Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 179 (RAJ)

Prajesh Swami v. Manager, ICICI Home Finance Company Ltd.

2011-01-25

AJAY RASTOGI

body2011
JUDGMENT 1. - Instant petition has been filed by the petitioner who is principal borrower assailing the proceedings initiated by respondent-financial institution (secured creditor) under section 13(2) & (4) of the Act,2002. It has been alleged in the writ petition that petitioner along with his wife as co-applicant took loan after mortgaging their residential property with the financial institution-respondent and credit facility amounting to Rs. 33,33,000/- was sanctioned for a term loan under 120 monthly instalments of Rs. 48,788/- each at floating rate of interest. However, on committing default in making payment of regular instalment respondent made their account NPA and sent a notice under section 13(2) of the Act which was served upon the petitioner on the address shown in the loan application form furnished but it could not be served and was published in newspaper on 22.08.2010. However, pursuant thereto the petitioner did not submit any written objection under section 13(3A) of the Act within the statutory period provided under the Act. It appears from the record that prior thereto the petitioner through his counsel served a legal notice dated 30.06.2010 (Annx.4), which was responded by the respondent by filing para-wise reply (Annx.5) but before the respondent proceeded further after expiry of statutory period of sixty days under section 13(2) of the Act, the petitioner approached this Court by filing instant petition. 2. It has come on record that during pendency of the proceedings, notice under section 13(4) of the Act has also been published by the respondent in the newspaper and opportunity was granted to the petitioner to repay the loan within a further period of thirty days. 3. Counsel for petitioner submits that due drawn statement of account has not been furnished to the petitioner and he is completely unaware of the basis on which outstanding dues referred to by the respondent in the notice published have been computed. He further submits that reasonable opportunity of hearing of submitting objections provided under section 13(3A) of the Act was also not afforded to him, in absence whereof action of the respondent is in violation of principles of natural justice. 4. He further submits that reasonable opportunity of hearing of submitting objections provided under section 13(3A) of the Act was also not afforded to him, in absence whereof action of the respondent is in violation of principles of natural justice. 4. Under the scheme of the Act of 2002, the borrower/guarantor on committing default in repayment of secured debt or any instalment thereof, his account can be classified by the secured creditor as non-performing asset (NPA) and thereafter the secured creditor can proceed further by serving notice under section 13(2) of the Act and after such notice being published, the borrower/guarantor has opportunity to submit written objections under section 13(3A) and if such objections being filed within a period of sixty days the secured creditor/financial institution is under legal obligation to decide the same within a week of receipt of such objections and thereafter can proceed further under section 13(4) of the Act. At the same time, this Court would like to observe that after the notice being published under section 13(4) of the Act the borrower if aggrieved by the measures adopted by the secured creditor can certainly avail the remedy provided under section 17 of the Act. 5. In the instant case, despite the notice under section 13(2) of the Act being served upon the petitioner and finally published in newspaper on 22.08.2010, the petitioner failed to submit his written objections within statutory period of sixty days provided under the Act and much after the expiry of statutory period a further notice was published under section 13(4) of the Act on 15.12.2010 granting further opportunity to the petitioner to repay the outstanding dues of his loan. At this stage if the petitioner feels aggrieved by any of the action of respondent initiated under the Act of 2002 effective remedy is available to him by approaching the Debts Recovery Tribunal under section 17 of the Act of 2002. 6. At this stage if the petitioner feels aggrieved by any of the action of respondent initiated under the Act of 2002 effective remedy is available to him by approaching the Debts Recovery Tribunal under section 17 of the Act of 2002. 6. The submission made by counsel for petitioner that fair opportunity of hearing has not been afforded to the petitioner is of no substance for the reason that once the notice was published in newspaper under section 13(2) of the Act on 22.08.2010, ample opportunity was available to him to submit written objections within the statutory period of sixty days which he failed to avail and if that be so the respondent was within its rights to take further action provided under section 13(4) of the Act. At the same time, this Court would like to observe that apart from the proceedings provided under the Act of 2002 of submitting objections pursuant to notice under section 13(2) of the Act being published, the reply sent by the respondent pursuant to the legal notice which was sent by the petitioner through his counsel, appears to be well founded in regard of committing default by the petitioner and failed to regularise his account which was declared as NPA. Taking note thereof, the petitioner cannot be said to be justified in raising his grievance that he has been deprived of affording reasonable opportunity of hearing in raising written objections. 7. Counsel for petitioner further submits that statement of account itself has not been furnished to the petitioner, in absence whereof he is completely unaware of the total sum which has been assessed to be repaid by the petitioner. 8. This Court finds substance in the submission made and if that be so the respondent may provide him due statement of account within a period of seven days. 9. In view of effective remedy of appeal being available to the petitioner under section 17 of the Act, this Court is not inclined to interfere in the proceedings impugned in the instant petition. 10. Consequently, the writ petition is hereby dismissed. However, the respondent may serve/supply him due statement of account within seven days from today and the same may also be sent at the address which he mentioned in his loan application form. No cost.Writ Petition Dismissed. *******