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Jharkhand High Court · body

2011 DIGILAW 58 (JHR)

Navin Kishore Sahay v. Allahabad Bank

2011-01-31

R.K.MERATHIA

body2011
Order Mr. Deepak Roshan, learned counsel appearing for the petitioner referred to Clause-8 of the Tripartite Agreement entered into between him, (Flat owner), the bank and the builder, which reads as follows: 8. The Developer/Promoter hereby expressly gives consent to the effect that the bank shall have lien on the aforesaid flat/apartment and the Borrower may furnish the said flat as a security for the loan to be obtained by him from the bank and he may create a mortgage of the same in favour of the Bank." 2. He submitted that only lien was created which is exempted under Section 31 of the SARFAESI Act. He further submitted that installment amount has been deducted from the salary of the petitioner by his employer-Cognex Pharma Ltd., from the month of April, 2007 to February, 2010, which will appear from his pay slips but the bank has not updated the Pass-Book, which could support the said contention that installment were paid by the petitioner through his employer. 3. On the other hand, Mr. R.R. Nath, learned counsel appearing for the bank, submitted that the employer of the petitioner has not deposited the installments with the bank and the bank can supply the statement of accounts to the petitioner in support of such contention. He also referred to Section 2(zf) of SARFAESI Act, which reads as follows:- "Security Interest" means right, time and interest of any kind whatsoever upon property, created in favour of any secured creditor and includes any mortgage, charge, hypothecation, assignment other them those specified in Section 31." He submitted that as per the aforesaid Clause-8 of the Tripartite Agreement, Developer/Promoter consented that the bank shall have lien on the flat/apartment but the petitioner being borrower was required to mortgage the said flat with the bank as security for the loan, which he failed to do and, therefore, he cannot be allowed to raise the said contentions. He further submitted that if the petitioner is ready to pay the up-to-date outstanding as per the calculation of the bank and if the flat in question is mortgaged by the petitioner, the bank may restructure the loan. 4. I find force in the submissions of Mr. Nath, that the petitioner cannot •take advantage of his own wrong. Admittedly, he did not comply with the Clause-8 of Tripartite Agreement. It is the Developer/Promoter who consented to lien and not the petitioner. 4. I find force in the submissions of Mr. Nath, that the petitioner cannot •take advantage of his own wrong. Admittedly, he did not comply with the Clause-8 of Tripartite Agreement. It is the Developer/Promoter who consented to lien and not the petitioner. The petitioner .was required to mortgage the flat as security. The petitioner, cannot rely on Section 31 of the SARFAESI Act, especially in view of Section 2(zf). 5. On this, Mr. Roshan, learned counsel appearing for the petitioner submitted that the petitioner is ready to pay up-to-date outstanding and mortgage the flat with the bank. 6. Accordingly, the petitioner will appear before the Branch Manager of the Bank on or before 7th February, 2011. The Branch Manager will supply him the detail of calculation of the outstanding dues till February 2011 alongwith statement of his account. By 28th February, 2011, the petitioner will pay the outstanding dues as per the calculation of the bank and will mortgage the flat in question with the bank. By 7th March, 2011, the bank will inform the petitioner about restructuring of the up-to-date loan amount, which the petitioner will pay accordingly. If the petitioner fails to comply with any part of this order, this writ petition shall stand dismissed and the bank will be entitled to proceed against the petitioner in accordance with law. With these observations and directions, this writ petition stands disposed of. Let a copy of this order be handed over to the parties, as prayed.