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2010 DIGILAW 1426 (CAL)

Debasree Das v. The State of West Bengal

2010-12-10

BHASKAR BHATTACHARYA, SAMBUDDHA CHAKRABARTI

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Judgment :- Bhaskar Bhattacharya, J.: This Mandamus-Appeal is at the instance of an unsuccessful writ petitioner and is directed against an order dated July 6, 2010, passed by a learned Single Judge of this Court by which His Lordship dismissed the writ application with a finding that IDBI Home Finance Ltd., one of the respondents, took possession of the property in question in exercise of its statutory right as the secured creditor under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred to as the Act) and as such, the remedy of the writ-petitioner lay before the Debt Recovery Tribunal under Section 17 of the Act. Being dissatisfied, the writ-petitioner has come up with the present mandamus appeal. According to the writ-petitioner, one Uttam Mondal took loan from the Manager HSBC Ltd. for purchasing the flat in question at the ground floor of premises No.9A Canal Road from one Debasis Roy, the owner of the flat and a deed was also registered in favour of the said person by the owner-vendor of the said flat on 28th July, 2004. The said Uttam Mondal having failed to repay the loan, the concerned Bank issued a demand notice under Section 13 of the Act and ultimately, took possession of the said flat in exercise of power conferred under Section 13(4) of the Act as the said flat was mortgaged with HSBC Ltd as condition of loan. The notice of taking possession was also published in the news papers, viz. Hindustan Times and Ajkal. The said flat having been advertised for sale according to the provision of the Act at the instance of the HSBC Ltd., the writ-petitioner after having responded to the notice of the sale, purchased the said flat from the concerned Bank, viz. HSBC Ltd. vide deed of purchase dated 24th December, 2008 and since the date of purchase, she was in peaceful possession of the said flat. All of a sudden, on 15th February, 2010 some persons of IDBI Home Finance Ltd. claimed that the said flat was charged under a loan which was disputed by the writ-petitioner but in spite of that the IDBI Home Finance Ltd. forcibly took possession of the said flat in exercise of the purported power under Section 13 of the Act. All of a sudden, on 15th February, 2010 some persons of IDBI Home Finance Ltd. claimed that the said flat was charged under a loan which was disputed by the writ-petitioner but in spite of that the IDBI Home Finance Ltd. forcibly took possession of the said flat in exercise of the purported power under Section 13 of the Act. According to the writ-petitioner, neither the writ-petitioner nor his predecessor had ever entered into any agreement with the IDBI Home Finance Ltd., nor did they mortgage the said property in its favour. As indicated earlier, the learned Single Judge without entering into the aforesaid question decided to dismiss the writ-application on the very first day on the ground of existence of an efficacious alternative remedy under the Act. In this appeal, we called upon the IDBI Home Finance Ltd. to place before us the materials on the basis of which it exercised its supposed power under Section 13(4) of the Act. Pursuant to such direction, the IDBI Home Finance Ltd. has affirmed an affidavit and it appears from the said affidavit that one Goutam Kumar Bose and another Bharati Rani Bose for the purpose of purchasing the selfsame flat, took loan of Rs.5 lakh by a sanction-letter dated 30th June, 2004 with an agreement to mortgage the flat as condition of repayment of the loan in its favour. However, the said Goutam Kumar Bose and Bharati Rani Bose did not pay off the amount nor did they purchase the flat and at the same time, no deed could be produced showing that the then lawful owner of the property ever mortgaged the same in favour of the IDBI Home Finance Ltd. In view of the aforesaid fact, we find that there was no valid mortgage in favour of the IDBI Home Finance Ltd. in respect of the flat in question either at the instance of the writ-petitioner or his predecessor, who was undisputedly the owner of the property. The IDBI Home Finance Ltd., as it appears from record, on the basis of an agreement with two persons, viz. The IDBI Home Finance Ltd., as it appears from record, on the basis of an agreement with two persons, viz. Goutam Kumar Bose and Bharati Rani Bose, exercised its alleged right under Section 13 of the Act although by virtue of such agreement no such right accrued in its favour as at the time of entering into such agreement or even subsequently, those two persons never acquired any title to the said flat from the lawful owner. We are of the view that in the facts of the present case where a citizen of India has been harassed in this way and was dispossessed from his lawful property at the instance of a financial institution who had acquired no interest over the property in question so as to enable it to exercise power conferred under Section 13(4) of the Act, such a citizen is not required to go to the alternative remedy provided under Section 17 of the Act. In the case before us neither the writ-petitioner nor her predecessor had ever secured the property in favour of the IDBI Home Finance Ltd. and as such, its act was on the face of it was without jurisdiction. Therefore, this is not a case of adjudication of a disputed question of fact but on the face of defence made out by the IDBI Home Finance Ltd. itself, it appears that it had no subsisting valid mortgage in respect of the property in question and thus it is a fit case of interference under Artilce 226 of the Constitution of India. If a writ-petitioner, an owner of the property, alleges that notwithstanding the fact that he or his predecessor never mortgaged the property in question but in spite of such fact, a financial institution or bank has sought to exercise or has already exercised its power under Section 13 of the Act, it is the duty of the writ court to ascertain the defence of such bank or financial institution in this regard and if it appears that on the face of the defence taken by it, there was no valid encumbrance created over the property in question at the instance of the writ petitioner or his predecessor, the then lawful owner, in favour of the bank or the financial institution, to grant relief to the writ-petitioner and to reject the defence of the bank or the financial institution that the writ-petitioner has alternative remedy under Section 17 of the Act. In case of an unauthorised act not approved by the Statute which is apparent on the face of the defence taken, the alternative remedy is no bar in entertaining the writ-application. The position, however, would have been different, if taking of loan from the bank or financial institution by mortgaging the property is admitted but dispute is raised as regards the quantum of amount payable. In those types of the cases, a writ-court should refuse to entertain the writ-application on the ground of existence of the alternative remedy for resolving the dispute of the quantum. We, therefore, dispose of the writ-application itself on the basis of the defence made out by the IDBI Home Finance Ltd. itself and hold that the said respondent had no authority to exercise power under Section 13(4) of the Act in respect of the property in question and we, accordingly, direct the respondent No.2 to return the flat in question to the writ-petitioner within a week from today. We also direct the respondent No.2 to pay damages of Rs.1 lakh to the writ-petitioner for illegal dispossession from her lawfully acquired property. This order will not prevent the writ-petitioner from filing separate suit for recovery of damages if she is of the view that the actual amount of damages suffered by her is more than Rs.1 lakh. The order impugned is, consequently, set aside and the writ-application is also disposed of in terms of the above order. This order will not prevent the writ-petitioner from filing separate suit for recovery of damages if she is of the view that the actual amount of damages suffered by her is more than Rs.1 lakh. The order impugned is, consequently, set aside and the writ-application is also disposed of in terms of the above order. In view of the disposal of the appeal, the connected application has become infructuous and the same is disposed of accordingly.