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2019 DIGILAW 190 (AP)

Maruthi Minerals Private Limited v. Authorised Officer/Chief Manager, Bank of India

2019-08-13

J.UMA DEVI, M.SEETHARAMA MURTI

body2019
ORDER : M. Seetharama Murti, J. 1. This writ petition, under Article 226 of the Constitution of India, is filed seeking verbatim the following relief: 'to issue order direction more particularly one in the nature of writ of MANDAMUS declare the action of the respondents in not considering the application submitted by the petitioner on 14.11.2018 as illegal, arbitrary and contrary to the provisions of SARFAESI Act and consequently direct the respondent to consider the application filed by the petitioner on 14.11.2018 and to pass such other order or orders as this Hon'ble Court may deems fit just and proper in the circumstances of the case.' 2. We have heard the submissions of Sri P.R.K. Amarendra Kumar, learned counsel appearing for the petitioner; and, of Ms. V. Dyumani, learned counsel appearing for the respondent. We have perused the material record. 3. The case of the petitioner, which requires a relevant mention, in brief, is this: 'In the year 2013, the petitioner approached the respondent Bank for financial assistance for development of its business and pledged & mortgaged its properties with the Bank on the Bank offering, in the year 2014, term loan, Current Account, Cash Credit Account in a sum of Rs. 10 Crores. The petitioner is regular in paying the instalments/EMIs. However, the respondent Bank declared the asset as a Non Performing Asset, on 18.08.2015. A demand notice, dated 19.08.2015, was issued under Section 13(2) of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 ('SARFAESI Act', for brevity) calling upon the petitioner to discharge the liability in full by paying to the Bank a sum of Rs. 10,39,12,850/- with interest within 60 days from the date of notice and intimating that on failure to do so, the Bank will proceed against the secured assets mentioned in the said notice. The petitioner paid an amount of Rs. 5,14,81,455/-. The balance amount payable was Rs. 5,60,00,000/-. Therefore, the petitioner made an application, dated 29.09.2018, to the Bank for One Time Settlement (OTS). The said application was accepted by the Bank and a repayment schedule under OTS scheme was fixed, vide letter, dated 19.10.2018, of the Bank. As per the said schedule, the petitioner paid Rs. 30,00,000/-, on 29.09.2018. Further, the petitioner paid Rs. 1,12,00,000/- including Rs. 43,00,000/- by 11.11.2018. The balance amount of Rs. 4,48,00,000/- was payable on or before 12.01.2019. The said application was accepted by the Bank and a repayment schedule under OTS scheme was fixed, vide letter, dated 19.10.2018, of the Bank. As per the said schedule, the petitioner paid Rs. 30,00,000/-, on 29.09.2018. Further, the petitioner paid Rs. 1,12,00,000/- including Rs. 43,00,000/- by 11.11.2018. The balance amount of Rs. 4,48,00,000/- was payable on or before 12.01.2019. Beyond that period, interest is chargeable at the specified rate. Due to financial crisis, the petitioner could not pay the amounts, as per the schedule fixed by the Bank. Hence, it made an application, dated 14.11.2018, for extension of time to pay the amount as per the OTS scheme. By a letter, dated 18.03.2019, the petitioner was informed that time granted for repayment of loan amount under OTS scheme expires on completion of 180 days, from 29.09.2018, and that accordingly, time expired on 28.03.2018. Thus, the respondent Bank did not extend the time for payment of the balance amount under OTS scheme, though the Bank has got power to extend the time. If the Bank proceeds to take steps as per the provisions of the SARFAESI Act without extending the time, the petitioner suffers serious loss and hence, the writ petition is filed. The Bank ought to have considered the application submitted by the petitioner, on 14.11.2018, wherein, the petitioner sought extension of time, while stating that the petitioner is seriously committed to abide by the OTS scheme orders.' 