The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22845 of 2022 An application under Articles 226 & 227 of the Constitution of India. Malati Hansda ……………… …. -versus- Petitioner B.M. SBI, Jharpokharia, Mayurbhanj & Others …. Opposite Parties For Petitioner : M/s. A.P. Bose, D.J. Sahoo, A. Pattnaik & S. Swain. For Opp. Parties : M/s.Mamata Tripathy, Advocate (O.P.1). PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing: 11.01.2023 and Date of Order:20.01.2023 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. The present Writ Petition has been filed challenging the legality and propriety of the order dated 29.06.2022 passed by the permanent Lok Adalat (PUS), Mayurbhanj, Baripada in PLA Case No.66/2021. 2. The factual matrix giving rise to filing of the present case is that the Petitioner herein along with Opposite Party No.5 moved the learned Permanent Lok Adalat in // 2 // PLA Case No.66 / 2021 under Section-22-B of the Legal Services Authority Act, 1987 with a prayer to direct Opposite Party No.1 to deposit the Original fixed deposit receipt along with interest till realization. 2.1. It is the case of the Petitioner that the Petitioner along with Opposite Party No.5 had a joint account in the branch of Opposite Party No.2 and they have also a fixed deposit of Rs.2,00,000/- deposited on 25.05.2001 for a period of 36 months vide Receipt No.TD/A/23883327. The Opposite Party No.5 stood as guarantor in respect of loan availed by Opposite Party No.4 from the Opposite Party No.1-Bank and the FDR was kept as a mortgage before the Opposite Party No.1-Bank. Even after closure of the loan account on 29.02.2016 by Opposite Party No.4, when the Bank did not release the FDR, the Petitioner approached the Opposite Party No.1 for return of the same. In spite of several approaches as being made, when the Opposite Party No.1 did not return the FDR, the Petitioner and Opposite Party No.5 moved the learned Lok Adalat with the prayer as indicated hereinabove. 2.2. Learned counsel for the Petitioner vehemently Page 2 of 8 // 3 // contended that the FDR in question was issued in the joint name of Petitioner and Opposite Party No.5 and Opposite Party No.5 mortgaged the FDR in respect of loan availed by Opposite Party No.4 from the Opposite Party No.1-Bank. Opposite Party No.4 even though cleared the loan on 29.02.2016 and Opposite Party No.1 in spite of such closure of the loan amount, when did not return the FDR, the Petitioner along with Opposite Party No.5 filed the petition before the Lok Adalat seeking a direction on the Opposite Party No.1 to deposit the original FDR along with interest till realization. But learned Lok Adalat without proper appreciation of the prayer made in the matter, passed the impugned order on 29.06.2022 only by directing the Opposite Party Nos.1 to 3 to pay a sum of Rs.10,000/- towards compensation for deficiencies in service and unfair practice and Rs.5,000/- towards cost of litigation. 2.3. Learned counsel for the Petitioner contended that even though a prayer was made for a direction on the Opposite Party No.1 to return the FDR along with interest, but learned Lok Adalat without proper appreciation of the prayer so made only directed for payment of compensation and the original prayer was never considered. The Petitioner accordingly has filed the present writ petition Page 3 of 8 // 4 // with the prayer and for a direction on the Opposite Party No.1 to return the FDR with interest.
