High Court
Case Details
WP(C) 3870/2005 BEFORE HON’BLE MR JUSTICE BK SHARMA This writ petition is directed against the Annexure XI letter dated 06.05.2005 a ddressed to the Deputy Commissioner, Sivasagar by the General Manager of the Ass am Co-operative Apex Bank Ltd. By the said letter, it was conveyed that the peti tioner Tea Estate had huge overdue loans of Rs.982.74 Lakh payable to the respon dent Bank as on 31.03.2005. It was also conveyed that the entire tea crops inclu ding all the movable and immovable properties of the garden were charged hypothe cated and mortgaged to the Bank and the Bank was still holding lien over the cro ps and the movable and immovable properties of the garden. Apprehending that som e land belonging to the Tea Estate might be sold or disposed of without permissi on or concurrence of the Bank. It was requested to stop the process of sale/tran sfer etc., of the land by not granting permission without the concurrence of the Bank.
Legal Reasoning
The petitioner has also challenged the Annexure XII notice dated 08.05.2 005 to the same effect, bringing it to the notice of the general public about th e state of affairs and not to deal with the land in question. According to the petitioner, the proposed sale of the land was not withi n the purview of the mortgage and the lien. In this connection, it has been stat ed thus in paragraph 11: (cid:28) That your petitioners state that to avail of the aforesaid relief pack age, the petitioner company has proposed to sell certain lands adjoining the gar den with the object of liquidating the dues of the respondent Bank and also to m ake arrear payments to the labour force of the garden which is due. It is pertin ent to note that at present the petitioner company is not availing any financial assistance from any Bank and therefore, the proposed sale is with a bona fide i ntention for the purpose aforementioned. The said lands are not subject matter o f any mortgage in favour of the respondent Bank and is free from all encumbrance s. The Patta of the said land is in the possession of the petitioner company. Th e area covered by the Patta is about 404 Bighas and out of that an area of that, an area of about 100 Bighas is proposed to be sold. The details of the land is given below: Patta No. Dag No. Village Mouza Revenue Circle : 1 :304, 492, 493 : Singritoli Bengalie Gaon :Abhoypur : Charaidew Sub Division, Sonari Circle District : Sivasagar The petitioner company was also preparing its new Project Profile as per the guidelines of the Bank. The Office of the Sub Registrar, Charaidew has duly issued a non encumbrance certificate for the years 2002 to 2005 for the aforesa id lands. (cid:29) As against the aforesaid plea of the petitioner, the respondent Bank in their counter affidavit at paragraph 8 has stated as thus: (cid:28) That with regard to the statements made in paragraphs 11 to 26, the de ponent states that M/S. Sonarie Tea Estate was originally a partnership firm and has been drawing working capital finance from the Bank since the year 1990. The petitioner company availed finance for the first time in the year 1990 by creat ing equitable mortgage against the whole of Sonarie Tea Estate with its land mea suring more or less 3585 Bighas, 0 Katha and 6 Lechas with all tea bushes, plant s, houses, bungalows, factories, buildings and machineries standing thereon. The mortgage deed was executed on 13.12.1991 and the title deeds in the form of the original sale deed of the garden along with the copies of the Zamabandi were su bmitted to the Bank. Shri Manavi Ram Baruah, the then Managing partner of the Fi rm had executed a deed of agreement and Memorandum of deposit of title deeds. Th e Memorandum of deposit of title deeds dated 16.09.1991 and 12.12.1991 clearly s howed that the piece of land measuring 404 bighas, 1 katha, 3 lechas covered by Periodic Patta No.1(Old) 1 (New) and Dag Nos.304, 492 and 493 at Singoritala, Bo ngaigaon was a part of the said 3585 Bighas of land. It was further declared and affirmed by the said Managing Partner in the Memorandum of deposit of title dee ds dated 16.09.1991 and 12.12.1991 that the relative pattas inter alia of the ab ove plots of land were lost/damaged and destroyed. He had also undertaken to dep osit the new pattas in lieu of the damaged/lost pattas to the Bank as soon they would be issued by the Revenue authorities at the time of settlement. Under such circumstances the said plot of land very much stands mortgaged with the Bank an d the petitioners cannot sell the same. The firm was later converted into a comp any with effect from 07.04.1993. The company has been availing all the financial accommodations till the year 2001 on the strength of the mortgage. The fact tha t the petitioner company has admitted that the new patta dated 03.11.2001 has no t been deposited with the bank clearly reveals the intention of the company to d efraud the Bank. The Bank on coming to know about the proposed sale had to take immediate action by writing letters to the Deputy Commissioner, Sibsagar and by issuing public notice in newspapers to safeguard its own interest as well as tha t of innocent purchaser. (cid:29)
Legal Reasoning
Mr. SK Medhi, learned counsel appearing for the petitioner has produced a copy of the affidavit-in-reply purportedly filed by the petitioner on 01.08.20 05. However, the same is not available on record. In the said reply affidavit, t he aforesaid specific stand of the respondent Bank has not been denied. That apart, the Memorandum regarding deposit of title deeds to create eq uitable mortgage (Annexure G) annexed to the counter affidavit clearly indicates the land, in question, for which the petitioner was to deposit the original pat ta. It is in this context, Mr. PN Goswami, learned Standing counsel, Apex Ba nk submits that the land being covered by the mortgage/lien, there is no questio n of granting permission to sale the same, more particularly, when the petitione r Tea Estate is in huge default in respect of the re-payment of loan.
Decision
In view of the above, there is no question of setting aside and quashing of the impugned letter and the notice. No direction can also be issued to permi t the petitioner to sale the land, in question. Such permission can only be accorded in respect of land which is specifi cally not under any mortgage/lien of the respondent Bank. Accordingly, the writ petition stands disposed of.