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2018 DIGILAW 1523 (GAU)

K. ROHMINGLIANA v. IDBI BANK LTD

2018-10-10

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. B. Lalramenga, learned counsel for the petitioner. No one appears for the respondents. The petitioner being aggrieved by the lowering of the value of his property to Rs. 40 lakhs from Rs. 136 lakhs, has prayed for setting aside the Valuation Report dated 05.09.2016, wherein his mortgaged property is valued at Rs. 40 lakhs and for a direction to be issued to the respondents to accept the value of the mortgaged property at Rs. 136 lakhs, as per the earlier Valuation Report dated 15.09.2008. 2. The petitioner's case in brief is that he is the proprietor of M/s Mizoram Retreads that had been granted a term loan from the IDBI Bank Limited for Rs. 60 lakhs. Thereafter, another Rs. 20 lakhs was also given to the petitioner. The petitioner mortgaged his landed property covered by LSC No. AZL-405/1991, as security for the loan amount. 3. The petitioner's counsel submits that at the time of availing of the loan, the valuation of his land as per Valuation Report dated 15.09.2008 was Rs. 1,36,00,000/-. As the petitioner was unable to repay his loan, the bank filed a case for recovery against the petitioner in the DRT, Guwahati, vide Original Application No. 186/2012. 4. O.A No. 186/2012 was disposed of vide Judgment dated 11.06.2015, by the DRT, Guwahati, wherein an order for issue of recovery certificate in favour of the Bank for a sum of Rs. 95,52,804/- with pendentelite and future interest at the rate of 13.5% p.a with quarterly rests till realization and cost of the application was given. The charge of the certificate amount was to be kept alive on the mortgaged property covered by LSC No. AZL-405/1991. The Recovery Officer was to recover the certificate dues thereafter. 5. That the DRT, Guwahati, thereafter issued a Proclamation of Sale on 24.04.2018 in DRPC No. 1700 dated 20.07.2015, arising out of O.A No. 186/2012. The Proclamation of Sale stated that the mortgaged property would be sold by E-Auction on 28.06.2018 at 3:00 P.M for recovery of the certificate sum of Rs. 95,52,804/-. The reserved price of the mortgaged property was fixed at Rs. 34 lakhs. 6. The Proclamation of Sale stated that the mortgaged property would be sold by E-Auction on 28.06.2018 at 3:00 P.M for recovery of the certificate sum of Rs. 95,52,804/-. The reserved price of the mortgaged property was fixed at Rs. 34 lakhs. 6. The petitioner, being aggrieved by the Proclamation of Sale dated 24.04.2018, has filed the present writ petition stating that at the time the petitioner availed of the term loan from the IDBI Bank in the year 2008, valuation of the mortgaged property was fixed at Rs. 136 lakhs, as per Valuation Report dated 15.09.2008. However, the valuation of the mortgaged property has been lowered to Rs. 40 lakhs vide Valuation Report dated 05.09.2016 and a reserve price of Rs. 34 lakhs has been fixed for the sale of said property, as per the Proclamation of Sale dated 24.04.2018. 7. The petitioner's counsel submits that he was not aware of the devaluation of his property prior to the Proclamation of Sale dated 24.04.2018. He also submits that devaluation of the mortgaged property has been done without his knowledge and accordingly, the Valuation Report dated 05.09.2016 should be set aside. 8. Though the respondents are not represented by their counsels today, an affidavit-in-opposition has been filed by the respondent Nos. 1 to 3 and it is stated by the respondents in their affidavit that the valuation of the mortgaged property was carried out on 03.09.2016, in the presence of the petitioner himself and that till the issuance of the Proclamation of Sale, the petitioner did not make any objection on the subsequent valuation of the property. Accordingly, the averment made by the petitioner in paras 8 & 9 of the writ petition that he was not aware of the devaluation of his property was factually incorrect. 9. Para 8 of the affidavit-in-opposition and the Order dated 226/2018, passed in O.A No. 186/2012 (Annexure 1 of the affidavit-in-opposition) is to the effect that the petitioner was aware of the devaluation of his property, as he was informed of the same vide Order dated 30.03.2017. The affidavit-in-opposition thus states that the present writ petition has been filed only to delay the completion of the sale of the mortgaged property. 10. The affidavit-in-opposition thus states that the present writ petition has been filed only to delay the completion of the sale of the mortgaged property. 