State Bank Of India vs Smt. Mousumi Dhar (Datta)
2021 Latest Caselaw 992 Tri

                              Page 1 of 24




                    HIGH COURT OF TRIPURA
                          AGARTALA

                       Cont.Cas(C) No.77/2020

1. STATE BANK OF INDIA, Represented by the Regional Manager (S.E),
Regional Business Office-II, RMEE Cell, Sakuntala Road Extension,
Agartala, West Tripura, Pin-799001.
2. THE RELATIONSHIP MANAGER (SE), Regional Business Office-II,
Palace Compound, Jagannath Bari Road, Agartala, West Tripura, Pin-
799001.
3. THE RELATIONSHIP MANAGER (SE), Regional Business Office-II,
RMEE Cell, Sakantala Road Extension, West Tripura, Pin-799001.
4. THE BRANCH MANAGER, State Bank of India, Assam Rifles Branch,
Near Governor House, P.O - Kunjaban, Agartala, West Tripura, Pin-799006.
5. THE AUTHORISED OFFICER, State Bank of India, Assam Rifles
Branch, Near Governor House, P.O - Kunjaban, Agartala, West Tripura,
Pin-799006.
                                                     ----Petitioner(s)
                                 Versus
1. SMT. Mousumi Dhar (Datta), W/O - Sri Rabindra Datta, Proprietor of:-
Datta Beej Bhandar, Residence of Buddha Mandir, Near Mahanam Medical
Hall, P.O-Abhaynagar, Agartala West Tripura.
2. Sri Rabindra Datta, S/O. Lt. Rajendra Mohan Datta, Residence of
Buddha Mandir, Near Mahanam Medical Hall, P.O-Abhoynagar, Agartala
West Tripura.
                                                 -----Respondent(s)

For Petitioner(s) : Mr. Somik Deb, Sr. Advocate, Mr. Prabir Saha, Advocate, Mrs. Riya Chakraborty, Advocate.

For Respondent(s) : Mr. Rajib Saha, Advocate.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE ARINDAM LODH

Date of hearing and judgment : 29th September, 2021.

       Whether fit for reporting         : NO.

                       JUDGMENT & ORDER (ORAL)

(Akil Kureshi, C.J.)

The respondents- alleged contemnors had obtained loan of a

sum of Rs.3 crores from the petitioner State Bank of India in the year 2015.

Respondent No.1 was the principal borrower. Respondent No.2, her

husband, was a guarantor. By way of security the respondents had offered

their immovable properties on which security interest was created. The

borrowers could not repay the installments as per agreed terms, upon which

the Bank issued notice under Section 13(2) of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Securities Interest

Act, 2002 (SARFAESI Act, for short) on 13.5.2019 requiring the borrowers

to repay a sum of Rs.2.65 crores (rounded off) which was due and payable

as on 01.05.2019 failing which the Bank would take further steps. Since no

payment came through, the Bank issued notice of taking symbolic

possession in terms of Section 13(4) of the SARFAESI Act on 06.08.2019.

2. At that stage the respondents approached this Court by filing

WP(C) No.1173 of 2019 on or around 16.09.2019 and challenged the Bank

action. On 30.09.2019 the Division Bench of this Court noted the offer of

the respondent No.1, the principal borrower, to repay the entire dues of the

Bank on or before 31.03.2020. The order reads as under:

"Petitioner through counsel states that she is ready and willing to furnish an undertaking to this court of repaying the entire amount along with interest on or before 31st March, 2020. However, in the interregnum, she be allowed to sell her property and/or she be permitted to carry out the business there from. Also deal with the property/assets in the manner she deems best to be in her interest.

Also she is ready and willing to furnish an undertaking before this Court that in the event of breach of any one of the directions issued by this Court, she shall be liable for all actions, including initiation of proceedings for contempt, under the provisions of Contempt of Courts Act.

In view of the same, learned counsel Mr. Saha states that as on date the petitioner has to pay a sum more than Rs. 2.68 Crores and thus, he seeks instruction.

Copy of the order be supplied to the learned counsel Mr. Saha, by way of Dasti.

List the matter on 01.10.2019."

