NIRMAL SINGH Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India has been filed against the order/letter dated 22/02/2013 (Annexure P5) passed by respondent No.1, by which the petitioner has been directed to arrange to close the loan account within fifteen days from the date of receipt of the said letter/order, otherwise the balance in his deposit accounts will be transferred to the loan account only.

(2.) The necessary facts for disposal of present petition, according to the petitioner are that, the petitioner is a retired person having retired on 1/11/2003 and his only source of income is pension. It is further pleaded that the petitioner is having a Saving Bank Account No.100554363118 in State Bank of India, Jiwaji Chowk, Lashkar, Gwalior. The wife of the petitioner, namely, Smt. Sugamlata was the owner of House No.B-67, situated in Samadhiya Colony, Gwalior which was mortgaged with the respondent No.2 for taking loan. It is submitted that the mortgaged property has been attached by the Bank under the Secularization and Reconstruction of Financial Assets and Enforcement Security Interest Act, 2002 [in short " SARFAESI Act, 2002"]. It is further submitted that the petitioner is a heart patient, whereas the wife of the petitioner is an asthmatic patient. Since the mortgaged property has already been attached by the Bank and the same is in the possession of the Bank, therefore, the respondents have no right to withhold the amount of pension which the petitioner is getting. However, the respondents by letter dated 22/02/2013 (Annexure P5) have withheld Rs. 1 lac and the pension of the petitioner is also not being released in the light of letter dated 22/02/2013. It is submitted that under the provisions of section 60 of CPC as well as under the Pension Rules, the pension of the petitioner cannot be attached under any decree. The petitioner had filed an application for disbursement of his pension, however, the pension amount has not been disbursed and accordingly, this petition has been filed challenging the letter dated 22/02/2013 being violative of section 60 of CPC.

(3.) The respondents/ Bank have filed their return and have submitted that the petitioner was the co-borrower along with wife. The son of the petitioner is the Proprietor of the Firm, namely, Sugam Enterprises. The said Firm had obtained a loan of Rs. 15 lacs and later on, it was extended by Rs. 7 lacs. The said loan was granted after mortgaging the property bearing House No.67, situated in Samadhiya Colony, Gwalior. The documents of title were submitted by the petitioner and his family members. The sale deed on which the loan was obtained, was later on found to be a forged document. The original sale deed of the aforesaid house was already mortgaged with MPFC from where the loan was also obtained by the petitioner, his wife and son. On further enquiry, it has also come to the light that the petitioner, his wife and son prepared many forged sale deeds of the aforesaid house and obtained loan from Central Bank of India, Allahabad Bank, Bank of Maharashtra, Bank of Baroda, Corporation Bank, LIC Housing Finance, UCO Bank and MPFC apart from the State Bank of India. It is apprehended that the petitioner, his wife and his son might have taken loan from other financial institutions also by submitting forged copies of the sale deed of the property in dispute. The petitioner, his wife Smt. Sugamlata stood as a guarantor for repayment of aforesaid loan of Rs. 22 lacs and since it was not paid, therefore, the answering respondents/ Bank took possession of the said mortgaged house under the provisions of SARFAESI Act, 2002. Later on, the mortgaged house was auctioned by MPFC and, therefore, the respondents/ Bank were compelled to file a Writ Petition and the auction done by MPFC has been stayed by this Court by order dated 28/11/2011 passed in Writ Petition No.7808 of 2011. It is submitted that since the forgery was committed at a large scale, therefore, on the report of the Central Bank of India, the Economic Offences Wing (in short "EOW") has also registered a criminal case against the petitioner, his wife and his son and the original documents as well as forged documents have been seized by EOW. It is further submitted that although the paper possession has been taken but in view of the fact that the same house was mortgaged by the petitioner, his family members with other financial institutions/banks, therefore, the respondents/Bank are not in a position to recover the outstanding amount by auctioning the house in question. Under these circumstances, it is submitted that the respondents had no option to recover the amount from the amount deposited in the Bank account of the petitioner with the Bank.