lal S/o Chouth Mal, Aged About 65 Years, Plot No.3, Meera Nagar, K.no.31, Hari Ashram Wali Gali, Near Sumangalam School, Village Basni Chohan, Near Airport, Jodhpur 342001 Through Power Of Attorney Holder Hukum Raj S/o Chouth Mal, Aged About 55 Years, R/o Plot No.3, Meera Nagar, K.no.31, Hari Ashram Wali Gali, Near Sumangalam School, Village Basni Chohan, Near Airport, Jodhpur 342001.

----Petitioner Versus State Bank Of India, Through The Authorized Officer, Having Stressed Assets Recovery Branch At 3Rd Floor, Matrix Mall, Sector-4, Jawahar Nagar, Jaipur-302004.

                                                                 ----Respondent


For Petitioner(s)         :     Mr. Ripudaman Singh
                                Mr. Love Rush Samer
For Respondent(s)         :     Mr. Jagdish Chandra Vyas
                                Mr. Hari Singh Rajpurohit

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 02/05/2023 Pronounced on 09/05/2023

1. This writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

"It is, therefore, respectfully prayed that this petition for writ may kindly be allowed and:- A. By an appropriate writ order or direction, order dated 27.01.2022 (Annex-11) may kindly be declared illegal and same may kindly be quashed and set aside. B. By an appropriate writ order or direction, the prayer of the application vide annex-9 filed before the Debts Recovery Tribunal Jaipur may kindly be allowed.

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C. Any other appropriate order which is deemed just and proper in the facts and circumstances of the case may kindly be also passed in favor of the petitioner."

2. Brief facts of the case, as placed before this Court by learned

counsel for the petitioner, are that in the month of July, 2015, the

petitioner took loan of Rs.9,20,960/-, from the respondent-Bank,

while mortgaging his residential property bearing Plot No.3, Meera

Nagar, K.No. 31, Hari Ashram Wali Gali, Sumangalam School,

Village Basni Chohan, Near Airport, Jodhpur, Rajasthan;

whereafter, he took further loan to the tune of Rs.5,14,000/- (as

addition top up).

2.1. The petitioner payment of the loan installments regularly

upto November, 2015, but thereafter, due to his deteriorating

medical condition, he could not pay the installments; the

onslaught of Covid-19 pandemic also adversely affected the

earnings of the petitioner; whereupon the officials of the

respondent-Bank visited the petitioner's house and took symbolic

possession thereof on 11.08.2020, and issued a notice under the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (hereinafter referred

to as 'Act of 2002') for due amount of Rs. 13,15,021.34/-; in

pursuance of the said notice, an amount of Rs. 9,00,000/- was

deposited with the respondent-Bank on 17.02.2021.

2.2. Subsequently, the respondent-Bank filed an application

before the learned Chief Metropolitan Magistrate, Jodhpur

Metropolitan, for physical possession and auction of the property

in question and also sought deployment of police force, to enable

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the respondent-Bank to do so. The learned Court below vide order

dated 18.12.2020 grant the aforesaid relief to the respondent-

Bank.

2.2.1 On 06.08.2021, the respondent-Bank took physical

possession of the property in question, and thereafter, the

petitioner received an information that on 24.09.2021, the E-

auction of the property in question shall be conducted by the

respondent-Bank.

2.3. Thereupon, the petitioner filed an application under Section

17 of the Act of 2002 and Security Interest (Enforcement), Rules

2002 (hereinafter referred to as 'Rules of 2002'), bearing Case No.

SA 256/2021 against the aforesaid action of the respondent-Bank

before the Debts Recovery Tribunal (DRT), Jaipur.

2.4. The learned DRT vide the impugned order dated 27.01.2022

dismissed the aforesaid SA, while observing that owing to the

default on the part of the petitioner, the respondent-Bank took all

the required steps for auctioning the property in question, and

thus, no illegality was committed by the respondent-Bank in

initiating such action.

2.5. Thus, aggrieved by the impugned order dated 27.01.2022

passed by the learned DRT, the present petition has been

preferred claiming the afore-quoted reliefs.

3. Learned counsel for the petitioner submitted that the

petitioner deposited the amount of Rs.9,00,000/- with the

respondent-Bank on 17.02.2021, but the respondent-Bank

exorbitantly calculated the outstanding amount, while adding

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certain charges, which, being wholly arbitrary and unreasonable,

cannot be sustained in the eye of law.