3. On 01.10.2019 the Division Bench recorded the Bank's

acceptance of the offer of the respondents to pay the dues in installments.

This order reads as under:

"Sri Manish Avasti, Branch Manager, Assam Rifles Branch, State Bank of India and Sri Dipak Kumar, RM(SME), RZO-11, Agartala (N) are present in the Court.

The offer made by the petitioners of making good the entire amount of Rs.2.68 Crores along with interest, in installments is acceptable by them. Let the petitioners file their undertakings by way of an affidavit by the next date.

Mr. P. Saha, learned counsel appears on behalf of the respondents. His name be reflected in the cause list.

List the matter on 03.10.2019. On that day, the petitioners shall remain present in person before this Court."

4. On 02.10.2019 both the respondents herein-original petitioners

made an affidavit before the Court, the relevant portion of which reads as

under:

"We, SMTI. MOUSUMI DHAR (DATTA), wife of Sri Rabindra Datta, aged about 42, and SHRI RABINDRA DATTA, son of Late Rajendra Mohan Datta, aged about 50 years, both residents of Buddhamandir, Near Mahanam Medical Hall, PO-Abhoynagar, PS-New Capital Complex, Sub-Division-Agartala, District-West Tripura, PIN-799005, Hindu by religion, business by occupation, do hereby on solemn affirmation on oath, state as follows:-

xxx xxx xxx

5. At the time of hearing of the writ petition, both of us were present before this Hon'ble High Court, and jointly submitted before this Hon'ble High Court that we would repay the entire loan amount along with interest thereon within 31st March 2020 if the bank authority allows us to sell

the mortgage properties, and the bank authority has agreed to the said proposal, and thereafter, this Hon'ble High Court directed us to submit an undertaking in furtherance thereof, and hence, by an joint affidavit we are submitting this undertaking. We further say that after the issuance of the impugned Notice No.AGMSL/CR/2019-20/21 dated 13.05.2019 (Annexure-5 to the writ petition), the impugned Letter No.AGMSL/CR/2019-20/84 dated 12.07.2019 (Annexure-9 to the writ petition), possession Notices dated 06.08.2019 (Annexure-14 & 15 to the writ petition), we have deposited some amount, and thereafter, in terms of the Order dated 24.09.2019, passed by this Hon'ble High Court in the instant writ petition, we have deposited Rs.2.00 Lac on 30.09.2019 & Rs.3.00 Lac on 01.10.2019.

6. We, SMTI. MOUSUMI DHAR (DATTA), wife of Sri Rabindra Datta, aged about 42, and SHRI RABINDRA DATTA, son of Late Rajendra Mohan Datta, do hereby jointly undertake that we would repay the remaining loan amount along with interest thereof on or before 31st March, 2019, if the if the bank authority allows us to sell the mortgaged properties and also permit us to carry out the business of M/s. Datta Beej Bhandar.

7. The statements made in this affidavit at paragraphs 1 to 6 are true to my knowledge.

In acknowledgement whereof, I sign and swear this Affidavit on this 2nd day of October, 2019 before the Notary Public, Agartala, West Tripura."

It may be noted that this was a joint affidavit signed and filed

by both the respondents.

5. Based on these developments, the Court disposed of WP(C)

No.1173 of 2019 on 03.10.2019 in which the Court after reproducing

paragraphs-6 and 7 of the said affidavit dated 02.10.2019 of the borrowers

observed as under:

"The bank has accepted such settlements and undertakings of the petitioners and the petition is also accepted and taken on record. Consequence and breach of such undertakings are made known to them.

It is clarified that if the petitioners comply the aforesaid undertakings, no coercive action shall be taken against them. In view of above, the present petition stands disposed of in terms of the settlement."

6. Thus on a clear understanding by both the borrowers that they

would repay the entire Bank dues by 31.03.2020, the Court disposed of the

writ petition and prevented the Bank from proceeding further with coercive

recoveries against the borrowers till 31.03.2020.

7. Since the borrowers did not adhere to their commitments of

repaying the Bank dues, the Bank filed present contempt petition in which it

is alleged that after giving the undertaking of which full implications were

explained to them, they have defaulted. The Bank is, therefore, compelled to

file this contempt petition.

