Mr. JUSTICE D. DASH Mr. JUSTICE v. NARASINGH ORDER
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 35990 of 2023 Malaya Kumar Goswami …. Petitioner Mr. R.K. Nayak, Advocate -versus- Urban Co-Operative Bank Ltd., Cuttack and another …. Opposite Parties Mr. J.K. Mohanty, Advocate CORAM: Mr. JUSTICE D. DASH Mr. JUSTICE V. NARASINGH ORDER 18.07.2024 Order No. 04. 1. This matter is taken up through hybrid arrangement (virtual/physical) mode. 2. The Petitioner by filing this writ petition has invoked the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, seeking a direction to the Opposite Party- Bank to pay interest at the rate of 15 % per annum over the amount which the Petitioner had deposited, as the successful auction purchaser which remained with the Bank for the period, along with the cost and expenses incurred for registration of the Sale Certificate and Mutation. 3. Learned counsel for the Petitioner submits that the Opposite Party-Bank has refunded the amount with interest at the Page 1 of 7 rate of 5% per annum saying that it was the rate of interest that was prevailing for the fixed deposit for the period that the amount remained in their hands. He further submits that this Petitioner although has met necessary expenses for the registration of the Sale Certificate and thereafter, in getting the land mutated which were later on cancelled, in view of the settlement arrived at between the Borrower and the Bank, this Petitioner has not been paid those expenses when admittedly he has been deprived from enjoying the benefit of such documentation and those have now not even worth the paper written on. He further contended that Opposite Party- Bank in such peculiar facts and circumstances of the case ought not to have computed interest at the rate of 5% since it is not a case where the Petitioner has sought for the refund but he has been refunded with the amount in view of the settlement arrived at between the Borrower and the Opposite Party-Bank, and the Opposite Party-Bank ought to have taken all such care as regards the payment to be made to the Petitioner while settling the matter with the Borrower. In support of his submission, he relies upon the decisions of the Apex Court in the case of Pragati Builders & Promoters and others Vs. Ram Murty Pyara Lal and others reported in (2016) 13 SCC 293 and Govind Kumar Sharma and another Vs. Bank of Baroda and others, reported in 2024 SCC OnLine SC 559. Page 2 of 7 4.
Legal Reasoning
direction of this Court in seisin of W.P.(C) No.13288 of 2022 filed by the Borrower. He further submitted that the Opposite Party-Bank had very well raised the issue as regards the creation of the third party interest over the property in question as reflected in order dated 26.04.2023 and despite that when the direction has been given to the Opposite Party-Bank to handover the property as well as the records to the Borrower who was the Petitioner therein, the Opposite Party-Bank has carried out the same. In this connection he has invited out attention to the averments taken in the counter affidavit. He also submits that the Opposite Party-Bank having enjoyed the amount deposited by the Petitioner for the particular period what benefit would have been given to a person keeping the said amount in fixed deposit with the Bank for such period, has been extended to the Petitioner. He for the purpose has relied on the circular dated 08.12.2022 which has been annexed to the counter. He, therefore, submits that the Opposite Party-Bank is not liable to pay the expenses met by the Petitioner for registration of the Sale Certificate and other action taken by him in pursuance of the same. 5. Keeping in view the submissions made we have carefully perused the documents annexed. Page 3 of 7 6. Brief facts germane for just adjudication is that one Satyajit Brahma being the borrower had approached this Court by filing W.P(C) No.13288 of 2022 in challenging the action of the Opposite Party-Bank in putting the property to auction sale without following the provisions contained in the SARFAESI Act and Security Interest Rules. By order dated 24.06.2022, this Court had directed for maintenance of the status quo in respect of the said property while further observing that the Petitioner therein may tender to the Bank, draft of Rs.16,01,000/- the sale price offered by the successful bidder towards the total outstanding liability of around Rs.12,80,000/-. The Opposite Party-Bank then having received the amount had placed before this Court that in the meantime the property in question having been sold in auction, third party interest over the same has been created. It appears that the Opposite Party - Bank however by then had not delivered the possession of the property to the auction purchaser (the Petitioner before us). This Court while disposing of the writ petition on 26.04.2023 has made the observations and directions as under; “6. Since the petitioner has already deposited the entire amount, the opposite party-bank is directed to hand over the property as well as the records to the petitioner, so that he will be free from all encumbrances. So far as cancellation of the sale Page 4 of 7 certificate is concerned, the bank has to sort out the same by requesting the sub-registrar to cancel the certificate issued in favour of the auction purchaser, in accordance with law. The entire exercise shall be completed within fifteen days hence.” 