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2009 DIGILAW 684 (MP)

SUDHIR SHARMA v. STATE BANK OF INDIA

2009-06-16

K.S.CHAUHAN, KRISHN KUMAR LAHOTI

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Judgment ( 1. ) THIS appeal is directed against an order dated 12. 02. 2009 in W. P. No. 1632/09 by which the writ petition challenging the auction by respondent/bank for enforcing recovery under Section 13 (4) of the Securitization and reconstruction of Financial Assets and Enforcement of security Interests Act, 2002 (herein after referred to as act), was dismissed. ( 2. ) THE learned Single Judge found that the matter was agitated by the appellant before the District Consumer redressal Forum, Jabalpur; and District Forum vide its order dated 14. 07. 2008 (Annexure P-7) directed the builder Laxman singh Sengar for handing over possession of the constructed house to the appellant within period of 3 months in default of which, he was directed to return the amount of Rs. 3,50,000/- (Rs. Three Lacs Fifty Thousand) along with interest to the bank, but dismissed the claim of the appellant against the bank. The learned Single Judge found that the auction notice issued by the bank against the appellant can not be interfered and dismissed the writ petition. ( 3. ) THE appellant submitted that the respondent/bank paid amount of loan directly to the builder Laxman Singh Sengar without his consent and has initiated recovery proceedings against the appellant. Respondent No. 2 ought to have initiated recovery against respondent No. 4 who is liable for payment of the loan. Respondent No. 4 is liable to make payment of loan to the bank as possession of the house is not handed over to the appellant till today. Referring to order annexure P-7 it was submitted that after issuance of notice of this appeal to the respondent No. 4 this matter may be decided finally. ( 4. ) THE prayer of appellant was opposed by Shri Ashish shroti, learned counsel for the respondent No. 1 to 3 who submitted that as per the request and the authority from the appellant, the loan was disbursed to the builder. He referred to the documents Annexure R-1, an affidavit of the appellant and Annexure R-9 and 10 letters of appellant in support of this contention to the effect that after the consent and due authority from the appellant, the loan was disbursed to mr. Laxman Singh Sengar, Proprietor of M/s Bharat constructions. He referred to the documents Annexure R-1, an affidavit of the appellant and Annexure R-9 and 10 letters of appellant in support of this contention to the effect that after the consent and due authority from the appellant, the loan was disbursed to mr. Laxman Singh Sengar, Proprietor of M/s Bharat constructions. The recovery notice was issued by the bank to the appellant Annexure R-5 on 18th October, 2006, but no amount was paid, so the respondent has rightly proceeded under Section 13 (4) of Securitization and Reconstruction of financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as act ). It was further submitted that the learned Single Judge has rightly considered the matter and dismissed the writ petition. ( 5. ) FROM the perusal of the facts of the case, we find that appellant applied for sanction of loan for the construction of the house. The aforesaid loan amount was disbursed to respondent No. 4 as per document Annexure R/9 (cumulative ). There was a dispute in respect of not handing over the possession of the house to be constructed by respondent No. 4. So the appellant approached the District consumer Redressal Forum, Jabalpur by filing a complaint, which was decided in favour of the appellant by an order annexure P-7 dated 14. 07. 2008. Though it was dismissed against the bank but an order against respondent No. 4 laxman Singh Sengar was passed who was respondent No. 2 before the Consumer forum, thus:- 1. That Laxman Singh Sengar shall complete construction of the house on the disputed plot within 3 months and hand over possession to the complainant Sudhir Sharma. 2. In case of non construction of the house and handing over possession to Sudhir Sharma within a period of 3 months, Laxman Singh sengar shall pay Rs. 3,50,000/- (Rs. Three Lacs fifty Thousand) along with interests as charged by the bank on loan from the appellant. 3. That Laxman Singh Sengar shall pay rs. 2,000/- by way of mental sufferings to the complainant and alongwith cost of Rs. 1,000/ -. ( 6. ) THE aforesaid order was passed on 14. 07. 2008, but it revealed during the course of the arguments that such order has not been enforced by the appellant till date. 3. That Laxman Singh Sengar shall pay rs. 2,000/- by way of mental sufferings to the complainant and alongwith cost of Rs. 1,000/ -. ( 6. ) THE aforesaid order was passed on 14. 07. 2008, but it revealed during the course of the arguments that such order has not been enforced by the appellant till date. The dispute in this petition is in respect of recovery of the loan amount by bank by invoking provisions of Section 13 (4) of the Act. The learned Single Judge found that there was no fault on the part of the bank and the bank was within its right to enforce the recovery. ( 7. ) IN view of the aforesaid factual position, we do not find any error in the impugned order passed by the learned Single judge. So far as dispute between appellant and respondent no. 4 Laxman Singh Sengar is concerned, an adjudication has been made by the District Consumer Redressal Forum and the appellant is free to enforce the aforesaid order, which has not been enforced till date. And in this purpose we find it appropriate to allow 3 months time to the appellant to execute the order passed by the Consumer Forum. In view of the aforesaid, while dismissing this appeal on merits, we allow 3 months time to the appellant to take steps for enforcing the order of the Consumer Forum and make payment to the bank in respect of the amount in question. If an amount of Rs. 50,000/- is deposited by the appellant within a period of 30 days from today, the bank shall stay its hands for enforcing recovery for a period of further 3 months from the date of deposit. ( 8. ) WITH the aforesaid directions, this appeal is dismissed with no order as to costs.