8. In response to the notice issued, the respondents had appeared

and filed first of their multiple replies on 15.02.2021. In this reply, they had

taken several defences to the allegation of contempt. These defences can be

summarized as under:

(i) The borrowers had given undertaking to repay the dues

of the Bank on clear understanding that the Bank would permit them to sell

the mortgaged properties. Though in the contempt petition the Bank had

stated that they had accepted such offer of the borrowers, such acceptance

was never conveyed by the Bank to the Court.

(ii) After disposal of the writ petition the borrowers had

approached the Bank for a writing that the Bank would allow them to sell

the mortgaged properties which the Bank had not given them and on account

of which they could not find genuine buyers.

(iii) Due to outbreak of coronavirus as per the general

guidelines of RBI the borrowers had approached the Bank for one time

settlement which was accepted by the Bank duly communicated to the

borrowers under a letter dated 15.10.2020 and as per which the borrowers

had to repay a sum of Rs.1.95 crores (rounded off). The borrowers had also

deposited initial sum of Rs.9,76,827/- for processing the one time settlement

request and after which had deposited on 06.01.2021 further sums of

Rs.10,74,725/- towards OTS installment.

(iv) Despite such payments by the borrowers the Bank had

conveyed to the DRT in the pending proceedings that the OTS settlement

had failed.

9. In short, the defences of the borrowers to the allegations of

contempt were that the Bank had not given in writing that the borrowers

could sell the mortgaged properties to be able to raise the funds for

repayment and that the Bank had itself subsequently accepted the one time

settlement offer of the borrowers.

10. The Bank had thereupon filed a rejoinder on 16.03.2021 in

which with respect to the allegation of the borrowers that despite approach

to the Bank the Bank officers had not cooperated in enabling the borrowers

to sell off their mortgaged properties, it was stated as under:

"8.1 With reference to the statements/averments made in Paragraph 8(a) of the CA, it is most humbly and respectfully submitted that after conclusion of hearing of the contempt petition on 10.03.2021, the bank authorities have enquired into the fact as to whether the respondents had approached them, requesting to give them in writing, for allowing them to sale the mortgage properties to a 3rd party so

as to liquidate the outstanding loan amount. On extensive scrutiny having been made in the context, the bank authorities could conclude that no such communication of proposal was ever made by the respondents, either orally or in writing, and therefore, no opportunity arose for the bank authorities, to respond to the respondents. Since, at no point of time, the respondents have made any such proposal to the bank authorities, the bank authorities had no opportunity to revert back to the respondents. In view of the same, the further allegations made in this Paragraph under reply are wholly without any substance, and therefore, merit no consideration. Even otherwise, it is common knowledge that bank authorities cannot act, unless a prayer in writing, is tendered to the bank. As in the instant case, the respondents deed not submit any prayer in writing, to the bank authorities, it can be safely concluded that the contentions made in this Paragraph under reply is an afterthought, only to cover up the illegalities, committed by the respondents."

11. The borrowers filed a further affidavit on 23.03.2021 in which

they offered unconditional apology for not being able to fulfill their

commitments given in the undertaking filed before this Court. They cited the

factors beyond their control for such purpose. In short, their stand was that

the default was not willful.

12. On 24.03.2021 the Division Bench passed an order in the

contempt proceedings in which after taking note of the rejoinder filed by the

Bank, the defence of the borrowers that the Bank did not abide by the

condition of permitting them to sell the mortgaged properties was no longer

available. Thereupon counsel for the borrowers had conveyed to the Court

that they had a buyer of the mortgaged properties which if allowed to be

sold, would fetch sum higher than the Bank dues. In order to give the

borrowers one more chance to clear their debts the Court had, therefore, in

the said order provided as under:

"Today the respondents were present before the Court. Their learned advocate stated under instructions that the respondents have a buyer for the mortgaged properties and the probable sale consideration for such properties would be in excess of Rs.4 crores. They showed willingness to sell the mortgaged properties directly if the Bank were to permit it and thus clear the Bank dues with interest.

We are prepared to give one more chance to the respondents to clear their dues. They must have reasonable time to find a buyer who can offer the best price, at the same time looking to their track record so far they must show their bona fides subject to which the permission can be granted.

