(1) Tripureswari Enterprise vs (1) State Bank Of India
2022 Latest Caselaw 1115 Tri

                                Page 1 of 6



                    HIGH COURT OF TRIPURA
                      _A_G_A_R_T_A_L_A_
                         WP(C) No.739 of 2022
(1) Tripureswari Enterprise, represented by the sole proprietor, Smt.
Chhana Rani Datta.
(2) Smt. Chhana Rani Datta, wife of Sri Bibhas Ranjan Datta, Surjyapara,
Road No.15 (near Charipara Bus Stop), P.O. & P.S. A.D. Nagar, District-
West Tripura, Pin-799003.
(3) Sri Bibhas Ranjan Datta, son of late Banka Bihari Datta, , Surjyapara,
Road No.15 (near Charipara Bus Stop), P.O. & P.S. A.D. Nagar, District-
West Tripura, Pin-799003
                                                     ......Petitioner(s)
                              VERSUS
(1) State Bank of India, represented by the General Manager, State Bank
Bhawan, 11th Floor, Madam Cama Road, Mumbai-400021.
(2) The Assistant General Manager, Rasmeccc & Sarc, 4 Mantribari Road,
Old RMS Chowmuhani, Agartala, District- West Tripura, Pin-799001.
(3) The Chief Manager, State Bank of India, 4 Mantribari Road, Old RMS
Chowmuhani, Agartala, District- West Tripura, Pin-799001.
(4) The Branch Manager, State Bank of India, Arundhutinagar Branch,
P.O. & P.S- A.D. Nagar, Agartala, District-West Tripura, Pin-799003.
                                                       ......Respondent(s)

For Petitioner(s) : Mr. D. Deb, Advocate.

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

HON'BLE THE CHIEF JUSTICE (ACTING) HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY Date of hearing and Judgment : 20th December, 2022.

JUDGMENT & ORDER(ORAL)

Heard Mr. D. Deb, learned counsel appearing for the petitioner

and also heard Mr. P. Saha, learned counsel appearing for the respondent-

bank.

[2] The present petition has been filed by the petitioner under

Article 226 of the Constitution of India for setting aside and quash the

vacation notice vide No. RASMECC/SARFAESI/VN/2021-22/76 dated

07.10.2021 and the order/notice vide No. NIL, dated 28.06.2021 of taking

over possession of the mortgaged property being additional security of the

loan under cash credit accommodation scheme, C/C account I/D

35078995881 in the name of the petitioner under proprietor of Smt. Chhana

Rani Datta for the alleged default of return of the loan amount by regular

transaction by the petitioner as per provisions of SARFAESI Act with a

view to recovery of the dues of the loan amount by auction sale of the

mortgaged property of the guarantor.

[3] The petitioner has prayed for the following reliefs :

"(i) Issue Writ/Rule directing the respondents or each of them for settlement of the dues of the Loan A/c of the petitioner by one time settlement scheme (OTS) of the Reserve Bank of India guideline by relaxation of the interest accrued in the COVID-19 period since the March 2020 till September 2021 and onwards for making the account NPA and for closing operation of the Accounts and also granting 3 installments to the petitioner in making the payment of the dues of the loan accounts after one time settlement scheme (OTS) and to quash and set aside the Notice/Order dated 28.06.2021 and 07.10.2021 of the respondent No.3 (Annexure-I & VIII).

(ii) Issue Rule upon the respondents or each of them directing to remain abstain from giving the effect of the notice/order dated 28.06.2021 & 07.10.2021 of the respondent No.3 (Annexure-I & VIII) and from further proceeding of making auction sale of the mortgaged property till disposal of the present writ petition.

(iii) Issue Rules or directing or Orders upon the respondents or each of them as your Lordships deem fit and proper and also be kind to pass an order to stay further proceeding with the Notice/Order dated 28.06.2021 and 07.02.2021 of the respondent No.3 (Annexure-I & VIII) and any process of

auction sale of the mortgaged property till disposal of the present writ petition.

