RAVINDRA v. GHUGEAND Y. G. KHOBRAGADE, JJ
Legal Reasoning
6121.24wp(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 903 WRIT PETITION NO. 6121 OF 2024PRASAD BHALCHANDRA VAIDYAVERSUSDEPARTMENT OF FINANCIAL SERVICES, THR ADDITIONALSOLICITOR GENERAL, BOMBAY HIGH COURT AURANGABAD ….Mr P. B. Vaidya, Petitioner – Party in personMr A. G. Talhar, DSGI for Respondent Nos.1 & 4Mr M. G. Deokate, Advocate for Respondent No.3 CORAM : RAVINDRA V. GHUGEAND Y. G. KHOBRAGADE, JJ. DATE : 2nd July, 2024PER COURT:1.On 26/06/2024, we had passed the following order :-“1.The Petitioner has already filed a proceedingbefore the learned Debt Recovery Tribunal at ChhatrapatiSambhajinagar. We are informed that the Presiding Officerhas demitted office and the proceeding initiated by thePetitioner bearing Securitization Application No.116/2024,is now being heard by the In-charge Tribunal at Pune.2.The Petitioner, who is a practicing Advocateand appearing in person, has made the following categoricstatements :-(a)The property at issue in the proceeding beforethe Tribunal, has never been mortgaged to any Bank ; 6121.24wp(2) (b)The Petitioner has come with a rare case,wherein loan has been advanced by RespondentNo.3/Bank to the brother of the Petitioner, namely,Prasanna, without any mortgage of property. (c)The Petitioner is neither a guarantor nor aborrower and has not taken any loan.(d)The Petitioner has inherited his father’sproperty bearing Survey No. 191, C.T.S. No.3896, MHNo.R-8/1711, situated at Ramnagar, Latur, Dist. Latur,admeasuring 2100 sq.ft.(e)Though there is a mortgage deed placed onrecord at Page No.54, indicating that the deceasedfather of the Petitioner has taken loan fromRespondent/Bank, no such loan was ever sanctionedby the Bank and no loan amount was disbursed to thedeceased father of the Petitioner. As such, the samehouse property which is owned by the deceased fatherof the Petitioner is shown as the mortgaged property,though no loan has been taken.3.The Petitioner is presently in possession of thesaid house property and after the demise of his father in2007, neither any suit for partition and separate possessionhas been filed, nor has there been any change in themutation entry. 4.Since the proceedings initiated by the Petitionerare pending before the Tribunal, the learned Advocate forthe Respondent/Bank states that a written statement wouldbe filed, on or before 05/07/2024 and a soft copy of the
Legal Reasoning
6121.24wp(3) same shall be supplied to the present Petitioner on hisEmail address. The Petitioner furnishes his email as“prasad@onlinerti @ gmail.com ”. The Petitioner clarifiesthat the Email Id mentioned in the title clause of the petitionpaper book as “prasad bvaidya @rediffmail.com ”, ispresently not functional on desktops and laptops and,therefore, the Petitioner is not accessing any mails on thesaid Email Id.5.We could have disposed off this Writ Petitiontoday itself, but for the fact that the Petitioner has made acategoric statement that, though the mortgage deed isavailable at Page No.54 of the Petition paper book,showing his father as a borrower, no loan amount wasextended to his father and there is no such loan accountwith the State Bank of India. He has also stated that hisbrother Prasanna has taken loan from the same Bank, butno property is mortgaged. Therefore, we have called uponthe learned Advocate for the Respondent/Bank to takeinstructions and address us, on 02/07/2024.6.By consent of the parties, this matter wouldappear under the caption of ‘dictating order’, on02/07/2024.”2.The learned Advocate appearing on behalf of theRespondent/Bank has placed on record an Email communication,received by him from the Respondent/State Bank of India, AusaRoad, Latur. Since the learned Advocate Shri. Deokate did nothave sufficient time to prepare an affidavit-in-reply, the Email 6121.24wp(4) message has been received from the Authorized Officer of theBank i.e. Branch Manager, dated 02/07/2024. The printout copyof the said communication is marked as ‘X’ for identification. Acopy has been served upon the Petitioner in person.3.The Respondent/Bank has averred in it’scommunication ‘X’ as under :-“REFERENCE:WP No. 6121 of 2024 (Prasad B. Vaidya V/s First Appellate Authority & Registrar DRT, Aurangabad & Ors)Pursuant to order dated 26/06/2024 passed by this Hon'ble HighCourt, the respondent no. 3-The Authorised Officer, State Bank ofIndia is submitting its clarification to the categorical