While we are thus attempting to secure the recovery of the Bank's dues with minimum pain to the respondents, the Bank must not proceed against the respondents before the Debts Recovery Tribunal. To put this formula in motion, we had inquired from learned Sr. Counsel Sri Somik Deb for the Bank about the present outstanding dues of the respondents inclusive of unpaid principal with interest. He stated that such

amount comes to approximately Rs.2,88,14,600/- as on October, 2020. As long as the respondents sell the immovable properties for a sum higher than their dues with the Bank, Bank cannot dispute the valuation of the properties.

In this background and after detailed discussion with the advocates from both sides, following order is passed:

(i) The Bank shall provide in writing to the respondents their accumulated dues inclusive of interest as on today with breakup of computation of interest latest by 30.03.2021;

(ii) Latest by 09.04.2021 the respondents shall deposit a sum of Rs.10,00,000/- with the Bank;

(iii) By 26.04.2021 the respondents shall approach the Bank with the details of the prospective buyers which shall also include the information about the agreed sale price of the mortgaged properties which they want to sale;

(iv) By 05.05.2021 the respondents shall deposit a further sum of Rs.40,00,000/- with the Bank. During this period the respondents, the proposed buyers and the Bank shall enter into a tripartite agreement. Three of the conditions of this agreement would be-(a) that, till the Bank dues are fully cleared the sale consideration that the buyers would pay to the respondents shall be directly deposited with the Bank;

(b) till the Bank dues are cleared and the Bank issues no due certificate, the respondents shall not execute final sale deeds with respect to any of the mortgaged properties; and (c) the bank shall indicate its permission to the respondents to sell the mortgaged properties once the dues are cleared. It is clarified that as long as the total sale consideration of the mortgaged properties exceeds the Bank's dues as per the Bank's own

calculations the Bank shall not question the valuation of the sale consideration;

(v) Latest by 30.06.2021, the respondents shall clear the remaining dues of the Bank after which it would be open for them to execute the sale deeds if they so desire and for which the Bank shall not raise any objection;

(vi) If there is any bona fide dispute on behalf of the respondents about the calculation of the outstanding dues by the Bank, they may file an affidavit before this Court within one week of receipt of the calculations by the Bank. However, no such dispute shall permit the respondents to violate any of the conditions of this order or to miss any of the time lines for depositing the bank dues. Such deposits shall be as per the calculations of the Bank unless modified by this Court. Needless to state, to the extent the respondents may have disputes of computation of the dues, their depositing such sums shall be under protest and subject to further orders that may be passed by this court in the present proceedings or by any other competent forum in future;

(vii) Till further orders the Bank shall not proceed before the Debts Recovery Tribunal against the respondents without the leave of the Court.

List the matter on 19.04.2021."

13. Under the said order dated 24.03.2021 thus while providing a

detailed framework for working out an arrangement between the Bank and

the borrowers and in the hope that such arrangement would be bona fide

implemented, the Court had stated that till further orders the Bank shall not

proceed before the DRT against the borrowers without the leave of the

Court. This indulgence was granted to the borrowers in a contempt petition

filed by the Bank, staying DRT proceedings instituted against them by the

Bank only in order to see that if the borrowers are serious about clearing

their debt without the Bank intervention, let them have an opportunity to do

so.

14. On 19.04.2021 the borrowers raised a dispute that when they

tried to deposit a sum of Rs.20,00,000/- with the Bank, the Bank refused to

accept it. Even while we did not find it easy to accept such a stand, we made

some adjustments in the terms for repayment provided in the order dated

24.03.2021 as can be seen from the subsequent order of 19.04.2021 which

reads as under:

"On 24.03.2021 a detailed order was passed giving time schedule for the respondents to clear the debts of the bank. The bank was also asked to give the detailed calculations to the respondents. It is undisputed that the bank has provided such calculation to the respondents which they have received. Learned counsel for the respondents submitted that the respondents have detected a few errors in such calculations which the respondents would highlight in an affidavit which may be filed on the next date of hearing with an advance copy to the counsel for the bank.

