Rabindra Thakur, son of Sri Rameshwar Thakur, resident of Mohalla Jalalpur, P.S. Sohsarai, District Nalanda v. The State of Bihar & Ors.

counsel for the respondent State Bank of India. The petitioner seeks quashing of the order/notice dated

2.6.2008 issued by the Chief Manager, State Bank of India, Biharsharif Branch by which he was ordered to liquidate the Bank dues of Rs.7,56,186/- along with up-to-date interest under the provisions of the SARFAESI Act. The petitioner had taken a housing loan of Rs.6 lacs on

11.8.2003. The loan was to be repaid and liquidated by monthly instalment of Rs.6,500/- after initial moratorium of 18 months. The petitioner admittedly paid only two amounts of Rs.6000/- and Patna High Court CWJC No.9743 of 2008 (14) dt.29-01-2013 2 Rs.2,000/- on 29.3.2005 and 17.1.2007 respectively and thus on failure on the part of the petitioner to deposit the amount the Bank was compelled to take recourse to the SARFAESI proceedings against the petitioner as a defaulter. The petitioner thereafter approached this Court against the notices issued in the SARFAESI proceedings. This Court by order dated 18.8.2008 while granting time to the respondent Bank to file counter affidavit directed the petitioner to file the scheme for liquidating the entire debts within a period not exceeding five years from that date and further directed the Bank not to create any third party interest. The petitioner had expressed his readiness and willingness to make up for the default already made with interest and prayed for indulgence of this Court for restoration of the agreement on such default being made up. Thereafter on 13.4.2009 this Court noted the counter offer made by the petitioner to pay Rs.13,000/- every month without default for the next five years in full and final settlement of the loan in question upon which the Bank was directed to consider the offer, giving the petitioner liberty to deposit any amount of money which the petitioner thought right and proper and the Bank was directed to accept the same. It is pointed out by learned counsel for the petitioner the petitioner deposited an amount of Patna High Court CWJC No.9743 of 2008 (14) dt.29-01-2013 3 Rs.13,000/- and Rs.6,500/- by July, 2009 and no further amounts. On 5.10.2012 learned counsel for the petitioner submitted that the petitioner will deposit Rs.6 lacs with the Bank towards his dues of the loan by 12.10.2012. On 12.10.2012 this Court noted that the petitioner had failed to deposit the said amount and observed that the petitioner was not interested in liquidating the dues of the Bank only because when the matter was taken up on 18.8.2008 an interim order was passed by which the Bank was restrained from creating any third party interest. The interim order was therefore vacated. It appears that thereafter the petitioner has deposited Rs.4 lacs on 22.10.2012, Rs.2 lacs on 29.10.2012 and Rs.1,36,500/- on

1.1.2013 totaling to Rs.7,36,500/-. In the rejoinder filed on behalf of the respondent Bank it is stated that Rs.7,36,486/- was the outstanding dues of the petitioner as on 17.1.2007 and since then the amount along with interest has increased to Rs.12,40,543/- as on 31.12.2012 and thus the petitioner has still a liability of Rs.5,04,043/- as on the said date which is still increasing with interest on that amount. Learned counsel for the petitioner submits that the petitioner is not in a position to pay the balance amount and a direction may be issued to the Bank to accept the amount that have already been paid as full and final payment. Patna High Court CWJC No.9743 of 2008 (14) dt.29-01-2013 4 Learned counsel for the Bank, on the other hand, submits that on 18.8.2008 itself the petitioner had prayed before this Court that he was ready and willing to make up for the default already made with interest and on the basis of the said statement the interim order was granted in his favour but the interest which accrued in the meantime has not been paid and the petitioner cannot be permitted to get away with it. On a consideration of the aforesaid facts and circumstances, this Court is of the view that the petitioner has not acted in a fair and proper manner before this Court. Despite the interim order passed in his favour he never showed any inclination to pay the amount that was due against him and only after the interim order was vacated the aforesaid amounts were paid. It is not open to the petitioner to say that he will pay dues as existing on 17.1.2007 and should be allowed to get away with interest that had accrued on the amount. This Court therefore does not find any force in the submission of learned counsel for the petitioner that he has to be treated as having paid the entire dues. The challenge to the SARFAESI proceedings by the petitioner must therefore fail. The writ application is, accordingly, dismissed. It will, however, be open to the petitioner to approach the Patna High Court CWJC No.9743 of 2008 (14) dt.29-01-2013 5 respondent Bank in the matter of waiver of part of the interest which shall be considered by the respondents in accordance with the relevant circulars and practice prevailing in the matter. Needless to say that the petitioner’s approaching the Bank for the said purpose will not create any right in his favour to claim any further stay of the SARFAESI proceedings. (Ramesh Kumar Datta, J) spal/-