10. On hearing the learned counsel for the petitioner and on perusal of the records of this case, this Court finds that the "Report on Property Assessment" (Annexure 5 of the writ petition), which is the Valuation Report dated 05.09.2016, shows that the owner/petitioner was present at the time of valuation of the mortgaged property on 03.09.2016. Para 9 (ii) of the Valuation Report dated 05.09.2016 also states that the value of the property has not been disclosed by the owner. Para 17 (i) of the Valuation Report dated 05.09.2016 states that the property had also been valued earlier vide Notification dated 26.01.2015 and that the basis for evaluation on 26.01.2015 was an independent opinion on local market rate. The Valuation Report dated 05.09.2016 shows that the mortgaged property had been valued at Rs. 40 lakhs. The contents of the valuation report dated 05.09.2016 has not been denied by the petitioner. 11. The Order dated 22.06.2018, passed by the DRT, Gauhati in O.A No. 186/2012 is to the effect that the petitioner was informed vide Order dated 30.03.2017 that the value of the mortgaged property was Rs. 40 lakhs and the property would be put into auction sale, fixing reserve price at 15% below the market value. The petitioner was directed to appear in person for settlement of the terms and conditions of the sale on 08.05.2017. The petitioner appeared in person on 08.05.2017 and made a submission to the effect that he would pay the value of the property within September, 2017 and pay the balance dues within the next 3 (three) months thereafter. The petitioner was also directed to pay Rs. 10 lakhs within 07.07.2017 and that extension of further time to pay the balance would be considered thereafter. The Order dated 22.06.2018 also states that the petitioner did not make a single objection on the value of the property on 08.05.2017, when he had made his submission to the DRT, Guwahati that he would pay the value of the property within September, 2017. 12. The Order dated 22.06.2018, passed by the Recovery Officer, DRT, Guwahati on 22.06.2018 (Annexure 1 of the Affidavit-in-opposition) is reproduced below:- "22.06.2018 Authorized Officer of IDBI Bank Ltd. appeared for Certificate Holder Bank (CHB for brevity). Ld. 12. The Order dated 22.06.2018, passed by the Recovery Officer, DRT, Guwahati on 22.06.2018 (Annexure 1 of the Affidavit-in-opposition) is reproduced below:- "22.06.2018 Authorized Officer of IDBI Bank Ltd. appeared for Certificate Holder Bank (CHB for brevity). Ld. Counsel appeared for Certificate Debtor (CD for brevity) CD No. 2. CD No. 2 is the proprietor of CD No. 1. Ld. Counsel for CD No. 2 has filed a petition (P/90/2018) on 12.06.2018 disputing the irregularities held in respect of valuation of the mortgaged property that has been put into auction sale. The contentions of CD are stated below:- (i) CHB made a valuation of the property at the time of sanctioning loan showing the value of the property at Rs. 136 lakhs in the year of 2008. (ii) Later on CHB made further valuation of the property on 03.09.2016 in which value of the property was ascertained at Rs. 40.00 lacs. (iii) The reserve price of the property has been fixed at Rs. 34.00 lacs. The case record reveals the followings:- (i) CD was informed vide order dated 30.03.2017 that value of the property is Rs. 40.00 lacs and property will be put into auction sale fixing reserve price 15% below the market value. CD was directed to appear in person for settlement of terms and conditions of sale. The date was fixed on 08.05.2017. (ii) CD appeared in person on 08.05.2017 made a submission to pay the value of the property within September, 2017 and to pay the balance dues within next three months thereafter. CD was directed to pay Rs. 10.00 lac within 07.07.2017 and extension of further time to pay the balance will be considered thereafter. CD did not make a single objection on the value of the property on that day. (iii) CD neither paid any amount nor made any objection on the valuation of property till 24.04.2018 and the Tribunal proclaimed the sale on 24.04.2018 fixing the reserve price at Rs. 34.00 lacs (15% below the market value as per previous order). (iv) CD had full knowledge about reduced value of the property vide valuation report dated 03.09.2016 made by CHB, but did not make any objection either before this Tribunal or to the CHB in this regard, the reason best known to him only. 34.00 lacs (15% below the market value as per previous order). (iv) CD had full knowledge about reduced value of the property vide valuation report dated 03.09.2016 made by CHB, but did not make any objection either before this Tribunal or to the CHB in this regard, the reason best known to him only. Under Rule 60 of the