Counsel for the respondents further submitted that an attempt was made by the respondents to deposit a sum of

Rs.20,00,000/- towards the dues of the respondents, however, the same was not accepted. Without going into the reasons why the respondents could not deposit such amount with the bank, following further directions are issued:

(i) As stated before us by the counsel for the respondents a cheque of Rs.20,00,000/- will be deposited in the bank on their behalf towards their dues on or before 23.04.2021. Respondent No.1 who is present before the Court undertakes that such cheque when presented for realization will be honoured;

(ii) The bank shall accept such amount towards the dues of the respondents even though such amount may have been deposited by someone else;

(iii) This deposit by a third party would create no right or interest in his/her favour nor the depositor would be entitled to seek refund of the same under any circumstances. Such amount would be adjusted towards the dues of the bank from the respondents;

(iv) Rest of the terms and conditions of the order dated 24.03.2021 remain unchanged, however, with a clarification that by 05.05.2021 subject to the respondents depositing Rs.20,00,000/- as stated before us, they would have to deposit a further sum of Rs.30,00,000/-.

List the matter on 05.05.2021."

15. On 05.05.2021 counsel for the borrowers conveyed to the Court

that they are unable to pay any amount. After taking note of the contents of

orders dated 24.03.2021 and 19.04.2021 the Division Bench passed

following order:

"Today, when the Contempt Petition was taken up, learned senior counsel Mr. Somik Deb for the bank stated that so far the respondents have not deposited any amount. Thus, the said respondents have further breached the undertaking given to the Court as well as the Court's directions contained in the order dated 24.03.2021.

Learned counsel, Mr. Rajib Saha for respondents stated that the respondents were unable to find a buyer for their immovable properties on account of the spread of corona virus and therefore, could not deposit the money as assured to the Court.

We do not find the explanation of the respondents sufficient to breach the conditions to which they had themselves agreed. On 24.03.2021, they had undertaken to deposit a total sum of Rs.50,00,000/- by 05.05.2021. On 19.04.2021, they had again assured that a sum of Rs.20,00,000/- would be deposited immediately and further a sum of Rs.30,00,000/- would be deposited by 05.05.2021. This would indicate that they already had raised necessary funds for depositing with the bank. Any change in the condition is of the corona virus between 24.03.2021 and 19.04.2021 and thereafter till date, cannot be good enough reasons for not fulfilling the terms of the formula under which they were spared the coercive recoveries and the contempt proceedings.

Under the circumstances, we have no choice but to recall the entire mechanism for repayment as recorded in the

order dated 24.03.2021 as modified in the order dated 19.04.2021. Resultantly, it would be open for the bank to proceed further against the respondents before DRT. This Contempt Petition shall also proceed against the respondents for which purpose it may be listed on 12th of May, 2021."

16. Thus, the entire new timeframe and the terms and conditions

which the Court had provided in the order dated 24.03.2021 in a hope that

the borrowers may be able to repay the Bank dues without much pain was

frustrated. This was substantially because as would be clear hereafter, the

borrowers were simply not sincere about their commitments. Had the

borrowers bona fide wanted to act on the terms and conditions advanced by

them and accepted by the Court, their conduct would have been vastly

different.

17. To complete the chronology of the orders passed by the Court

in the contempt proceedings, we may record that on 01.09.2021 the Court

granted one chance to the borrowers to appear before the Court on

08.09.2021. On 08.09.2021 we had framed the charges against the borrowers

the present respondents as under:

"In view of such developments, following charges are framed against the respondents alleged contemnors:

"(i) That, by your willful breach of the undertaking given by you on 02.10.2019 to the Court you have

committed civil contempt as defined in Section 2(b) of the Contempt of Courts Act, 1971;

(ii) Your subsequent conduct of giving further promises to the Court to clear the debts if permission is granted to liquidate the secured asset and thereby further preventing the bank from carrying on recoveries which promise also you never fulfilled, has compounded your contempt and also shows that from the beginning you never intended to fulfill your undertakings given to the Court;

(iii) By these alleged acts and omissions, you have committed civil contempt for which you are liable to be punished as provided in subsection (1) of Section 12 of the Contempt of Courts Act, 1971."

