Abhay Kumar Singh & Ors v. Canara Bank & Ors
Case Details
-1- IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 326 of 2013 Abhay Kumar Singh & Ors. ....Appellants Vs. Canara Bank & Ors.... ... ... ... Respondents ... ------ CORAM: HON'BLE THE CHIEF JUSTICE.
Legal Reasoning
HON'BLE MR. JUSTICE APARESH KUMAR SINGH. ------ For the Appellants: For the Respondents: Mr. Anoop Kumar Mehta, Advocate Mr. Dilip Kumar Prasad, Advocate ------ ------ Dated 19 th December, 2013 The present appeal has been preferred against the order dated 12.08.2013 passed in W.P.(C) No. 3550 of 2013
Decision
whereby the writ petition filed by the appellants herein was dismissed by the learned Single Judge with an observation that since the matter is under consideration before the Bank for reversal of the entry of sale proceeds and, therefore, no relief could be granted to the writ petitioner. 2. Brief facts of the case is that the appellants purchased flats from 4th respondent-builder. For purchase of the said flats the petitioners entered into a tripartite agreement with the Bank and builder and pursuant to the tripartite agreement, these appellants applied for housing loan and the same was subsequently sanctioned. The appellants acquired the flats by virtue of registered sale deeds and took possession of the flats. The appellants purchased flats nos. 301 to 303 and 203 as under: -2- Sl. No. Name purchaser/petitioner of 1 2 3 4 Abhay Kumar Singh Sujay Kumar Manoj Kumar Munna Kumar the Flat Nos. Date of Registration Consideration Money 301 302 303 203 25.06.2012 30.03.2012 17.05.2012 23.02.2012 Rs. 19,42,000 Rs. 16,30,000 Rs. 16,78,000 Rs. 15,37,000 3. Having acquired their flats, the appellants created equitable mortgage with respect to their flats in favour of the respondent Bank by depositing their original title deeds. Thereafter the E.M.I (Equated Monthly Installments) due and payable by the appellants are being deducted every month from the monthly salary of the appellants. 4. Case of the appellants is that the appellants came to know that the 4th respondent-builder did not have a valid title to sell the flats and the Tripartite Agreement is void-ab-initio. Further case of the appellant is that they came to know that the flats in question have already been sold out to one Suraj Nath Tiwari and Babloo Tiwari on 28.02.2011 by the 4th respondent much prior to the creation of the flats in favour of the Bank i.e. on 08.09.2011. Thereafter the appellants got it verified from concerned Registry Office and obtained certified copy of the sale deed dated 28.02.2011 of the flats in question executed in favour of Suraj Nath Tiwari which will prove that the 4th Respondent was no more the owner of the flats in question. 5. According to the appellants they have made a -3- representation on 25.08.2012 and 3.9.2012 requesting the Bank-respondent nos. 1 and 2 to look into the matter and reverse the wrongful entry from the Accounts, where it was wrongly credited and credit the same to the loan account of the appellants. Further case of the appellants is that they have again made representation dated 10.09.2012 requesting the Bank not to deduct monthly installments from the salary of the appellants but it has no effect. The contention of the appellants is that since only on account of report of the Bank that the 4th respondent has valid title over the property in question, the appellants proceeded to purchase the flats and stated that Bank being the State within the meaning of Article 12 of the Constitution of India is bound to perform its public duty of rectifying the mistake committed by the Bank. 6. The appellants herein filed a writ petition for a direction upon the respondent-Canara Bank to reverse the entry of sale proceeds from the account of the 4th respondent to the housing loan account of the petitioners- appellants. 7. The learned Single Judge held that for the same relief the appellants have filed representations before respondent nos. 1 and 2 (Canara Bank) and the said representations are under consideration before the Bank and the Deputy General Manager of the Bank expressed the view that amount be reversed in the Loan Accounts of the petitioners-appellants herein. Learned Single Judge -4- therefore, held that since the matter is under consideration before the Bank no relief can be granted to the petitioners at this stage. Being aggrieved, the appellants have filed this L.P.A. 8. Learned counsel for the appellants submitted that for want of title over the property of 4th respondent- builder, the appellants cannot be made to suffer and the monthly installments being deducted from the salary of the appellants, which is credited elsewhere, need to be reversed and the same must be ordered to be credited to the housing loan accounts of the appellants. Learned counsel for the appellants placed reliance on paragraph 8 of the judgment rendered in the case of Urban Improvement Trust, Bikaner Vs. Mohan Lal reported in (2010) 1 SCC 512. 9. We have heard learned counsel for the appellants as well as learned counsel for the respondents. 10. The question whether the 4th respondent has a valid title or not; whether the 4th respondent had valid right to execute the sale deed for selling the flats or not; whether the property in question where flats were constructed was already sold to one Suraj Nath Tiwari and Babloo Tiwari and whether it was under attachment of other Bank or not; are the questions of fact, which cannot be gone into in the writ petition while exercising jurisdiction under Article 226 of the Constitution of India. In such facts and circumstances, we are not inclined to interfere with the order passed by the -5- learned Single Judge and hence, the L.P.A is dismissed. 11. However, having regard to the contention of the appellants, the appellants are at liberty to work out the remedy before the appropriate forum in accordance with law. The appellants are also at liberty to approach the Bank and make fresh representation and upon receipt of such representation, the respondent nos. 1 to 3 are directed to consider the same and dispose it of in accordance with law expeditiously and preferably within a period of three months from the date of receipt of copy of this order along with the said representation. (R. Banumathi, C.J.) (Aparesh Kumar Singh, J) Alankar/Sudhir-