High Court
Case Details
WP(C) 4978/2011 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
Heard Ms. T. Som, learned counsel for the petitioner. Also heard Mr. S. Dutta, learned counsel, representing the respondent Bank and Mr. B.R. De y, learned Sr. Counsel, assisted by Mr. P. Sen, learned counsel for the responde nt No. 3. By means of this writ petition, the petitioner has prayed for a direction to the respondents to deliver the particular machine/machineries, for which, order was placed with the respondent No. 3. Further prayer made in the wr it petition is to waive the interest accrued on the loan amount of Rs. 1,50,000/ -. The petitioner was sanctioned with the term loan of Rs. 2,47,038 /-. As per the terms and conditions of the said term loan, the amount was to be disbursed on installments according to the progress of work after inspection. As regards repayment, it was stipulated that such repayment would be in 60 equal m onthly/quarterly/half yearly installment of Rs. 5400/- plus interest or EMI. Acc ording to the petitioner, the machine that was to be purchased having not been d elivered by the respondent No. 3, although the cheque was deposited to the Bank, he could not operate the particular project. Fault has been attributed to the r espondent Bank by stating that the Bank had directly issued the cheque amounting to Rs. 1,05,000/- to the respondent No. 3 and thus it was the responsibility of the respondent Bank to get the machine from the respondent No. 3 enabling the p etitioner to start the project. It is in the aforesaid circumstances, the petitioner has prayed for waiver of the interest now payable to the respondent bank. In the counter affidavit filed by the respondent Bank, it has be en stated that the quotation in favour of the respondent No. 3 was submitted by the petitioner himself and not the proprietor of M/s Das Photostat i.e. the resp ondent No. 3. It has also been stated that the supply order along with the Deman d Draft of Rs. 1,05,000/- was issued on 16.4.2010 by the Bank in favour of the r espondent M/s. Das Photostat and the same was handed over to the petitioner on r equest so that the supplier would deliver the machineries to the petitioner agai nst the supply order and accordingly the Demand Draft was handed over to the pet itioner. Replying to the aforesaid stand of the respondent in the counter affida vit (paragraph-8 and 9), the petitioner has stated that the Demand Draft was han ded over to the respondent No. 3 for delivery of the requisite machineries. Howe ver, there is no denial that the Draft was handed over to the petitioner. In par agraph-12 of the counter affidavit filed by the respondent Bank it has been stat ed thus: (cid:28)12. That, in regard to the statements made in paragraph 16 of t he Writ Petition, your deponent begs to state that the Bank was surprised to rec eive a legal notice dated 12.06.2010 served through an Advocate on behalf of the Petitioner, wherein, the Bank has been put up with a misplaced request to press urize the supplier to supply the machineries to the Petitioner. The Bank has als o been asked to release the fixed deposit receipts kept as lien and the document s of landed property kept under equitable mortgage with the Bank. And in the fai lure to comply with the terms of the legal notice, it has been cautioned that le gal action would be taken against your deponent in personal as well as official capacity by filing civil and criminal proceedings. Your deponent humbly states t hat the said legal notice was nothing but a script of incorrect facts and misdir ected stipulation having no legal basis. Be it reiterated in this context that n o equitable mortgage has ever been created over any landed property of the Petit ioner. Therefore, the question of releasing the lien or the mortgage cannot and does not arise. In so far as pressurizing the supplier to supply the machineries to the Petitioner, your deponent begs to reiterate that since the Petitioner ha d himself received the supply order along with the Demand Draft from the Bank to serve it personally to the supplier in order to get the supply order honoured, it is the sole responsibility of the Petitioner to ensure that the supplier supp lies the machineries to the Petitioner in time and the Bank is not concerned wit h this aspect act all and therefore, there is no question that the Bank would pr essurize the supplier to supply machineries to the Petitioner. Even then, on rec eipt of an application from the Petitioner’s end, the Bank, though not bound, bu t on good will, wrote a letter dated 23.06.2010 to the supplier to deliver the m achineries within three days. (cid:29) If the petitioner had taken the term loan, he is bound by the te rms and conditions thereof. Merely because the Draft was in the name of the resp ondent No. 3 and the same was handed over to the petitioner for onward transmiss ion to the respondent No. 3, it cannot be said that the duty lies with the respo ndent Bank to get the machineries for the petitioners and that upon failure to d o so, the Bank should waive the interest that has accrued on the principal amoun t.
Decision
In view of the above, the prayer made in the writ petition canno t be granted. Nowhere from the documents annexed to the writ petition it could b e shown that it was the responsibility of the respondent Bank to obtain the mach ineries on behalf of the petitioner. It was for the sake of convenience, the Dra ft was issued in the name of the respondent No. 3 and the same was handed over t o the petitioner. As regards the responsibility of the respondent No. 3 to deliver the machineries, in the counter affidavit filed by it, there is no definite sta nd. Only statement made is that the petitioner examined the particular machine a nd it was found to be in order. However, there is no reference to the delivery o f the machines to the petitioner. If the respondent No. 3 has received the Draft , it was duty bound to deliver the machine/machineries against the said amount t o the petitioner. In view of the above, the writ petition is disposed of directing the respondent No. 3 to deliver the machine/ machineries to the petitioner as e xpeditiously as possible, but at any rate, not later than 31.7.2013. As regards waiver of interest, the same being guided by the terms and conditions of the ter m loan, this Court exercising writ jurisdiction cannot issue any direction to th e respondent Bank for waiver of the same. The matter is left open to the sound d iscretion of the respondent Bank.