18. The respondents have thereafter filed short affidavit dated

28.09.2021 in which no new facts are brought to our notice.

19. Under such circumstances, learned counsel for the petitioner-

Bank submitted that the respondents have willfully breached the

undertakings given to the Court and also breached the Court's orders based

on which they had obtained certain advantages. Contempt is thus writ large

on the face of the record. Under such circumstances, unless the contemnors

purge themselves of the contempt they have no right of hearing. Counsel

submitted that in terms of commercial borrowings the Courts have viewed

the breach of undertaking more seriously. Our attention is drawn to a

judgment of Supreme Court in case of Prestige Lights Ltd. vrs. State Bank

of India reported in (2007) 8 SCC 449.

20. On the other hand, learned counsel Mr. Rajib Saha raised

following contentions:

(i) The respondents do not dispute breach of undertaking or

breach of order of the Court. However, such breaches are not willful.

(ii) After the borrowers gave undertaking to the Court for

repayment of the entire dues of the Bank, the Bank itself had offered one

time settlement to the borrowers and towards which the borrowers had also

deposited certain amounts with the Bank. Rest of the revised amount had to

be paid in installments indicated in the settlement itself. In view of such

changed circumstances, the Bank cannot fall back on the original

undertaking of the borrowers to allege contempt for breach of the same. The

Bank itself had by its conduct waived the terms of the undertaking.

(iii) He contended that due to prolonged slackness in the

market due to coronavirus, the business of the borrowers had suffered. They

were, therefore, unable to raise enough funds for repayment. For the same

reason the real-estate market had also deflated and there were no buyers for

the secured assets from the sale of which the borrowers could repay the

debts. In short, because of supervening circumstances they must be freed of

the undertaking given by them.

21. We do not find that the respondents have made out a sound

defence for their willful and repeated breach of the undertaking and the

Court orders. We may recall, in the writ petition the borrowers had first

indicated the intention to repay the Bank dues by 31.03.2020. This was

recorded in the order dated 30.09.2019 in which the Division Bench also

recorded that the respondent No.1 is willing to furnish an undertaking before

the Court that in the event of breach of any of the directions issued by the

Court she will be liable for all actions including initiation of contempt

proceedings. On 01.10.2019 the Court recorded the acceptance of the Bank's

offer made by the borrowers that they will repay the amount of Rs.2.68

crores with interest by 31.3.2020. In the affidavit dated 02.10.2019 jointly

signed by both the borrowers, they had undertaken to the Court that they

will repay the entire amount along with interest by 31.03.2019 if the Bank

allows them to sell the mortgaged properties. This order also recorded the

acceptance of the Bank to such statements and undertaking of the borrowers.

The Court further recorded that the consequences of the breach of the

undertaking were made known to the deponents. It was thereupon the writ

petition came to be disposed of in view of such settlement.

22. The defences of the borrowers that the Bank never conveyed its

acceptance of the terms of the agreement and that the Bank did not indicate

in writing its preparedness to allow the borrowers to sell the secured assets

are nothing short of sham and frivolous defences. As noted, more than once

this Court had in its orders recorded that the Bank had accepted the offer of

repayment terms. The Bank did not have to independently convey the same

to the borrowers in writing. In fact, the writ petition was disposed of on such

understanding in presence of the Bank after recording its acceptance of the

compromise formula. The averment that the Bank officers did not give it in

writing that the borrowers can dispose of the properties though the

borrowers approached the Bank has two fallacies: (i) the orders of the Court

never required the Bank to do so; and (ii) the Bank officer has filed an

affidavit denying that the respondents never approached the Bank with such

a request. Clearly these defences are presented for diverting the real issues.

23. Coming to the questions of effect of coronavirus spread and the

action of the Bank to offer one time settlement to the borrowers, we may

note that the borrowers had given the undertaking to the Court on

02/03.10.2019. The first sign of corona affecting the country took place

around third or fourth week of March, 2020. The borrowers have no

explanation why during this period they did not make any substantial

repayments to the Bank. It is not as if they could forget about repayment

till 30th March 2020 and miraculously on 31.3.2020 the amount will be

raised. They showed no colour of money to the Bank in the meantime. Only

7 days short of they approaching deadline if the coronavirus affected the

economy, the borrowers cannot take shelter of such supervening

circumstances.

