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2018 DIGILAW 1745 (GAU)

Nirod Kumar Deka v. Oriental Bank of Commerce

2018-12-14

A.S.BOPANNA, ARUP KUMAR GOSWAMI

body2018
JUDGMENT : A.S. BOPANNA, J. 1. Heard Mr. B.D. Goswami, learned counsel for the petitioner. Also heard Mr. A. Bharali, learned counsel for the respondents. 2. The petitioner is before this Court assailing the order dated 16.11.2018 passed by the Debts Recovery Tribunal, Guwahati (for short "DRT") in I.A. No.143/2018 in S.A. No.73/2018. 3. The petitioner herein is a borrower from the respondent Bank. Since the petitioner had committed default in repayment, the respondent Bank had invoked the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short hereinafter referred to as 'SARFAESI Act') and action had been taken under Sections 13 and 14 of the said Act. Accordingly, the secured asset had been sealed after taking possession and further action for recovery is undertaken by the respondent Bank. At that stage, the petitioner was before this Court in W.P.(C) No.7492/2018. This Court had relegated the petitioner to his remedy under the SARFAESI Act as provided under Section 17 thereof. Accordingly, proceeding in S.A. No.73/2018 had been initiated. 4. In the said proceeding, the petitioner herein had also filed an application seeking for an interim direction to de-seal the premises of which possession had been taken over by the Respondent Bank so as to enable the petitioner to occupy the same. The DRT had rejected the said prayer. It is in that circumstance the petitioner is before this Court. 5. Having referred to the sequence of events that had taken place, we are conscious of the limited scope of this Court to interfere with an action that had been initiated under the SARFAESI Act. In that background, while considering the entire aspect which relates only to interim direction, we have also taken note of the intention expressed by the petitioner to settle the matter with the respondent Bank and to pay the amount in installments. While taking note of this aspect, we have also taken into consideration that the petitioner had availed a housing loan and the property that had been sealed presently is a residential premises. While taking note of this aspect, we have also taken into consideration that the petitioner had availed a housing loan and the property that had been sealed presently is a residential premises. In that regard, on a consideration to be made, we have also taken note of the fact that at present though the entire re-called amount as per the notice issued is to the tune of Rs.39,07,417/- as on 31.12.2017, the indication is that on the date when the loan was declared as NPA, the unpaid installment was in the range of Rs.5,68,000/- or thereabout. In that circumstance, we also find it appropriate to provide an opportunity to the petitioner to update the installments and seek for regularization of the loan. 6. Hence, keeping all these aspects in view, we are of the opinion that the petitioner is required to pay at least the unpaid installments amount which is roughly quantified at Rs.6 lakhs. In that view, the petitioner at this point, shall pay a sum of Rs.6 lakhs to the respondent Bank on or before 31.12.2018. If the said amount is paid, the respondent Bank is directed to de-seal the premises and put the petitioner in possession of the premises. Insofar the balance amount is concerned, parties may put forth contentions regarding the manner in which the same would be settled, in the pending proceeding before the DRT in S.A. No.73/2018 and a payment schedule be agreed therein. 7. In that view of the matter, the respondent Bank shall not precipitate the matter till 31.12.2018. It is made clear that the benefit of this order will be available to petitioner subject to the amount of Rs.6 lakhs being deposited on or before 31.12.2018. If the said amount is not deposited and the benefit of this order is not taken by the petitioner, there would be no restraint on the respondent Bank subsequent to 31.12.2018 to proceed further with the matter in accordance with law. If the said amount is not deposited and the benefit of this order is not taken by the petitioner, there would be no restraint on the respondent Bank subsequent to 31.12.2018 to proceed further with the matter in accordance with law. It is made clear that subsequent to 31.12.2018, if the petitioner having obtained the possession of the premise does not choose to indicate and negotiate the settlement before the DRT and if the further amount is not paid, the respondent Bank would be entitled to re-possess the premises once again without going through the procedure as provided under Section 14 of the Act, but by only informing the DRT if the matter is pending at that stage. 8. In terms of the above, the petition stands disposed of.