SHAYAMA DEVI CHOURASIA Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This is an appeal under the Madhya Pradesh Uchcha Nayayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, against the judgment and order dated 13-3-2006 passed by the learned single Judge in Writ Petition No. 15/2006.

(2.) The relevant facts briefly are that the respondent No. 1 -State Bank of India, Main Branch, Katni (MP) filed O.A. No. 76/2000 under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short 'the Act') before the Debts Recovery Tribunal. Jabalpur, (for short 'the Tribunal'), for recovery of Rs. 19,48,290.72 paise against the borrower as well as against the guarantors Late Gourishankar Chourasiya, the husband of the appellant was one of the guarantors and had mortgaged his house property at Jabalpur and was impleaded as a respondent in the said O.A. before the Tribunal. By judgment dated 21-11 -2000, the Tribunal ordered for recovery of the said amount with interest and for sale of mortgaged property. Accordingly, a certificate was issued to the Recovery Officer of the Tribunal and the Recovery Officer put the mortgaged property of late Gourishankar Chourasiya to auction in April 2003, but the mortgaged property could not be sold in the auction. Late Gourishankar Chourasiya died on 4-9-2003. Thereafter, a fresh auction of the mortgaged property took place on 31-10-2003 and the mortgaged property was purchased by Sunil Jain arid Smt. Navnita Jain (respondent No. 2) for Rs. 3,75,000/-. The appellant filed objection to the said sale before the Recovery Officer contending inter alia that no notice was issued to the legal representatives of late Gourishanker Chourasia nor were they brought on record and that no proclamation was made in accordance with Rule 53 of the Second Schedule of the Income-tax Act, 1961, and that the benefit of one time settlement scheme as formulated by the Reserve Bank of India (for short 'the RBI') was not extended to the borrower. The respondent No. 1 filed its reply to the said objection of the appellant. The Recovery Officer of the Tribunal rejected the objection filed by the appellant by order dated 8-10- 2004 of the Recovery Officer. The appellant challenged the said order dated 8-10-2004 before the Tribunal by filing an appeal (Appeal No. 26/2004) under Section 30 of the Act and the Tribunal initially stayed the operation of the said order dated 8-10-2004. but after hearing the parties, dismissed the appeal by order dated 18-2-2005. The appellant then filed an appeal against the order dated 18-2-2005 under Section 20 of the Act before the Debts Recovery Appellate Tribunal, Allahabad (for short 'the Appellate Tribunal), numbered as Appeal No. S-98/ 2005 but by order dated 13-12-2005, the Appellate Tribunal dismissed the appeal. The appellant then filed Writ Petition No. 15/ 2006 before the learned single Judge of this Court against the aforesaid orders of the Recovery Officer, the Tribunal and the Appellate Tribunal. The learned single Judge first passed an interim order on 5-1-2006 but finally dismissed the writ petition by the impugned order dated 13-3-2006.

(3.) Mr. Satish Agrawal, learned counsel appearing for the appellant, submitted that the amount sought to be recovered by the respondent No. 1 Bank from the borrower was a Non-Performing Asset (NPA) of the respondent No. 1-Bank and under the RBI Scheme for recovery of NPAs by one time settlement, the respondent No. 1 Bank had made an offer to the borrower to settle the dues sought to be recovered in O.A. No. 76 of 2000 at Rs. 15,84,934.72 paise, out of which 25% was to be deposited at the beginning, and the rest 75% was to be deposited within one year and the borrower was required to submit his. acceptance to the said offer by 30-4-2003. He submitted that the borrower accepted the said offer of the respondent No. 1 Bank on 17-4-2003 saying that after adjustment of 14.10 lakhs which had already been recovered by sale of a property on 27-8-2001, the borrower was prepared to pay the balance amount of Rs. 1,74,947.72 paise within a period of one year. He submitted that in these circumstances, the respondent No. 1-Bank could not have proceeded with the auction proceedings in respect of the mortgaged property of the appellant and the respondent No. 1 was under an obligation to wait till the expiry of period of one year and only thereafter could have proceeded to auction the mortgaged property of the appellant for recovery of remaining outstanding dues. He submitted that this objection of the appellant was rejected by the Recovery Officer by his order dated 8-10-2004 on the ground that since the borrower had not deposited 25% of the amount of Rs. 15,84,934.72 paise, the benefit of one time settlement scheme of the RBI could not have been extended to the borrower. He submitted that there was nothing in the offer of the respondent No. 1 Bank dated 28-2-2003 that 25% of the amount of Rs. 15,84,934.72 paise was required to be deposited for availing the benefit of RBI one time settlement scheme. He submitted that this contention was raised before the learned single Judge but in the impugned order the learned single Judge merely held that the order dated 21-11 -2000 of the Tribunal in OA No. 76/2000 for recovery of Rs. 19,48,290.72 paise with interest has attained finality and the RBI guidelines for one time settlement of NPA issued on 29-1-2003 have to be read in the context of the clarification issued on 7-10- 2003 in the RBI guidelines that one time settlements are not applicable to cases where decree/order has been passed by the Court/Tribunal. He vehemently submitted that the view taken by the learned single Judge in the impugned order is not correct and the borrower should have been given the benefit of one time settlement of the NPA offered by the respondent No. 1 Bank in its letter dated 28-2-2003 and accepted by the borrower on 17-4-2003.