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2016 DIGILAW 4 (UTT)

Sushil Kumar v. State of Uttarakhand

2016-01-05

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. Recall application, being MCC no. 860 of 2015, was dismissed for non-prosecution by this Court vide order dated 23.12.2015. It is the submission of learned counsel for the applicants / petitioners that when the case was called out, he was on his legs in another court. Being satisfied with the sufficiency of reasons thus furnished, restoration application MCC no. 12 of 2016 is allowed. As a consequence thereof, present writ petition alongwith recall application MCC no. 860 of 2015 is restored to its original number. 2. Recall application, being MCC no. 860 of 2015, was moved by the applicants/ petitioners on 21.12.2015 for recalling the order dated 17.12.2015, passed by this Court. It is prayed that the applicants/petitioners be granted some suitable time for the purpose of settling the bank dues by selling out the mortgaged property. The order dated 17.12.2015, passed by this Court runs as follows: “Mr. Manish Arora, Advocate for the petitioners. Mr. R. C. Arya, Standing Counsel for the State of Uttarakhand. Mr. S. K. Jain, Sr. Advocate assisted by Mr. Balvinder Singh and Mr. Siddharth Jain, Advocates for the respondent nos.2 & 3. By means of present writ petition, the petitioners seek to issue a writ, order or direction in the nature of certiorari quashing the impugned possession notice dated 21/24.09.2015 in respect of mortgaged residential properties of petitioner Nos. 2 to 4. It is also prayed to issue a writ or direction in the nature of mandamus directing the respondents not to proceed further pursuant to recovery proceedings initiated by respondent-bank. It is mentioned in para 1 of the writ petition that the respondents be directed to permit the petitioners to repay the loan amount in installments within the timeframe as deem fit by this Court. In this way, taking of loan by the petitioners is admitted. It is also admitted to the petitioners that they are ready to pay the loan amount, although, in installments. When the writ petition was taken for admission on 01.10.2015, the following order was passed by the coordinate bench of this Court: “Learned counsel for the petitioners submits that to show bona fide, petitioners shall deposit Rs. 50,00,000/- with the respondent no. 2 Bank on or before 10.10.2015 and shall deposit Rs. 50,00,0000/- more on or before 31.10.2015. In other words, petitioners shall deposit Rs. 50,00,000/- with the respondent no. 2 Bank on or before 10.10.2015 and shall deposit Rs. 50,00,0000/- more on or before 31.10.2015. In other words, petitioners shall deposit Rs. One Crore with the respondents Bank on or before 31.10.2015.” It is the submission of learned senior counsel for the respondent-bank that the petitioners have not shown their bonafide and, therefore, the writ petition be dismissed for non-compliance of order dated 01.10.2015. Learned counsel for the petitioners submits that the petitioners could not deposit amount as they themselves were not aware as to how much amount they were required to deposit. Any way, this Court is not inclined to enter into the controversy as to what amount was required to be paid by the petitioners. Suffice will it be to say for the disposal of the writ petition that the petitioners are ready to repay the loan amount to the respondent-bank in installments. Therefore, their innocuous prayer should be accepted. It is the submission of learned counsel for the petitioners that more than Rs.8 crores is due to the petitioners, which they are required to deposit in favour of the respondent-bank. The writ petition is, therefore, disposed of at the admission stage itself by directing that in order to show their bonafide, the petitioners shall deposit a sum of Rs.2 crores within a month from today and, thereafter, the balance amount shall be paid by them in ten equal monthly installments. In other words, the first monthly installment (i.e. Rs.2 crores) shall be paid by the petitioners on or before 16.01.2016 and the remaining monthly installments shall be paid on or before 16th day of each and every month. The respondent-bank shall pass a formal order fixing the monthly installments. The last such installments, i.e., 11th installment shall comprise of the balance amount. It is provided that if the petitioners make any default in payment of either of the installments within the stipulated time, the respondent-bank shall be at liberty to proceed against the petitioners for recovery of the amount in accordance with law. The impugned possession notice shall remain in abeyance so long as the petitioners continue to pay installments, as have been rescheduled by this Court as above. Let a certified copy of this order be supplied to the petitioners today itself on payment of usual charges.” 3. The impugned possession notice shall remain in abeyance so long as the petitioners continue to pay installments, as have been rescheduled by this Court as above. Let a certified copy of this order be supplied to the petitioners today itself on payment of usual charges.” 3. While seeking recall of order dated 17.12.2015, it is the submission of learned counsel for the recall applicants that the respondent bank has not complied with the provisions of Section 13(3A) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The applicants/petitioners have the intention to pay back the outstanding loan amount to the bank. Applicants/petitioners want some time so that they could find a solution and arrange for the fund, as they are not in a capacity to repay the same at the moment. The respondent bank has already taken the actual physical possession and has dispossessed the applicants/petitioners. It is the submission of learned counsel for the recall applicants that the respondent bank is trying to sell out the property on cheaper rates and, therefore, order dated 17.12.2015, be recalled. 4. Learned counsel for the respondent bank has vehemently opposed such a move of the applicants/petitioners by arguing that the recall application is mala fide and is not maintainable. 5. The order dated 17.12.2015 has already been reproduced here-in-above to show that in paragraph 1 of the writ petition itself a prayer has been made by the applicants/ petitioners that the respondents be directed to permit them to repay the loan amount in installments within the time frame as may be deemed fit by this Court. In this way taking of loan by the applicants/petitioners is admitted. It was also admitted to the applicants/ petitioners that they are ready to repay the loan amount, although in installments. Conceding to such innocuous prayer of the applicants/petitioners, order dated 17.12.2015 was passed by this Court facilitating payment by the petitioners to the respondent bank in installments. Now, by filing the recall application the petitioners cannot turn around and challenge the legality of the action or purported action taken by the respondent bank. 6. The applicants/petitioners cannot make out a new case. Petitioners want to argue the writ petition afresh under the garb of recall application, which is not permissible and is dismissed as such. 7. Now, by filing the recall application the petitioners cannot turn around and challenge the legality of the action or purported action taken by the respondent bank. 6. The applicants/petitioners cannot make out a new case. Petitioners want to argue the writ petition afresh under the garb of recall application, which is not permissible and is dismissed as such. 7. Let a copy of this order be supplied to learned counsel for the applicants/petitioners today itself on payment of usual charges.