Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3154 of 2013 ====================================================== 1. Pranesh Kumar Sinha S/O Late Bhagwati Sharan R/O 155, Anugrahpuri Colony, P.S.- Rampur, District- Gaya .... .... Petitioner/s Versus 1. The State Bank Of India, Through The Chairman-Cum-Managing Director State Bank Of India, Corporate Centre, State Bank Bhawan, Madame Came Road, Mumbai-400021 2. The Chief Managing, State Bank Of India, Gaya Main Branch Office, Gaya 3. The Authorized Officer State Bank Of India, Gaya Main Branch Office, Gaya .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 5 30-08-2013
Legal Reasoning
Heard Mr. Kejriwal for the petitioner and Mr. Satyendra Kumar for the respondent State Bank of India ( for short „Bank‟). The petitioner along with his brother borrowed two term loan(s) from the respondent Bank. They defaulted in making payment thereof. Resultantly, the respondent Bank initiated steps/action for recovery of loan under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( for short „SARFAESI Act‟) inasmuch as notice under Section 13(2) was issued/published. It is the case of the petitioner that he filed objection thereto which was not Patna High Court CWJC No.3154 of 2013 (5) dt.30-08-2013 2 considered. In the meantime, the respondent Bank issued a notice to the petitioner under Section 13(4) of the SARFAESI Act. Aggrieved thereby the petitioner ( one of the borrowers) filed the present writ petition. This Court, having considered the submissions of the petitioner, observed as under in its order dated 6.3.13. lacs and Rs. 3 “Learned counsel for the petitioner submits that the petitioner has taken two housing lacs loans of Rs.10 respectively from the State Bank of India during the years 2009 and 2010 which had admittedly gone into arrears because of certain financial problems but subsequently he started to repay the amount much higher than the instalment on regular basis so as to clear the arrears. The petitioner approached the Chief Manager of the Bank in the matter for details of the accounts but was surprised on service of SARFAESI notice for repayment of the entire dues which have to be repaid by 2019 and 2020. So far as the arrears of instalment amounts are concerned, the petitioner is willing to pay the same within three months along with the current payments.” A counter affidavit has been filed on behalf of the respondent Bank. As about details of the statements of account, the respondents have stated as under in paragraph nos. 8, 9 and 10 “8.That in the light of above direction, the answering respondents humbly submitted that the respondent sanctioned two loan accounts to the petitioner. These loan account was opened on 3.11.2009 and Patna High Court CWJC No.3154 of 2013 (5) dt.30-08-2013 3 3,00,000/- 19.8.2010 for Rs. 10,00,000/- ( Ten Lakcs) and Rs. ( Three Lacs) respectively. The Respondent of the loan account was to short from 3.11.2009 with EMI Rs. 12,815/- and from 20.8.2010 with EMI Rs. 3,762/-respectively. in the 9. That answering Respondents humbly submitted that the petitioner had paid only Rs. 2,37,609/- in 44 months against total dues of EMI Rs. 6,28,672/- loan Account No. 30943789781. The arrear of instalment with interest is Rs. 3,91,063/- in the above loan account till 31.7.2013. In the second loan account bearing it‟s A/C No. 31344724013, the petitioner has paid only Rs. 51,428/- in 35 months against total dues of EMI is Rs. 1,40,245/- In this loan account total arrears of instalment is Rs. 88,717/- till 31.7.2013. the 10. That answering Respondents humbly submitted that the total arrears of instalment in the above mentioned two loan accounts of the petitioner is Rs. ( Four Lacs Seventy nine 4,79,780/- thousand seven hundred and eighty) to regularize both the loan accounts.” Learned counsel for the respondents referring to the statement made in para 6 of the counter affidavit submitted that the Bank has not issued any notice under Section 13(4) of the SARFAESI Act to the petitioner. A rejoinder to the counter affidavit has been filed by the petitioner. In the rejoinder the petitioner disputed the calculation of the dues. This is what the petitioner has stated in para 4 ,5 and 6:- “4. That in terms of the Patna High Court CWJC No.3154 of 2013 (5) dt.30-08-2013 4 statement contained in para 8 of the counter affidavit the first loan was sanctioned on 03.11.09 and the E.M.I. was to start from 03.11.09 itself at a sum of Rs. 12,815/-. The number of instalments till 31.07.13 has been indicated to be 44 according to which the total sum payable should be 12,815/-x 44= 5,83,860/-. As per the bank‟s affidavit, the amount paid by the petitioner till date is Rs. 2,37,609/- which if subtracted from 5,83,860/- would come to a figure of Rs. 3,46,251/-. 5. That it is further stated that the respondent bank has not annexed the sanctioned letter with the reply which is a must in order to ascertain the terms set out by the respondent bank for the purpose of repayment of the loan. As a matter of practice the housing loans are granted by the nationalized banks subjected to a period of 1 year as grace period. 6. That in such a situation the period of 44 months calculated from 31.07.13 would come down to 44 -12=32 months and the total amount than payable would come to a figure of Rs. 4,10, 080/-. Now the amount admitted by the respondent bank to have been paid by us being Rs. 2,37,609/- the said if adjusted against outstanding i.e. 4,10,080/- - 2,37,609/- = 1,72,471/- ( Rupees One lac Seventy Two Thousand Four Hundred and Seventy One only].” Mr. Kejriwal learned counsel for the petitioner has again reiterated that the petitioner is ready and willing to pay off the entire legal dues of the petitioner to the respondent Bank. If that be so, then this Court would permit the petitioner to deposit Patna High Court CWJC No.3154 of 2013 (5) dt.30-08-2013 5 40% of the dues outstanding against the petitioner as per the calculation provided by the respondent Bank within 04 weeks and thereafter file an application before the Chief Manager of the respondent Bank seeking all clarification(s) with regard to the calculation of the dues. The respondent Bank shall act in a proactive manner in resolving the issue by providing details sought for by the petitioner enabling him to pay the remaining dues within a maximum period of three months. In the meanwhile, the petitioner shall continue to pay regular equal monthly instalment(s) as earlier fixed by the respondent Bank in respect of the term loan(s). Before I part with the case, something more is required to be clarified. The petitioner approached this Court challenging the sustainability of the notice issued to the petitioner by the respondent Bank under Section 13(4) of the SARFAESI Act. The respondent Bank in the counter affidavit has clearly taken a stand that no such notice was issued by the respondent Bank. In that view of the matter, the challenge to the said notice delves into insignificance.
Decision
The application is accordingly disposed of. Shyam/- (Kishore Kumar Mandal, J)