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2018 DIGILAW 1404 (GAU)

Rina Kalita v. UCO Bank Maligaon Branch

2018-09-20

A.K.GOSWAMI, AJIT BORTHAKUR

body2018
JUDGMENT : A.K. Goswami, J. Heard. Mr. A. Tiwari, learned counsel appearing for the petitioners. Also heard Mr. B. K. Sen, learned counsel appearing for the respondents. 2. Respondent No. 2 had availed a loan of Rs. 50 Lakhs from the respondent bank, which was sanctioned on 05.12.2013 and, for the said purpose, land belonging to the petitioner No. 1 was mortgaged. The petitioner No. 2 is a proprietorial firm of the son of the petitioner No. 1 and it carries on business of pharmaceutical items. The loan account of the petitioners became Non-Performing Asset (NPA) on 31.08.2015. Because of such default in payment of the equated monthly installments (EMI), a Demand Notice, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, "SARFAESI Act"), was issued to the petitioners. Thereafter, an e-auction notice was issued on 22.02.2016 as against which the petitioners filed an appeal under Section 17(1) of the SARFAESI Act before the Debt Recovery Tribunal (DRT), Guwahati Bench, which was registered as Application No. 22/2016, along with a Miscellaneous Application registered as M.A. No. 48/2016 praying for restraining the respondent bank from initiating any further steps pursuant to the e-auction notice dated 22.02.2016. 3. By an order dated 21.03.2016, the DRT, while restraining the respondent bank from taking any action pursuant to the e-auction notice dated 21.03.2016, directed the petitioners to pay a sum of Rs. 10 Lakh within seven days, i.e., on or before 30.03.2016, and the balance of the outstanding amount in eleven months @ 4.5 Lakh per month and the remaining amount, including interest, in twelfth installment. The petitioners deposited the amount of Rs. 10 Lakh on 30.03.2016. However, the petitioners did not pay the installments in terms of the direction of the DRT given in the order dated 21.03.2016. 4. By a notice dated 02.08.2016, issued by the respondent bank, the petitioners were directed to deposit the amount of Rs. 30,52,108.80/- along with interest and other charges before the e-auction. However, the petitioners did not pay the amount to the respondent bank and, on such default of the petitioners the respondent No. 1 had fixed the e-auction sale on 29.08.2016. A paper publication was also made to that effect on 28.07.2016. 5. 30,52,108.80/- along with interest and other charges before the e-auction. However, the petitioners did not pay the amount to the respondent bank and, on such default of the petitioners the respondent No. 1 had fixed the e-auction sale on 29.08.2016. A paper publication was also made to that effect on 28.07.2016. 5. The present writ petition is filed challenging the e-auction sale notice dated 28.07.2016 with a prayer for restraining the respondent bank from auctioning the land mortgaged by the petitioner No. 1 in favour of respondent No. 1 in terms of the e-auction notice dated 28.07.2016. 6. While entertaining the writ petition by order dated 26.08.2016, this court directed the petitioners to pay the balance quantified amount of Rs. 30,52,108.80/- in the next thirty days and, subject to the petitioners filing an undertaking in this court by 29.08.2016 to pay the said sum of Rs. 30,52,108.80/- on or before 26.09.2016 to the respondent bank, the e-auction sale notice dated 28.07.2017 was stayed. Though, as directed by the court, an undertaking in the form of an affidavit was given by the petitioners on 29.08.2016, learned counsel for the parties are ad idem that the amount of Rs. 30,52,108.80/- was not paid within the period of thirty days as stipulated by this court, but was subsequently paid on 04.10.2016. 7. The respondent bank had filed an Interlocutory Application, being I.A. (Civil) 1985/2016, seeking a direction to the petitioners to make payment of the unapplied interest and other charges amounting to Rs. 9,28,709.00/-. 