(iv) Issue further rules or direction or orders of ad-interim stay."

[4] The facts of the case, in brief, are that on 06.07.2015, the

petitioner No.2 availed a cash credit loan from the State Bank of India,

A.D. Nagar Branch, Agartala and after completion of all the formalities, the

respondent No.4 started the business with the petitioner of carrying

building construction materials like bricks, sand, cement in the name and

style "Tripureswari Enterprise with the limit up to Rs.13,00,000/-. The

petitioner No.1 made the transaction in the loan account regularly but

unfortunately failed to make regular transaction in the loan account due to

Covid-19.

[5] On 28.06.2021, the Chief Manager of the State Bank of India

issued possession Notice under the SARFAESI Act, 2002 demanding

recovery of the dues. Although the land measuring 3888 sq. ft. i.e. 0.09

acres was given in mortgage, the value of which was assessed by the

approved valuer as Rs.20,25,000/-. After receipt of the possession notice

from the Bank dated 28.06.2021 the petitioner on 24.09.2021 deposited

Rs.5,00,000/- in the said loan account. The petitioner on 27.09.2021 made a

prayer to the AGM for compromising the loan inter alia stating the on

account of pandemic situation the business of the petitioner was badly

affected and could not collect the balance amount from the market and

faced lots of trouble due to Covid-19 situation.

[6] On 24.09.2021, the petitioner despite being deposited the

amount of Rs.5,00,000/- the AGM, State Bank of India issued Notice to the

petitioner to clear up the dues within 15 days from the date of the notice to

avoid taking over possession of the properties. Thereafter, the petitioner

deposited Rs.1,50,000/- in the loan account and subsequently deposited a

sum of Rs.1,80,000/- in the loan account. The grievance of the petitioner is

that without considering the worse situation arose due to pandemic, the

respondent bank is proceeding to take over possession of the mortgaged

property.

[7] Mr. D. Deb, learned counsel appearing for the petitioner

submits that the petitioner No.3 aged about 80 years and has been suffering

from spine disease and is presently undergoing treatment and seeks 8(eight)

months time to make the repayment of the outstanding loan amount of

Rs.9,45,917.89 either by installments or entirely.

[8] On the other hand, learned counsel for the respondent-bank

vehemently opposed the petition contending that the present outstanding

dues is more than Rs.16,00,000/- and no interest has been counted.

[9] After hearing learned counsel for the respective parties, this

Court is of the considered view that it is the case of the respondent-bank

that a tune of Rs.16,00,000/- is due and the petitioner behind the back of

the bank has alienated portion of land. Admittedly, the bank has not taken

over the possession and the property has not put to auction.

[10] In view of the said circumstances, this Court directed the

petitioner to come back with the proposal on instructions with regard to

clearing the bank arrears which is nothing but the public money which has

been utilized by the petitioner for development of property. In this regard,

counsel for the petitioner on instruction submits before this Court that his

clients would clear the amount as reminded by the bank within a period of

3(three) months from today i.e. on 30th March, 2023. Learned counsel for

the petitioner further submits that a sum of Rs.1,50,000/- has been paid to

the account were not adjusted but the same were adjusted to some other

account. This is the disputed question of fact that since the majority of the

amount has been agreed to be paid, the petitioner and the respondent-bank

would settle the matter with regard to the disputed sum of Rs.1,50,000/-

and in the event of the petitioner is liable to get the same, the bank would

communicate the same in writing and also give some reasonable time, a

month thereafter upon which the petitioner would clear the arrears. In the

event if the bank feels that Rs.1,50,000/- has been deposited by the

petitioner which is accounted to his account, the said amount would be

adjusted and accordingly, calculation would be made.

[11] It is needless to observe that in the event of the petitioner fails

to pay the amount within a period of 3(three) months as promised by the

petitioner, it is open for the bank to proceed with the matter under the

SARFAESI Act, in accordance with law.

[12] With the above observations and directions, this petition is

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

(S.G. CHATTOPADHYAY, J)                        CHIEF JUSTICE (ACTING)




Dipesh