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2005 DIGILAW 160 (UTT)

Alpana Shankar v. Union Bank Of India

2005-05-11

CYRIAC JOSEPH, M.M.GHILDIYAL

body2005
JUDGMENT Cyriac Joseph, C.J. 1. The petitioner was sanctioned a housing loan by respondent No. 1-Union Bank of India in the year 1999 and the amount was disbursed to her. She could not repay the loan amount in terms of the agreement. According to the petitioner, the loan amount could not be repaid in terms of the agreement due to failure of business and due to some family problems. The respondents issued to the petitioner a notice dated 9.10.2003 under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 directing her to pay a sum of Rs. 15,73,644.00 together with interest from 1.8.2003 with monthly interests as per the terms and conditions of the loan document executed by her and to discharge her liabilities in full within 60 days from the date of receipt of the notice, failing which the Bank would be constrained to enforce the securities created by her in favour of the Bank by exercising the rights given under the said Act. However, the petitioner did not discharge her liabilities in full within sixty days from the date of receipt of the said notice. Though the petitioner deposited a sum of Rs. 3,00,000/- on 19.3.2004, the respondents through Annexure 2 letter dated 1.5.2004 informed the petitioner that unless and until she deposited the full amount as required in the notice dated 9.10.2003, the Bank will be constrained to enforce the securities created by her. It was also stated in the letter dated 1.5.2004 that the petitioner's request for waiving the interest and granting six months' time to discharge the liabilities and for releasing one of the properties mortgaged with the Bank cannot be considered. It was further stated in Annexure 2 letter that if the petitioner did not deposit the entire amount within seven days (latest by 8.5.2004), the Bank will be at liberty to initiate legal action for recovery as per rights available to the Bank, Thereafter, in December, 2004, the petitioner filed this writ petition praying for direction to the respondents to allow the petitioner to repay the outstanding amount of the respondents in six quarterly instalments. It was also prayed that the respondents be directed not to take possession of the mortgaged properties or to sell them in auction. 2. It was also prayed that the respondents be directed not to take possession of the mortgaged properties or to sell them in auction. 2. When this case came up for consideration on 24.12.2004, after hearing learned Counsel for the petitioner and Counsel for the respondent the Court directed the petitioner to pay the amount in six instalments and the respondent was directed to fix the amount of instalments. The Court also directed to post the case for admission in the month of April 2005. When this case came up for further consideration on 13.4.2005, at the request of learned Counsel for the petitioner it was adjourned to 27,4.2005. On 27.4.2005, learned Counsel for the petitioner was not in a position to state whether the Bank had fixed the amount of instalments and whether the petitioner had paid any instalment. However, learned Counsel for the respondents submitted that in compliance of the Court's order dated 24.12.2004, instalments were fixed by the Bank, but the petitioner did not pay even a single instalment. Learned Counsel for the petitioner sought time to verify the position. Hence, the case was adjourned. 3. Today, neither the Counsel for the petitioner nor the Counsel for the respondents is in a position to make a clear statement as to whether the petitioner paid the amount of instalments fixed by the Bank. Hence, we proceed lo consider the claim of the petitioner in the writ petition on merits. 4. The petitioner does not dispute her liability to repay the loan amount as per the terms and conditions of the agreement. No legal contention is raised in the writ petition to support the prayer for a direction to the respondents to allow the petitioner to repay the outstanding amount in six quarterly instalments. The relationship between the petitioner and the respondent Bank is governed by the terms and conditions of the agreement executed by the petitioner at the time of availing the loan from the Bank. The petitioner is not entitled to be discharged from the liability under the said agreement. The relationship between the petitioner and the respondent Bank is governed by the terms and conditions of the agreement executed by the petitioner at the time of availing the loan from the Bank. The petitioner is not entitled to be discharged from the liability under the said agreement. Even if the claim of the petitioner that the amount of loan was not repaid in terms of the agreement due to failure of business and family problems is correct, it cannot justify any order of the Court in exercise of the jurisdiction under Article 226 of the Constitution of India to compel the respondent Bank to allow the petitioner to repay the amount in six quarterly instalments as prayed by the petitioner. It is for the petitioner to approach the Bank for further indulgence and it is for the Bank to consider such request, if possible sympathetically and favourably. The Court cannot step into the shoes of the Bank for showing sympathy and compassion. 5. Admittedly, the petitioner was given notice under Section 13(2), of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. If the petitioner failed to discharge the liabilities within sixty days, the respondent Bank is entitled to take recourse to one or more of the measures mentioned under Section 13(4) of the said Act to recover the secured debt. If the petitioner is aggrieved by any such action taken by the Bank under Section 13(4) of the Act, the petitioner has a right of appeal to the Debts Recovery Tribunal under Section 17 of the said Act. From the averments made in the writ petition, It is not clear whether the respondents have taken any action under Section 13(4) of the Act. If any such action has already been taken or as and when such action is taken, the petitioner can approach the Debt Recovery Tribunal under Section 17 of the Act for redressal of her grievance. For this reason also, this Court cannot interfere in the matter in exercise of the power under Article 226 of the Constitution of India. Unless there are extreme and compelling circumstances, the High Court cannot exercise jurisdiction under Article 226 of the Constitution of India when the party has got an effective alternate remedy available under the Statute. For this reason also, this Court cannot interfere in the matter in exercise of the power under Article 226 of the Constitution of India. Unless there are extreme and compelling circumstances, the High Court cannot exercise jurisdiction under Article 226 of the Constitution of India when the party has got an effective alternate remedy available under the Statute. The petitioner has not made out any such extreme and compelling circumstance to persuade this Court to exercise the jurisdiction under Article 226 of the Constitution of India. 6. In the above circumstances, the writ petition is dismissed.