statements madebefore this Hon'ble High Court as follows:In respect of clause 2(a) of the order it is humbly submitted that thestatement about the property at issue in the proceeding before theTribunal has never been mortgage to any Bank is false, incorrect andbogus in view of the fact that the same property has been mortgagedby the father of the petitioner in favour of the respondent no. 3 StateBank of Hyderabad which has been merged into State Bank of Indiavide notification no. G.S.R. 157(E) dated 01/04/2017 issuedGovernment of India. Copy of registered mortgage deed bearing daybook no. LTR-5155-2010 dated 01/10/2010 (Page no. 53) is producedon record by the petitioner.In respect of clause no. 2(b) of the order it is humbly submitted thatthe statement made by the petitioner is incorrect in view of the factthat the erstwhile State Bank of Hyderabad has sanctioned home loanvide Arrangement Letter dated 15/11/2010 (Page no. 72) to thebrother of the petitioner, namely, Prasanna B. Vaidya and his father, 6121.24wp(5) namely, Bhalchandra A. Vaidya which bears signature of both theborrower and mortgagor.In respect of clause no. 2(c) of the order it is humbly, submitted thatthe statement made by the petitioner is correct.In respect of clause no. 2(d) of the order it is humbly submitted thatthe statement made by the petitioner is denied for want knowledge.In respect of clause no. 2(e) of the order it is humbly submitted that thestatement made by the petitioner is incorrect, false and bogus in viewof the fact that the respondent no. 3 has disbursed the loan amount tothe brother of the petitioner, namely, Prasanna B. Vaidya andaccordingly, loan account no. 62169016291 was opened in his nameas brother of the petitioner has availed the loan amount from therespondent no. 3.Hence this clarification on behalf of the respondent no. 3.Date: 02/07/2024RESPONDENT NO. 3Place: AurangabadSd/-The Authorised Officer State Bank of India Branch Manager V. B. Patil S.S. No. P-9914 P.F. No.-4499824”4.The Petitioner in person has addressed us by drawingour attention to a communication dated 28/12/2023, addressed bythe said Bank to his biological brother Mr Prasanna BhalchandraVaidya. He refers to paragraph No.2 with regard to the mortgage,which is mentioned in Schedule ‘B’. He has then turned over toPage No.25 of the Petition paper book and has read out Clause 3 6121.24wp(6) below Schedule ‘C’, which indicates the date of mortgage as24/09/2010. He has then turned to Page No.26, more specificallyPara II (Equitable Mortgage of Immovable Property) and pointsout that the name of his biological brother is mentioned to showthat the house property which is presently inherited by the presentPetitioner and in which he is residing, is shown as the mortgagedproperty. 5.He has also pointed out Clause 6 from Page No.74,which indicates the contents of the mortgage deed dated15/11/2010, wherein the name of the borrower of the loansanctioned as against house property, is Bhalchandra AbajiVaidya, is the late father of the Petitioner in person. 6.The learned Advocate for the Bank submits that theaffidavit-in-reply/written statement of the Bank in the pendingproceedings under Section 17 of the Securitization andReconstruction of Financial Assets and Enforcement of SecurityInterest Act, 2002 (SARFAESI) Act, before the Debt RecoveryTribunal, Nagpur will be served upon the Petitioner on his Emailaddress mentioned in the order dated 26/06/2024, by 2:00 p.m 6121.24wp(7) tomorrow. He further submits that the learned Tribunal has nowpreponed the matter to 05/07/2024 at Nagpur for a hearing in thematter.7.Since there are several disputed questions before us,inasmuch as, that a proceeding initiated by the Petitioner in personis also pending before the Tribunal, that this Writ Petition isdisposed off. We would appreciate if the Tribunal permits thelitigating parties to address on the application for interim relieffiled by the Petitioner in person. It would be in the interest ofjustice that, such application is decided by the Tribunal on it’sown merits, on or before 20/07/2024. All the contentions of thelitigating parties are kept open. It is clarified that, we have notdelved upon any of the rival contentions since we find that thereare disputed questions/issues are left open to be considered inaccordance with the jurisdiction of the Tribunal under theprovisions of the SARFAESI Act. (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)sjk