MADHU SUDAN GHOSH Vs. BANK OF BARODA

JUDGEMENT

(1.) In the instant writ petition the petitioner no. 1 Madhu Sudan Ghosh has claimed that he is owner of a plot of land measuring 2 Cottahs 1 Chittacks appertaining to R.S. Plot No. 669 and R.S. Khatian No. 1610 under Mohanpur Mouza within Titagarh Police Station of North 24 Parganas District by virtue of a deed of gift being no. 3791 of 1991. On 20.06.2003 he applied for a house building loan to the Branch Manager, Bank of Baroda at Baisakhi Barrackpore, District North 24 Parganas, being the respondent no. 3 herein, for a sum of Rs. 3,00,000/- which was granted on 14.07.2003 subject to repayment by 117 equal monthly instalments of Rs. 3,902/- each. Since then he is repaying the loan. But on 30.10.2007 he received a letter dated 29th October, 2007 to the effect that the respondents have started proceeding under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SRFAESI Act, 2002) treating his debt as Non-Performing Asset. But no notice, as required under Section 13(2) of the Act, was served upon him and such proceeding was drawn behind his back. On 20.02.2009 he deposited a sum of Rs. 12,000/- through a pay-order drawn on State Bank of India, Prafulla Branch, Kolkata to show his bona fide intention to repay the loan. On that date he submitted a proposal for full and final settlement of the entire dues by repaying the balance amount of Rs. 2,50,000/- within March, 2009. But no reply thereof was given by the Bank despite several queries made. On 01.04.2009 by a letter the petitioner was informed that his proposal for settlement of the dues was cancelled as he failed to pay the entire amount of Rs. 2,50,000/- within March, 2009 as committed. Ultimately the said property was to put in auction sale by publishing a notice in the daily newspaper Ajkal on 21.01.2009 which is contrary to law. The petitioner is still willing to pay the entire claim amount of Rs. 1,24,000/- by way of full and final settlement of his outstanding dues. Under the circumstances he has prayed for appropriate direction upon the respondent authorities not to put the mortgaged property of the petitioner under loan account no. 24540600021191 in auction sale without adopting the procedure laid down under Section 13 of the SRFAESI Act, 2002 and to restrain the respondent authorities from acting upon the said published notice in the Ajkal dated 21.01.2009 since the entire process adopted was contrary to provisions of law with further prayer for direction upon the respondent authorities to accept the proposal for settlement of the petitioner dated 20.02.2009 and to prohibit the respondents from alienating and disposing of the secured immovable assets in their possession against the aforesaid house building loan account.

(2.) The respondents in their affidavit-in-opposition have opposed the move and contended that admittedly the petitioner has taken the loan by mortgaging the said property and failed to repay the amount as per agreement. Therefore, due notice was served upon him under Section 13(2) of the SRFAESI Act, 2002. There is a specific alternative remedy available to the writ petitioner under Section 17 of the said Act before the Learned Debts Recovery Tribunal having jurisdiction in the matter. But the writ petitioner has not sought for such remedy before the appropriate authority and deliberately chosen this Writ Court since the period of limitation prescribed for foiling an application under Section 17 of the Act expired long ago. Since the petitioner failed to repay the loan even after due notice the respondent authorities had no other alternative but to declare the said loan as Non-Performing Assets and due statutory notice was served upon him under Section 13(2) of the SRFAESI Act, 2002 on 3rd March, 2006 intimating therein that the loan account of the writ petitioners had been classified as Non-Performing Asset on and from 13.09.2004 and he was called upon to make payment of a sum of Rs. 3,16,833/- within a period of sixty days. The said notice was served upon the writ petitioner no. 1 on 7th March, 2006 which will be evident from relevant acknowledgement due card. Nevertheless the writ petitioners turned a deaf ear to the demand notice made by the respondents for repayment of the loan and as a result the respondents were compelled to invoke the provisions laid down under Section 13(4) of the SRFAESI Act, 2002. Under the circumstances the respondents have taken recourse to the relevant provisions of the Act by publishing necessary advertisement in the leading newspaper for sale of the mortgaged property and rightly invited offers from intending purchasers. In fact on receipt of the notice under Section 13(2) of the Act on 7th March, 2006 the petitioner was bound to repay the loan amount within a period of 60 days and thereafter the respondent bank has taken recourse to the provisions laid down in Section 13(4) of the Act which is not illegal. The notice published by the bank for sale of the mortgaged property is in exercise of its statutory powers for recovery of the outstanding dues and as such there is no merit in this writ application which is liable to be dismissed in liminie with exemplary costs.

(3.) From the averment so made by the parties it is now to be decided, a) Whether the instant process of disposal of the mortgaged property has been undertaken by the respondent without proper service of notice upon the writ petitioners; b) Whether alternative remedy is available to approach the Debts Recovery Tribunal for the remedies sought for; AND c) Whether the action taken by the respondents under Section 13(2) and 13(4) of the SRFAESI Act, 2002 is contrary to law.