24. In any case, the borrowers even in the present contempt

proceedings had offered fresh terms of settlement to the Bank at which point

of time the effect of the corona was known to all concerned. It is true that

the Bank in the meantime had offered one time settlement to the borrowers

which as correctly explained by the counsel for the Bank was part of a

general policy decision of the RBI and it was applied to the borrowers in the

present case without discrimination. Had the matters rested there, it was

open for the borrowers to argue that in view of the fresh terms of settlement

between the Bank and the borrowers the Bank cannot now pull up the

borrowers for their breach of the past undertaking given to the Court.

However, in response to the contempt proceedings, as noted above, the

borrowers entered into fresh negotiations with the Bank as well as with the

Court. The borrowers conveyed to us that they have the buyers ready and if

the Bank cooperates they can still sell the property and raise enough funds to

clear all their debts. When we accepted this offer of the borrowers, we were

of the opinion that the borrowers had made a bona fide offer. Forced sale of

the immovable property by the Bank often leaves the borrower dissatisfied

about the correct sale value being fetched in the process. Instead, we thought

if the borrowers themselves are allowed to sell their own properties, they

would at least be satisfied about having found the buyer offering the highest

price. It was, therefore, that we had passed an elaborate order to work out

this arrangement. The borrowers frustrated even this arrangement. They

raised frivolous defences for not being able to find the buyers. Their

advocate argued before us that the original title deeds of the documents were

lying with the Bank and till the Bank returned such documents the buyers

were not prepared to enter into serious negotiations. For multiple reasons

this defence again is totally invalid. No Bank can be asked to part with

original title deeds of hypothetical properties till the dues are cleared. If this

was the apprehension of the borrowers, they ought to have voiced the same

before the Court when the Court was granting them additional time with the

trust and belief that they were honest about their offer of repayment. Raising

such defences after having availed of additional time for clearing the debts

only shows the lack of bona fides on their part. As recorded in order to make

this arrangement workable and not allow the Bank to proceed against the

borrowers on multiple fronts, while giving additional time to the borrowers

in a contempt petition filed by the Bank we had stayed further DRT

proceedings against the borrowers. We do not think the borrowers could

have asked for better treatment. We are sorry that the borrowers have

misused our leniency and borrowed time without the slightest intention of

adhering to any of the terms and conditions which they were agreeing before

the Court.

25. Such multiple defaults only establish that they have scant

respect for their own undertaking or the Court orders. In clear terms both the

contemnors have committed civil contempt as defined under Section 2(b) of

the Contempt of Courts Act, 1971 and for which they have been charged.

We, therefore, hold them guilty of the charges.

26. After passing this order, we had heard learned counsel for the

borrowers for sentencing who only requested for leniency. If we had noticed

a slightest hint of the defaults not being willful, if we had found even a

remote possibility of concluding that the borrowers were bona fide in their

offers, undertakings and understanding given to the Court, we would have

certainly let them off with fine. Despite our best efforts, we find none of

these factors present in these proceedings. It is, therefore, our unpleasant

duty to impose at least some jail sentence failing which, we are afraid, the

citizens might take the orders of the Court and the undertakings before the

Court rather lightly and in the process we would be diminishing the majesty

of the Court. Respondent No.1 is a lady and perhaps a sleeping partner in

her husband's business. However, the hard fact is that she is the principal

borrower. Her husband behind the scene is a guarantor. We obviously

cannot impose lighter punishment on principal borrower than the guarantor.

For their equal culpability, we direct them to undergo simple imprisonment

for a term of three months. They will also deposit fine of Rs.1,000/- each

and in default thereof undergo further simple imprisonment for a period of

15 days. The respondent No.2 shall surrender before the New Capital

Complex Police Station latest by 5th October, 2021. The respondent No.1,

we are informed, is unwell. She will have time up to 31st December, 2021 to

surrender and serve out her sentence.

27. Petition disposed of accordingly.

Pending application(s), if any, also stands disposed of.

        (ARINDAM LODH), J                        (AKIL KURESHI), CJ




Pulak