M/S. INDIAN INSTITUTE OF PARAMEDICAL SCIENCES AND ANOTHER Vs. THE DEPUTY COMMISSIONER KATHUA AND OTHERS

JUDGEMENT

(1.) In this petition, filed under Article 226 of the Constitution of India read with Section 103 of the constitution of Jammu and Kashmir, the petitioners have craved the indulgence of this Court in granting them the following relief(s):

(2.) The facts as these stem out from the instant petition, are that the petitioner No.1 is the Chairman of Maha Laxmi Educational and Welfare Trust and the petitioner No.2 is the General Secretary of Maha Laxmi Educational and Welfare Trust and M/S Indian Institute of Paramedical Sciences, Village Padri Bala, Parole, Tehsil Parole, Distt. Kathua (J&K), which is a Unit of Maha Laxmi Educational and Welfare Trust. The petitioners availed a loan facility for an amount of Rs. 45 lacs from the respondent-Jammu and Kashmir Bank Ltd., Branch Officer, Parole, which was secured by the third party guarantee and primary and collateral security of Mortgage of properties. It is stated that due to some financial loss, the petitioners failed to pay instalments on time, as a consequence of which the respondent No. 4, through its attorney, filed a suit before the Court of learned District Judge, Kathua, which was decided in the Lok Adalat on 9th of January, 2017, in terms of the settlement arrived at between the parties. Thereafter, the petitioners were served a notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the Act). Subsequently, the petitioners made a representation on 11th of May, 2017, before the Chairman of the respondent Bank, requesting him to settle the petitioners? case under 'One Time Settlement Scheme' of the Bank and also to grant a time of one-year for the repayment of loan. The Chairman, J&K Bank, forwarded the application to Sh. Ashraf Ali (Vice-President, J&K Bank), who agreed to settle the petitioners? loan under 'One Time Settlement Scheme' and, the petitioners? loan was, ultimately, settled at an amount of Rs. 40.00 lacs (approximately). In pursuance of the aforesaid One Time Settlement Scheme arrived at between the parties, i.e. the petitioners and the Bank, the petitioners deposited an amount of Rs. 9,70,000/- (Rupees nine lacs and seventy thousand only) in the J&K Bank, Branch Nagri Parole, Kathua in the 'Loan Account' on 27th of June, 2017. The Respondent Bank accepted the aforesaid amount in terms of the aforesaid settlement. The respondent No.4, in the month of July, 2017, deducted an amount of Rs.l,30,000/-(rupees one lac thirty thousand only), from the Savings Bank account of the petitioner, namely, Madhu Sudan, and adjusted the same in the loan account of the petitioners illegally, without any authority and in violation of the terms and conditions of the loan agreement and other security documents. The petitioner No.2 in the month of December, 2017, deposited an amount of Rs. 56,400/-(fifty six thousand and four hundred only), through a cheque in the loan account for the liquidation of aforesaid loan with the J&K Bank, Branch Parole. The petitioner further approached the respondent No.4, in the month of September, 2017, for depositing the 2ndinstalment of an amount of Rs. 10,00,000/-(Rupees ten lac only), which was to be paid by the petitioner to the respondents, in terms of the settlement/agreement but to the utter surprise of the petitioner No.2, the respondent No.4 expressed his reluctance to accept its earlier commitments. The petitioners again approached the Vice President of the respondent Bank, at Srinagar, and submitted their claim of settlement/agreement entered into between the respondents and the petitioners, who assured the petitioners that they will honour the settlement, but nothing concrete was done till date, except the hollow assurances given by him to redress the grievance of the petitioners as per the 'One Time Settlement Scheme'. Despite repeated requests of the petitioners, the respondents did honour the settlement/agreement arrived at between the parties and, without affording any opportunity of being heard to the petitioners, proceeded further to issue the notice dated 17th of January, 2018, thereby taking the symbolic possession of the mortgaged property, belonging to the petitioners, constraining the petitioners to file the present writ petition for the above stated relief(s).

(3.) The moot question that arises for consideration in this petition is whether the same is, or is, maintainable in the present form. We have heard the learned counsel for the petitioner on that count and considered the material on record. 4. A notice under Section 13(2) of the Act was issued in favour of the petitioners by the respondent Jammu and Kashmir Bank on 4th of April, 2017. Prior to the date of the issuance of the notice under Section 13(2) of the Act, the respondent, Jammu and Kashmir Bank instituted a suit for the recovery of the amount from the petitioners in the Court of learned Principal District Judge, Kathua, which came to be decided and determined by an order dated 9th of January, 2017, on the following terms and conditions: