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Akhil Bandhu Saha v/s The Branch Manager, State Bank Of India & Others

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

    F.M.A. Nos. 998 of 2012 & 903 of 2013 with CAN 5283, 5616 of 2012 (Appellate Side)

    Decided On, 18 April 2013

    At, High Court of Judicature at Calcutta


    For the Appearing Parties: Akhil Bandhu Saha, Goutam Dey, Anindya Sundar Das, Soumayjit Das Mahapatra, Sudeep Pal Chowdhury, Advocates.

Judgment Text

Ashoke Kumar Dasadhikari, J.

The subject matter of appeal relates to an order of the learned Single Judge refusing to entertain the writ petition filed by the writ petitioner with a prayer to release the movable and immovable assets not hypothecated and mortgaged to the respondent bank, to allow him to operate the locker with the Bank and give appropriate accounts of loan amount Rs.9,75,152.37/- after adjustment of matured value of fixed deposits Rs.4,40,00 and for releasing all security assets held since 11th December, 2003 on complete realization of the loan of Rs.9,75,152.37. The appeal arose against the judgment and order dated 17th April, 2012.

The writ petitioner was carrying on business in the name of East India Chemical Products and East India Trading Company. State Bank of India Ektiashal Branch sanctioned credit facilities in favour of East India Trading Company to the tune of Rs.5,00,000/- against STDR value Rs.50,900/- and Rs.75,000/- as collateral security with equitable mortgage property of Hyderpara in the District of Jalpaiguri. Similarly, credit facilities were also sanctioned by the Bank Authorities in favour of East India Chemical Products i.e. cash credit to the tune of Rs.3,00,000/-, clean medium loan to the tune of Rs.1,95,000/- and medium term loan for Rs.95,000/- against STDR of Rs.1,00,000/- as collateral security and by creating equitable mortgage in respect of 30 cottah of land at Dabgram in the District of Jalpaiguri. A loan of Rs.40,000/- was also sanctioned in favour of the petitioner for purchasing a motor cycle. The petitioner failed to repay the aforementioned loans and the Bank issued a notice upon the petitioner under Section 13 (2) of the SARFAESI Act with regard to outstanding dues in the name of East India Trading Company and took over the possession of mortgaged property at Hyderpara on 13th December, 2003. Writ petition being W.P. No.1384 (W) 2004 was moved, inter alia, challenging the steps taken by the Bank Authorities under the SARFAESI Act. The writ petition was dismissed by this Hon’ble Court on 21st September, 2004 giving opportunity to petitioner to apply before the Debts Recovery Tribunal and an order was also passed directing the Bank to return the house hold articles of the petitioner lying with the Bank. Contempt application was filed for non-compliance of the order. Special Officer was appointed and ultimately non-mortgage goods were returned by the Bank to the petitioner. Thereafter contempt application was filed which was withdrawn with leave to file afresh. Pursuant to leave granted, another contempt application was filed and this Hon’ble Court directed Inspector General of Police (N) to submit a detail report as regards the writ petitioner’s complaint. Chief Manager State Bank of India was also directed look into the matter and make an enquiry and file a report before this Court. Reports were filed stating that the goods have already been returned in terms of the order and accordingly third contempt application was also dismissed. It was clarified in the order that the said order would not stand in the way of the petitioner to take any further step before the appropriate forum in accordance with law.

Bank Authority issued sale notice in respect of secured assets in question and the said notice was challenged by the petitioner in W.P. No.3624 (W) of 2007 before this Court the said writ petition was again dismissed on 4th July, 2008 on the ground that the earlier writ petition had been dismissed with liberty to the petitioner to approach the Tribunal. This order was challenged before the Hon’ble Division Bench. The Hon’ble Division Bench also dismissed the appeal on 25th September, 2008 with a direction that the petitioner will be liberty to seek remedy in accordance with law. This is the third writ application moved by the writ petitioner, inter alia, praying for return of non-mortgage goods, permission to operate his locker, settlement of his accounts and other reliefs. One application being C.A.N. No.6732 of 2012 was also filed praying for interim direction to Bank to return keys of the locker to the petitioner. The Hon’ble Single Judge upon hearing the parties dismissed the petition holding that the issues were decided in the earlier writ petitions and nothing new is there to decide. The writ petition is barred by principles of res judicata.

Initially writ petitioner himself appeared and argued the matter in person but subsequently some learned Lawyers assisted him and made some arguments. The petitioner submitted that he visited the Branch and found locker is broken and nothing is inside. He submitted that the Bank has wrongfully sold the mortgage property without proper assessment made by any Chartered Valuer and also without fixing the base price before holding the sale. There is no account of sale proceeds. The writ petitioner pointed out that the Bank Authorities on different occasion mentioned different amounts as their claim. He drew our attention to a letter dated 23rd December, 2005 wherein the Bank Authorities informed petitioner’s learned Advocate that total outstanding would amount to Rs.9,09,128.15/-. Again the Bank by their letter dated 23rd April, 2006 informed the petitioner that the total outstanding as on 31st March, 2006 would amount to Rs.9,92,577.15/- to be paid by petitioner. Thereafter by another letter dated 9th April, 2008 it was informed by the Bank that Bank wanted to compromise the dues to the tune of Rs.1,42,48,948.06/- at Rs.11,00,000/-. Again by a letter issued on 9th June, 2008 the Bank communicated total outstanding of Rs.6,53,496.61/-. There are several communications sometime lakhs and sometime crores but without any basis and/or proper calculation. Writ petitioner submitted that the Bank Authorities did not give the actual figure to him after adjustment of fixed deposits which were lying with the Bank. It was also submitted, suit was also filed for recovery of Rs.6,00,000/- and odd and the said suit is still pending. It was further submitted that the price of the immovable property mortgage to the Bank was much more than the loan amount of Bank. Bank Authorities always kept the writ petitioner in dark and they did not give proper accounts what was the actually due and what they had received by selling the property and the balance to be received by him. According to him, the immovable property that was mortgaged by the Bank, were all valuable properties and in one case about 22 big has of land was mortgaged and the property value per cottah of that area was not less than Rs.3,00,000/-, therefore, for a meager sum of the loan amount including the interest Rs.9,75,152.37/- the entire property was sold at a throughway price without following the procedure and norms and also without any information to the petitioner. He would submit that the action of the Bank was illegal, unfair and they being authority under Article 12 of the Constitution of India were required to act fairly and reasonably and obliged to give all details about the loan amount fallen due. It was submitted, there was no necessity of selling the entire property. The respondent Bank could have sold a portion of the property which was required to saturate the loan amount but in the instant case the entire property was sold even without appropriate assessment of market value.

According to writ petitioner, there should be an enquiry by an independent body not less than a rank of Deputy General Manager of Reserve Bank of India upon giving the writ petitioner proper opportunity to produce documents and communication made by the Bank Authorities and also allowing him to inspect the documents and/or steps taken for sale of such property mortgaged for the aforementioned loan.

Learned Counsel for the Bank would contend, for self-same facts this was the third writ application moved by the writ petitioner. The petitioner had his remedy under Section 17 of the SARFAESI Act which he failed to avail, therefore, the writ petition must fail. In spite of having leave from this Hon’ble Court to avail appropriate remedy under the said Act, the petition did not apply before the Tribunal. The writ petitioner moved this Hon’ble Court twice before and also moved three contempt applications one after another and this was the third writ application asking similar relief that was not permissible. The writ petition was heard and the learned Court was of the view, the issues had already been decided in the earlier writ proceedings and the present writ petition was barred by principles of res judicata and accordingly the learned Single Judge was not inclined exercise his discretionary writ jurisdiction. He submitted, the properties had been sold by the Bank and the loan amount was adjusted and the balance amount was also credited to the petitioner’s Bank account. He submitted, the Bank Authorities had no objection to allow the writ petitioner to operate the locker and the key was not lying with the Bank.

On Court’s quarry, learned Counsel appearing for the Bank could not answer whether there was any proper valuation made by the Bank against the immovable properties mortgaged, by any Chartered Valuer before having auction and whether any base price was fixed for holding auction of the properties. There was also no answer, what was the actual due and for reimbursement whether the entire property was required to be sold. Learned Counsel could not answer why the Bank Authorities had issued different letters on different occasions, sometime claiming lakhs and sometime claiming crores.

We have very carefully considered the claim and contention of the writ petitioner. We are, in fact, not against the recovery of the Bank but there is an obligation upon the Bank to disclose the exact amount of liability which has fallen upon the petitioner which he is entitled to know. We do not find any reason as to why on the different communication, different amount was shown due. In one letter, it is more than one crore, in other two letters it is in lakhs. Further, a suit was also filed by the Bank for recovery of about six lakhs and odd. We also do not understand why the entire property of the petitioner was sold when Bank Authorities are claiming that the excess amount after adjustment was credited to the petitioner’s account. Petitioner has every right to know what amount was actually due and what adjustment was made by the Bank and what amount was received by Bank on sale of the property. Whether partial sale of property could have satisfied the dues after adjustment of fixed deposits.

In our view the earlier two writ petitions were in fact moved on different set of facts but in the instant proceedings writ petitioner has come up with subsequent events. He has questioned the action of the Bank in dealing with his loan account of which no detailed calculation was given after adjustment of the fixed deposits and did not value the property before sale and there is no proper assessment, whether sale of a portion of the property would have

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saturated the Bank dues. Therefore, it cannot be said, the issues were decided in earlier writ proceedings. In our considered opinion it is necessary to pass an order for holding an enquiry about the entire matter by an officer not less than the rank of Deputy General Manager of Reserve Bank of India. We, therefore, direct the Chief General Manager of Reserve Bank of India to appoint an officer not less than the Deputy General Manager to enquire into the entire matter and submit his report before the appropriate Authority of Reserve Bank of India. In the event report goes against the Bank, the appropriate Authority of Reserve Bank of India must take appropriate steps. The concerned officer is directed to give sufficient opportunity to the writ petitioner to present his case and also give opportunity to the Bank Authorities to produce all relevant records before the concerned officer. The order of the learned Single Judge is, therefore, set aside and the appeal as well as the writ petition is thus allowed. Let urgent Xerox certified copy of this judgment, if applied for, be given to the learned Advocates of the parties on usual undertaking. Ashim Kumar Banerjee, J. I agree.