Legal Reasoning
3. Ms. Mamata Tripathy, learned counsel appearing for the Opposite Party Nos.1 to 3 on other hand made her submission taking into account the stand taken in the counter affidavit. It is contended that the Opposite Party No.4 availed cash credit facilities of Rs.6,00,000/- from the Opposite Party No.1 in terms of hypothecation agreement executed on 12.06.2006. In order to avail such cash credit facilities, not only Opposite Party No.5 kept in mortgage the FDR issued in the joint name of the Petitioner and Opposite Party No.5, but also Opposite Party Nos.4 and 5 extended the limitation of the agreement by execution of revival letters signed on 01.06.2009 and 25.05.2012 vide Annexure-C/1 and D/1. The Opposite Party No.1 though requested the Opposite Party No.4 to regularize the cash credit account vide letter dated 28.02.2011, 10.03.2011 and 04.04.2011 and recalled the entire loan vide letter dated 15.12.2012, but in spite of due intimation to both Opposite Party Nos.4 and 5, the Account was never regularized. The Opposite Party No.1 vide letter dated 04.04.2011 also intimated the Opposite Party No.5 to the effect that, the FDR mortgaged by him shall be Page 4 of 8 // 5 // appropriated to adjust the outstanding. If the outstanding in the loan account is not cleared by Opposite Party No.4 Subsequently, the proceeds of the FDR amounting to Rs.2,80,843/-, was appropriated towards the loan outstanding on 29.06.2011. Thereafter the balance outstanding was settled through one time settlement with payment of Rs.4,28,346/- by the Opposite Party No.4 on 29.02.2016. 3.1. It is accordingly contended that the proceeds of the FDR, which was kept as a mortgage was appropriated towards the loan outstanding on 29.06.2011 and balance outstanding was settled through OTS on 29.02.2016 with payment of Rs.4,28,346/- by the Opposite Party No.4. It is contended that while the appropriation of the FDR made on 29.06.2011, the loan account was closed only on 29.02.2016. But the Petitioner along with Opposite Party No.5 jointly moved the learned Lok Adalat seeking a direction on Opposite Party No.1 to return the FDR along with interest more than 10 years after the appropriation of the FDR. 3.2. It is also contended that the Petitioner and Opposite Party No.5 moved the Lok Adalat on the premises that in Page 5 of 8 // 6 // spite of closure of the loan account on 29.02.2016 by Opposite Party No.4, the FDR was not returned, they moved the learned Lok Adalat with the prayer as indicated hereinabove. Ms. Tripathy, learned counsel for the Opposite Party Nos.1 to 3 according contended that since the FDR was kept as mortgage by Opposite Party No.5 with due execution of the letter of guarantee and the same was appropriated towards the loan outstanding on 29.06.2011 and loan was finally settled through OTS on 29.02.2016, the prayer as made before the Lok Adalat was not entertainable. Learned Lok Adalat rightly did not consider the prayer for return of the FDR though saddled the Bank with compensation of Rs.15,000/-. 4. I have heard Mr. A.P. Bose, learned counsel for the Petitioner and Ms. Mamta Tripathy, learned counsel for the Opposite Party-Bank. On the consent of the learned counsel appearing for both the Parties, the matter was taken up for final disposal at the stage of admission and
Decision
disposed of by the present order. 5. Having heard learned counsel for the Parties and after going through the materials available on record, this Court Page 6 of 8 // 7 // finds that the FDR was issued jointly in the name of the Petitioner and Opposite Party No.5 by the Opposite Party No.2-Bank on 25.05.2001. The FDR was issued for a sum of Rs.2,00,000/- and it was kept in a fixed deposit for 36 months. But in respect of the cash credit facility availed by the Opposite Party No.4, Opposite Party No.5 kept the FDR as mortgage before Opposite Party No.1. In spite of several intimation made to Opposite Party Nos.4 and 5 when the loan outstanding was not cleared, the Opposite Party No.1 appropriated the proceeds of the FDR on 29.06.2011 after issuing the notice to Opposite Party No.5 vide letter dated 04.04.2011. Subsequently, the loan availed by Opposite Party No.4 was settled through OTS with payment of Rs.4,28,346/- on 29.02.2016. 5.1. Therefore, the stand taken by the Petitioner that in spite of closure of the loan account, the Opposite Party- Bank failed to return the FDR cannot be accepted as prior to closure of the loan account on 29.02.2016, the proceeds of the FDR was already adjusted on 29.06.2011. Not only that even though the applicant No.1 before the Lok Adalat was the mortgager himself, but he along with the present petitioner moved the Lok Adalat in PLA Case No.66/2021 with a prayer to direct the Opposite Party No.1 to return the Page 7 of 8 // 8 // FDR along with interest. Since Opposite Party No.5 was the mortgager of the FDR, he should not have been a co- applicant in the proceeding in PLA Case No.66/21 and any prayer for return of the FDR at his instance is also not maintainable. The present Writ Petition has been filed by the Petitioner, who is the applicant No.2 in PLA Case No.66/2021 and by impleading applicant No.1 as Opposite Party No.5. 5.2. Since this Court finds that much prior to the closure of the loan account on 29.02.2016, the proceeds of the FDR had already been adjusted on 29.06.2011, which is more than 10 years before filing of the matter before the Lok Adalat, the prayer made by the Petitioner and Opposite Party No.5 for return of the FDR in the said case as per the considered view of this Court is thoroughly misconceived. While holding so, this Court finds no illegality or irregularity in the impugned order passed by the learned Lok Adalat on 29.06.2022 under Annexure-1. Accordingly, the Writ Petition fails and dismissed. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 20th of January, 2023/ Subrat (Sr. Steno) Page 8 of 8