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Madhya Pradesh High Court · body

2009 DIGILAW 381 (MP)

Ramjanki Rathore v. State of M. P.

2009-03-24

S.C.SHARMA

body2009
ORDER 1. The petitioner before this Court has filed this present writ petition being aggrieved by letter dated 17.6.2008 issued by the respondent-State Bank of India for taking coercive steps as the loan amount sanctioned to the petitioner has not been reimbursed. 2. The contention of the petitioner is that she has purchased a plot and for construction of house and the State Bank of India was approached for grant of financial assistance and necessary documents were signed by the petitioner. The petitioner has further stated that after signing of the documents she has not received the loan amount and in spite of this a notice was issued to the petitioner under section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The petitioner has further stated that she has approached Debt Recovery Tribunal, challenging the notice issued under section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Annexure P-7) and in spite of the fact that the matter was subjudice before the Debt Recovery Tribunal, Jabalpur, the respondents are taking steps to take possession of the house. The learned counsel for the petitioner has argued that without disbursement of loan amount the State Bank of India has no right to recover the loan amount. 3. The respondent-Bank has filed a return and it has been stated that the application for grant of assistance dated 28.1.2005 was processed and a term loan of Rs. 10,00,000/- was sanctioned to the petitioner. It has also been stated that the petitioner has executed term loan agreement with floating rate of interest and has also received the aforesaid amount and has constructed a house. The respondent-Bank has also stated that the petitioner though she has created equitable mortgage on 8.2.2005 has now taken a somersault and has stated that in her case no loan amount has been received by her. It has also been stated by the respondent Bank that a Civil Suit has been filed before the VIII Additional District Judge i.e. Civil Suit No. 31-N2007 for declaration of title and grant of perpetual injunction which is on record with an application for temporary injunction and also an application has been filed for stay of notice issued under section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The contention of the learned counsel for the respondent No.2 is that deliberately this writ petition has been filed knowing fully well that disputed question of facts cannot be decided by this Court. 4. Heard learned counsel for the parties at length and perused the 5. In the present case it is an admitted fact that notice was issued to the petitioner under section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the petitioner has approached Debt Recovery Tribunal, Jabalpur challenging the notice issued under section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the matter is still pending before the Debt Recovery Tribunal. The petitioner has also preferred an application for grant of stay before the Debt Recovery Tribunal, Jabalpur. Not only this, he has also filed a Civil Suit before the VIII Additional District Judge, Gwalior. The matter relating to grant of loan and the petitioner's allegation cannot be decided by this Court in the present writ petition as purely disputed question of facts are involved in the present case. The disputed facts involved in the present writ petition can be decided only after adducing and appreciating the evidence, the same can be done either by the Debt Recovery Tribunal where the petitioner case is pending or by the civil Court where the Civil Suit is pending. The apex Court in the case of Food Corporation of India v. Harmesh Chand, 2006 (7) SCC 654 has held that where disputed question of facts are involved in the matter, the same cannot be decided in a writ petition and the proper remedy in such cases is of filing a Civil Suit. In the present case as the matter involves purely disputed questions of facts and also keeping in view that the petitioner has availed an alternative remedy of filing an appeal before the Debts Recovery Tribunal, Jabalpur and also has availed a remedy of filing of a Civil Suit, the present writ petition deserves to be dismissed. No opinion is being expressed on merits and the writ petition is disposed of with liberty to the petitioner to prosecute the Civil Suit filed by her as well as to pursue the matter which is pending before the Debts Recovery Tribunal, Jabalpur. No opinion is being expressed on merits and the writ petition is disposed of with liberty to the petitioner to prosecute the Civil Suit filed by her as well as to pursue the matter which is pending before the Debts Recovery Tribunal, Jabalpur. The petitioner shall also be free to prefer appropriate interim application before the Debts Recovery Tribunal as well as before the civil Court in case any coercive action is initiated by the respondent Bank and Debts Recovery Tribunal as well as the civil Court shall pass necessary orders in accordance with law on the application preferred by the petitioner. 6. With the aforesaid observation, the present writ petition stands disposed of. Petition dismissed.