4. Per contra, the case of the respondent Bank is this: 'The request in the letter, dated 14.11.2018, which the petitioner is seeking the Bank to consider, is not legal. The request is made to grant 30 days time for payment of second instalment of OTS in a sum of Rs. 69 lakhs. By letter, dated 19.10.2018, the Bank approved the OTS scheme for Rs. 5,60,00,000/-. The repayment schedule and the scheme is intimated to the petitioner. If only the OTS amount is paid on or before 12.01.2019, the Bank is obliged to accept the OTS scheme. However, on failure to pay the amount on or before 12.01.2019, the OTS amount carries interest as mentioned and as per the rules applicable. Under any circumstances, OTS amount shall be paid within 180 days. If only the OTS amount is paid on or before 12.01.2019, the Bank is obliged to accept the OTS scheme. However, on failure to pay the amount on or before 12.01.2019, the OTS amount carries interest as mentioned and as per the rules applicable. Under any circumstances, OTS amount shall be paid within 180 days. In the event of failure to pay the amount with interest within the time specified, the OTS offer stands cancelled and the amount paid would be appropriated towards loan account and the Bank would be at liberty to proceed further for recovery of the entire outstanding amount. Admittedly, the petitioner has not complied with the condition related to payment of the 2nd installment in a sum of Rs. 1,12,00,000/- on or before 11.11.2018. The petitioner also failed to pay the 3rd instalment of Rs. 4,48,00,000/- on or before 12.01.2019. If amount is not paid as per the repayment schedule under OTS scheme, any amount deposited against accepted OTS will be appropriated in the account against recovery and approval for OTS shall stand revoked and further action under SARFAESI Act has to be continued. 180 days' time schedule expired by 17.04.2018. The petitioner failed to avail the OTS. Letter, dated 18.03.2019, was communicated to the petitioner informing that the OTS offer will expire within a few days and that on failure to make the payment the OTS scheme stands revoked. On account of non-payment, the offer stood cancelled. The Bank is entitled to proceed further and recover the entire outstanding amount. The petitioner filed a writ petition in W.P. No. 2877 of 2018 challenging the action of the respondent Bank against the petitioner, on 18.07.2017, as illegal. When the said writ petition came up for hearing, on 06.02.2018, the respondent Bank reported that the application for OTS was rejected, on 01.09.2017: The said writ petition was dismissed as withdrawn, on 06.02.2018. This Court made it clear that the order in the writ petition shall not preclude the Bank from initiating/pursuing the proceedings under the SARFAESI Act, if necessary. Hence, the present writ petition is liable to be dismissed.' 5. Both the parties made submissions in line with the pleadings of the parties, which are extracted supra. 6. Having regard to the facts & submissions, the issue involved in this writ petition need not detain this Court for long. The petitioner opted for OTS. Hence, the present writ petition is liable to be dismissed.' 5. Both the parties made submissions in line with the pleadings of the parties, which are extracted supra. 6. Having regard to the facts & submissions, the issue involved in this writ petition need not detain this Court for long. The petitioner opted for OTS. OTS was sanctioned and payment schedule was given. The petitioner failed to make payments, as per the schedule under OTS. Eventually, for non-payment of the amount due as per the schedule under the OTS, the OTS stood revoked. The petitioner earlier filed W.P. No. 2877 of 2018 and the said writ petition was dismissed as withdrawn. In the said order, this Court observed that the order in the writ petition shall not preclude the Bank from initiating/pursuing the proceedings under the SARFAESI Act, if necessary. Once OTS facility was sanctioned and the same was revoked on account of the petitioner's failure to abide by the payment schedule, the respondent Bank is entitled to initiate/pursue the proceedings under the SARFAESI Act; and, a defaulter like the writ petitioner is not entitled to stall such proceedings, which the Bank is entitled to initiate and pursue as per law. It is well settled that a Court of equity will not assist a person in extricating himself from the circumstances that he has created and that equity will not grant relief from a self-created hardship. Hence, we hold that the no valid & sufficient grounds are made out for granting any relief exercising equity jurisdiction. 7. In the result, the Writ Petition is dismissed. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed.