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2012 DIGILAW 1068 (KER)

AMBIKA B. v. STATE BANK OF INDIA

2012-12-07

T.R.RAMACHANDRAN NAIR

body2012
JUDGMENT This writ petition is filed by the petitioner, aggrieved by the recovery being effected from his salary. 2. Petitioner is employed in Keltron. During 2005 she availed a housing loan of ` 3 lakhs from the 1st respondent by creating equitable mortgage over her 2 = cents of property and a house therein, near Pallivilla Junction, Thiruvananthapuram. When there is a failure to honour the payment of the monthly instalment, the account was declared as NPA and proceedings were initiated under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. A notice was issued under section 13(2) of the Act. Further notice was issued as per Ext.P1 under section 13(4) of the Act. In completion of the proceedings, physical possession of the property has already been taken. In the meanwhile, the 1st respondent asked the 3rd respondent, salary disbursing officer of the petitioner, to recover an amount of `3,600/- from the salary of the petitioner and the outstanding dues is `7.5 lakhs. Ext.P3 is the communication and the petitioner was intimated by Ext.P4 that it will be implemented from the month of September, 2012 onwards. 3. This Court while admitting the writ petition on 8-10-2012, passed an interim order not to transfer the recovered amount to the bank. A statement has been filed on behalf of respondents 1 and 2 and a reply affidavit has been filed by the petitioner. It is averred by the bank that at the time of granting the loan, a salary certificate was produced by the petitioner as Ext.R1(a). Ext.R1(b) is the agreement executed by the petitioner. The petitioner has been very ir-regular in making payment also. Finally, proceedings were initiated under the SARFAESI Act and mortgaged property was taken in possession. The petitioner has authorized the bank by Ext.R1(c) for initiating steps for recovery also. 4. It is also stated that the mortgaged property comprises of a small house with a compound wall and there is a dispute in respect of the area of construction and the secured asset has been valued at `4 lakhs only whereas total liability of the petitioner to `7.6 lakhs as on 30-9-2012. 5. Learned counsel for the petitioner submits that rather than recovering from the monthly salary, the bank is entitled to sell the property taken in possession. 5. Learned counsel for the petitioner submits that rather than recovering from the monthly salary, the bank is entitled to sell the property taken in possession. It is further submitted that as far as the recovery from the salary is concerned, the petitioner has not executed any authorization enabling the employer to recover and pay the same to the bank and therefore, the agreement alone will not help the bank to enforce the recovery. 6. Learned standing counsel for the bank submits that the terms of the agreement are clear and therefore the argument cannot be sustained. 7. In Ext.P3 the bank has required the employer to take steps to see that recovery is effected. A reading of clause 'e' of Ext.R1(b) is therefore required to understand the scope of the agreement. The same is extracted below: "e. I/We shall arrange for the payment of the equated monthly installment from my/our monthly salary or in whatever manner deemed fit* or by debit on the due dates from the Current/Savings Bank account with Branch/or any other Branch where I/we may hold the account singly or jointly and to appropriate the account singly or jointly and to appropriate the same in repayment of the said loan and interest. (* Delete if not appropriate). I/We shall execute in favour of the Bank, a letter of authority, addressed to my/our employees to recover and pay to the Bank the equated monthly installment from my/our salary every month*. (*Delete if not applicable)" 8. In fact a letter of authority is required to recover and pay to the bank monthly instalments and the same is absent. Therefore, the agreement itself will not enable the bank to effect recovery from the salary of the petitioner. In fact the stand of the bank, as pointed out by the learned standing counsel, is that clause 'e' itself will enable the bank to recover, but in the light of the fact that a further letter of authority is provided, the same is mandatory. Therefore, the remedy of the bank will be to approach the Debt Recovery Tribunal under section 19 of the relevant Act. They can also sell the mortgaged property under the SARFAESI Act. 9. Therefore, leaving open the remedy of the bank to take steps for enforcing the liability by other means, the writ petition is disposed of. Therefore, the remedy of the bank will be to approach the Debt Recovery Tribunal under section 19 of the relevant Act. They can also sell the mortgaged property under the SARFAESI Act. 9. Therefore, leaving open the remedy of the bank to take steps for enforcing the liability by other means, the writ petition is disposed of. It is made clear that the request of the bank for recovery from the salary will not be proceeded by the employer of the petitioner.