Second Schedule of Income Tax Act, 1961 (read with Section 29 of the RDDBFI Act, 1993 as amended from time to time), CD is required to pay the entire certificate amount for which the sale has been proclaimed for cancellation of sale. CD has neither paid the value of the property as he promised earlier nor he has deposited the certificate amount with this petition. The petition (P/90/2018) filed by CD No. 2 is dismissed. CHB is directed to keep an watch on the property so that it is not occupied by any person and in the event of such incident, CHB is granted liberty to inform the Tribunal immediately. Fix on 28.06.2018 for auction sale. A free copy of the day's order be given to CHB and Ld. Counsel for CD. Sd/- Recovery Officer II Debts Recovery Tribunal Guwahati" 13. Though the petitioner has taken a stand in para 9 of his writ petition that the subsequent land valuation of the mortgaged property at Rs. 40 lakhs was done without his knowledge, the "Report on Property Assessment" (Annexure-5 of the writ petition) clearly shows that the petitioner was present at the time of valuation of the mortgaged property on 03.09.2016 and that the property had been subsequently valued at 40 lakhs vide Valuation Report dated 05.09.2016. The Order dated 22.06.2018, passed by the Recovery Officer DRT, Guwahati in O.A No. 186/2012 clearly shows that the petitioner was aware of the valuation of his property at Rs. 40 lakhs, on the basis of the Order dated 30.03.2017. However, the petitioner did not make any objection on the value of the property when he appeared before the DRT on a subsequent date, i.e., 08.05.2017. It is also not the case of the petitioner that Order dated 22.06.2018, passed by the Recovery Officer, DRT, Guwahati is not correct. 14. 40 lakhs, on the basis of the Order dated 30.03.2017. However, the petitioner did not make any objection on the value of the property when he appeared before the DRT on a subsequent date, i.e., 08.05.2017. It is also not the case of the petitioner that Order dated 22.06.2018, passed by the Recovery Officer, DRT, Guwahati is not correct. 14. This Court also finds that the petitioner has not come out with a categorical statement in this petition, as to the date or month when he first came to learn that his mortgaged property had been valued at Rs. 40 lakhs. In the case of K.D. Sharma Vs. Steel Authority of India Limited & Ors, (2008) 12 SCC 481, the Apex Court has held that a party who invokes the extraordinary jurisdiction under Article 226 of the Constitution is supposed to be truthful, frank and open. He cannot be allowed to play "hide and seek" or to "pick and choose" facts. If material facts are suppressed or distorted, the very functioning of the writ court would become impossible. In order to prevent the abuse of its process, the writ court has got the inherent jurisdiction to protect itself and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. 15. In the present case, the "Report on Property Assessment" shows that the petitioner was present at the time of verification of the mortgage land, wherein it was valued at Rs. 40 lakhs. Further, as per the Order dated 22.06.2018 passed by the Recovery Officer, DRT, Guwahati, the petitioner was aware of the valuation of his property at Rs. 40 lakhs on the date when he appeared before the DRT on 08.05.2017. In any event, the petitioner being aware of the valuation of his property at Rs. 40 lakhs, as per the Valuation Report dated 05.09.2016, due to him being a part of the verification team on 03.09.2016, the submission of the petitioner that he was unaware of the valuation of the mortgaged land @ Rs. 40 lakhs prior to the Proclamation of Sale is a false statement. The petitioner thereafter made a challenge to the same before the Recovery Officer, DRT, Guwahati, which was rejected vide order dated 22.06.2018. 40 lakhs prior to the Proclamation of Sale is a false statement. The petitioner thereafter made a challenge to the same before the Recovery Officer, DRT, Guwahati, which was rejected vide order dated 22.06.2018. The Order dated 22.06.2018 passed by the Recovery Officer, DRT, Guwahati in O.A. No. 186/2012 has however not been put to challenge by the petitioner even in this writ petition. 16. In view of the reasons stated above, this Court does not find any reason to exercise its discretion in the present case. The writ petition is accordingly dismissed. Interim order passed earlier stands vacated. 17. It is needless to add that if the petitioner has a statutory right to file an appeal against the Order dated 22.06.2018 passed by the Recovery Officer, DRT, Guwahati, the petitioner may avail of the same, as allowed as per law.