3.1. Learned counsel further submitted that the respondent-Bank,

in the present case, before initiating the auction proceedings in

regard to the property in question, did not serve the mandatory

notice, as provided under Rule 8 (6) of the Rules of 2002.

3.2. Learned counsel also submitted that due to Covid-19

pandemic, the petitioner's shop remained closed, and therefore,

he could not deposit the due amount of installment(s); but the

learned DRT, without considering the said aspect of the matter and

the material placed on record before it, passed the impugned

order, which is not justified under the law.

3.2.1. He further submitted that against the impugned action of

the respondent-Bank, the petitioner submitted a complaint before

the Police Station, Kudi Bhagtasni, Jodhpur, but the concerned

police authorities refused to register the FIR; whereupon, the

petitioner filed a complaint under Section 156 (3) Cr.P.C. before

the competent Court against the respondent-Bank, in regard to

the illegal auction proceedings in question.

4. On the other hand, learned counsel appearing on behalf of

the respondent-Bank, while opposing the aforesaid submissions

made on behalf of the petitioner, submitted that this petition is not

maintainable, because as per Section 18 of the Act of 2002, any

person aggrieved by any order passed by the learned DRT under

Section 17 of the Act of 2002, may prefer an appeal before the

Appellate Tribunal within a period of 30 days from the date of

passing of the order by the learned DRT; therefore, in view of

[2023/RJJD/013896] (5 of 7) [CW-6981/2022]

availability of such alternative remedy, the present petition

deserves dismissal.

4.1 In support of his submission, learned counsel relied upon the

judgment rendered by the Hon'ble Apex Court in the case of M/s

South Indian Bank Ltd. & Ors. Vs Naveen Mathew Philip &

Anr. (Civil Appeal Nos. of 2023 (arising out of SLP (Civil)

Nos. 22021-22022/2022), decided on 17.04.2023).

4.2. Learned counsel further submitted that in pursuance of the

impugned order dated 27.01.2022, the auction proceedings

already stood complete; the sale has already been confirmed by

the respondent-Bank and the requisite sale certificate has also

been duly issued by the authorized officer of the respondent-Bank

on 15.04.2022 in favour of the auction purchaser, namely, Shri

Surendra Das, and actual and physical possession of the secured

assets has also been handed over to the said auction purchaser.

Thus, as per learned counsel, in the said backdrop, nothing

survives to be adjudicated in the present matter.

5. Heard learned counsel for the parties as well as perused the

record of the case along with judgment cited at the Bar.

6. This Court observes that in the year 2015, the petitioner

obtained the loan (as housing loan facility) to the tune of

Rs.9,20,960/- and further obtained of Rs. 5,14,000/- (as

additional top up loan), from the respondent-Bank. The petitioner

deposited an amount of 9,00,000/- on 17.02.2021 with the

respondent-Bank.

6.1. Thereafter, owing to the defaults in question on the part of

the petitioner, and after passing of the impugned order by the

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learned DRT, dismissing the application moved by the petitioner,

the physical possession of the property was taken and the

property was put to auction for realizing the remaining

outstanding amount of loan, by the respondent-Bank, followed by

confirmation of the auction sale and issuance of the requisite sale

certificate in favour of the auction purchaser, by the respondent-

Bank.

7. This Court further observes that after deposition of the

aforesaid amount of Rs.9,00,000/- by the petitioner with the

respondent-Bank, no further requisite steps were ever taken by

the petitioner, to discharge the liability in question. Therefore, the

auction proceedings, as undertaken by the respondent-Bank, after

passing of the impugned order by the learned DRT, were justified

in law, more particularly, when the learned DRT, after taking into

due consideration the overall facts and circumstances of the case,

granted liberty to the respondent-Bank to initiate such

proceedings.

8. This Court also observes that as mentioned hereinabove, the

auction proceedings in question culminated into finality, and the

sale certificate issued by the authorized officer of the respondent-

Bank in favour of the auction purchaser has also been duly

registered in the office of Sub-Registrar (IV), Jodhpur on

19.04.2022.

9. This Court further observes that the possession of the

property in question was duly handed over to the auction

purchaser, and therefore, nothing is left in this case for

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adjudication, as the entire action taken by the respondent-Bank is

justified in law.

10. In light of the aforesaid observations and looking into the

factual matrix of the present case, this Court does not find it a fit

case so as to grant any relief to the petitioner in the present

petition.

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

applications stand disposed of.

(DR. PUSHPENDRA SINGH BHATI), J.

Skant/-

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