8. Mr. Tiwari has submitted that in view of the deposit of the amount of Rs. 30,52,108.80/-, there is no amount due and payable by the petitioners towards the loan taken and the respondent bank ought to be directed to return the land and other documents submitted by the petitioners at the time of availing the loan. 9. Mr. Sen has submitted that the e-auction notice dated 28.07.2016 also required the petitioners to pay interest and other charges over and above the sum of Rs. 30,52,108.80/-. He submits that after an account becomes NPA, though the interest accumulated is not reflected, a defaulting loanee is duty bound to make payment of unapplied interest and other charges. Mr. Sen has also drawn our attention to an additional affidavit filed in the Interlocutory Application to contend that, as on 31.07.2017, a sum of Rs. 30,52,108.80/-. He submits that after an account becomes NPA, though the interest accumulated is not reflected, a defaulting loanee is duty bound to make payment of unapplied interest and other charges. Mr. Sen has also drawn our attention to an additional affidavit filed in the Interlocutory Application to contend that, as on 31.07.2017, a sum of Rs. 7,11,904.00/- was due and payable by the petitioners as interest and other charges. He has clarified that the amount of Rs. 9,28,709,00.00/-, as reflected in the Interlocutory Application, was based on the calculation of interest at the contractual term, which was 13.1%. However, the interest was taken @9.7% while calculating the amount payable as reflected in the additional affidavit. He submits that in view of the order passed by this court on 25.04.2017 for an amicable settlement between the parties, the interest rate was lowered down to 9.7%. 10. During the course of hearing, Mr. Sen has produced before the court a letter dated 15.09.2018, addressed to him by the Chief Manager, Zonal Office of the respondent bank. On the basis thereof, Mr. Sen submits that if the interest is applied as per the contract rate, the petitioners would be liable to pay Rs. 14,89,057.00/- up to 15.09.2018. However, if a compromise is arrived at, the petitioners would be liable to pay the following amounts: 1. Unapplied interest @ 9.7% (simple) Rs.2,82,559.00/- w.e.f. 01.02.2016 to 31.07.2017. 2. Unapplied interest @ 9.7% (simple) Rs.44,158.00/- w.e.f. 01.08.2017 to 15.09.2018. 3. Present book balance Rs.4,08,179.00/- 4. Advocate fees Rs.50,000.00/- 5. Recovery comm : Rs.30,521.00/- Total dues payable Rs.8,15,417.00/- (Rupees eight lakh fifteen thousand four hundred and seventeen) only. 11. Considering the matter in its entirety, we are of the opinion that for compromising the matter also, the petitioners would be liable to pay the sums of Rs. 2,82,559.80/-, Rs. 44,158.00/- and Rs. 4,08,179.00/- 12. When the case was taken up in the first half, we had requested Mr. Sen to take instructions as to whether, in the facts and circumstances of the case, the amount of Rs. 80,521.00/- (Advocate Fee Rs. 50,000.00/- + Recovery commission Rs. 30,521.00/-) can be waived. 13. Mr. Sen has submitted on instructions that the respondent bank has agreed to waive the amount of Rs. 80,521.00/- relating to Advocate Fees and Recovery Commission. 14. In that view of the matter, we direct the petitioners to pay a sum of Rs. 7,34,896.00/- (Rs. 80,521.00/- (Advocate Fee Rs. 50,000.00/- + Recovery commission Rs. 30,521.00/-) can be waived. 13. Mr. Sen has submitted on instructions that the respondent bank has agreed to waive the amount of Rs. 80,521.00/- relating to Advocate Fees and Recovery Commission. 14. In that view of the matter, we direct the petitioners to pay a sum of Rs. 7,34,896.00/- (Rs. 8,15,417.00/- Rs. 80,521.00/- ) to the respondent bank on or before 31.12.2018. Out of the said amount of Rs. 7,34,896.00/-, the petitioners will pay a sum of Rs. 1,00,000.00/- (Rupees one Lakh) by 30.09.2018. No interest shall be charged on the above outstanding amount for the period from 15.09.2018 till 31.12.2018 if the petitioners pay the amount of Rs. 7,34,896.00/- by 31.12.2018. On due payment, the documents submitted by the petitioners at the time of availing the loan, such as, land documents, etc., shall be forthwith returned to the petitioners. If, however, the amount is not paid by 31.12.2018, the respondent bank will be at liberty to proceed in accordance with law. 15. Till 31.12.2018, no coercive action shall be adopted by the respondent bank against the petitioners. 16. The interim order passed earlier stands vacated. 17. The writ petition stands disposed of in terms of the above observations and directions.