7. On going through the writ petition filed by the Borrower numbered as W.P.(C) No.13288 of 2022; it is evident that present Petitioner as the auction purchaser was not made a party. However, the fact remains that after passing of the said order and consequential actions having been carried out, all those being within full knowledge of the Petitioner, he has not taken any step in the matter either to get the order recalled in asserting his claim qua Opposite Party-Bank and for settling all his claims. The Petitioner even thereafter has not initiated any other proceeding even though that order had been brought to his notice by the Bank. The Petitioner only after receiving his deposited amount from the Bank along with interest at the rate of 5% per annum, complains as regards non-payment of higher rate of interest and the expenses met for the purpose of registration of the Sale Certificate and Mutation etc from the Bank. 8. In the facts and circumstances as also the position as it stands; we are of the view that the Petitioner having not challenged the order dated 26.04.2023 passed by this Court in W.P.(C) No.13288 of 2022, its too late in the day for him to raise any further grievance with regard to the payment of the expenses met by him Page 5 of 7 for the purpose of effectuating the auction which having been knocked down in his favour have been cancelled by virtue of the order of this Court from the Bank. However, we find that the Opposite Party-Bank in the present case has strictly gone as per the circular in computing the interest payable to the Petitioner that would have been payable to a depositor, had he kept the money in the fixed deposit for the said period. 9. In the given case, we however find that the Petitioner had participated in the auction pursuant to the notice published and the Opposite Party-Bank does not have any complaint against the Petitioner in not fulfilling his part of the obligations in finally obtaining the Sale Certificate and getting it registered. Therefore in our view, the case of the Petitioner ought not to have been treated by the Bank at par with an ordinary depositor, keeping the money in fixed deposit for that period in getting the benefit thereof. The Opposite Party-Bank ought to have taken the above aspect into consideration while computing the interest on the amount deposited by the Petitioner for onward payment. 10. On careful reading of the decisions (supra), we find that the fact and circumstance of the present case as above stated are quite distinguishable from those of the cited cases. 11. In that view of the matter, we dispose of this writ petition directing the Opposite Party-Bank, as an equitable measure, to Page 6 of 7 compute the interest over the deposited amount of the Petitioner at the rate of 6.25% per annum which is the highest rate of interest as per the circular for fixed deposit placed by the Opposite Party- Bank. The balance interest at such enhanced rate be paid within four weeks of receipt/production of this order. While parting, we, however, feel it proper to place that since here the Bank has refused to act under the Sale Certificate by virtue of the order of the Court and the Petitioner has not derived any benefit whatsoever thereunder on account of the intervention of the Court and the purpose of obtaining the Sale Certificate stood nullified from its inception, the Petitioner would be at liberty to seek refund of the Stamp Duty if paid for the Sale Certificate for the registration from the State banking upon the provision contained in Section 49(3)(d) of the Indian Stamp Act, 1899 for its consideration in accordance with law. Issue urgent certified copy of this order on proper application. (D. Dash) Judge (V. Narasingh) Judge PKS/Santoshi Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 27-Jul-2024 13:52:00 Page 7 of 7
Arguments
Learned counsel for the Opposite Party-Bank submits that it was not at the instance of the Bank that the settlement has been arrived at between the Borrower and the Bank but as per the