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2008 DIGILAW 543 (PAT)

Kanhaiya Lal v. State Bank Of India

2008-03-26

NAVANITI PRASAD SINGH

body2008
Judgment 1. The petitioner was indebted to the respondent-Bank. The bank had taken out a shopkeepers insurance scheme for the hypothecated goods in the petitioners-shop. Petitioner reported theft and claimed about Rs. 4.80 lakhs before the Insurance Company. Insurance Company disputed the claim. Bank moved the certificate Court under the Public Demand Recovery Act. After hearing the objection of the petitioner the Certificate Court held the petitioner to be liable to pay the bank Rs. 7 lakhs by his order dated 10-2-2000. As petitioner was pursuing the insurance claim which was to accrue to the Bank, the Certificate Court directed the petitioner to pay the difference of the two that is the certificate amount as assessed and the insurance claim. Bank did not object to this order dated 10-2-2000 which attained finality. Thereafter, the Insurance Company repudiated the claim. Petitioner then approached the District Consumer Forum where again his claim was not accepted and petitioner has now filed an appeal before the State Commission for Redressal of Consumer Dispute which is pending. As the Consumer Forum dismissed the claim of the petitioner as against the Insurance Company, the petitioner then moved the Certificate Court for permission to deposit the entire amount and the permission was granted by order dated 10-9-2007 of the Certificate Court. Bank filed a review application which was rejected and then have now gone in appeal before the Collector of the district against the order of the Certificate Court dated 2-11-2007 being Appeal No. 2 of 2007. 2. Admittedly, there is no appeal against the original order passed in the year 2000 determining the liability. That order has attained finality and binds both Bank and the petitioner. The submission of the petitioner is that ignoring the said order Bank cannot move under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the "SARFAESI Act") for recovery of its dues. Once Bank had a statutory remedy and it availed it and let it attain finality, having thus taken the remedy to its conclusion its result cannot be discarded or ignored and proceedings afresh started under SARFAESI Act. 3. In my view, the principles of estoppel by conduct shall apply. Once Bank had a statutory remedy and it availed it and let it attain finality, having thus taken the remedy to its conclusion its result cannot be discarded or ignored and proceedings afresh started under SARFAESI Act. 3. In my view, the principles of estoppel by conduct shall apply. Bank is estopped from now ignoring the order they suffered and which attained finality with regard to dispute inter se that order binds both parties, it being an order competently passed by a competent Court in a competent jurisdiction. 4. Even otherwise under SARFAESI Act, Bank is entitled to move for recovery of "debt." Debt has been defined under S. 2(l)(ha). Debt shall have same meaning as assigned to it under Recovery of Debt Due to Banks and Financial Institutions Act. Section 2, sub-section (g) of the DRT Act defines a debt to mean inter alia, money payable under a decree or order of any Civil Court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on the date of the application. Thus, the liability intra party crystallised to what was found by the Certificate Officer and if at all it is only that liability that can persuade and nothing beyond that. The PDR Act itself provides the mode and manner of execution of the certificate for recovery of the dues. Even if the extended meaning of debt as given under SARFAESI Act is accepted, the proceedings can only be in relation to the certificate dues which as stated above was quantified at about Rs. 7 lakhs and not Rs. 27 lakhs as demanded in the notice under S. 13(2) of the SARFAESI Act. The petitioner has submitted that he is ready to pay the said certificate dues in its entirety within one month from today. All submissions of petitioner are correct and accepted. 5. In that view of the matter, if those dues are either paid to the bank or deposited in the Certificate Court, the certificate would stand satisfied and once the certificate is satisfied then nothing remains recoverable. Debt stands extinguished. 6. All submissions of petitioner are correct and accepted. 5. In that view of the matter, if those dues are either paid to the bank or deposited in the Certificate Court, the certificate would stand satisfied and once the certificate is satisfied then nothing remains recoverable. Debt stands extinguished. 6. On the aforesaid facts and legal situation, I am left with no option but to set aside the impugned notice as issued under S. 13(2) of the SARFAESI Act to the extent it is beyond what was ordered by the Certificate Court which order as stated above has attained finality as between the parties. 7. Let a writ be issued accordingly and all parties to abide by the order as aforesaid of payment within the period of one month of the aforesaid amount as indicated above. All proceedings would stand terminated. But, if the petitioner fails to pay the said amount within the period of one month then respondent-Bank would be at liberty to proceed in accordance with law. 8. The writ application is accordingly disposed of.