Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 412 (HP)

Kanwar Rahul Singh v. Central Bank Of India

2019-04-10

SANDEEP SHARMA, SURYA KANT

body2019
JUDGMENT Surya Kant, C. J. - The instant writ petition has been filed seeking a Writ of Mandamus to direct respondent-Central Bank of India to give fresh calculation on the basis of interest @ 9% per annum as per the judgment dated 27th August, 2018 passed by the Hon''ble Supreme Court (Annexure P-3), which is inter-se parties, with a further restraint order against the Bank not to take any coercive action qua the share of the petitioner in the property and allow him to take possession thereof. Alternatively, a direction has been sought to the Debt Recovery Tribunal (hereinafter referred to as ''DRT'') to decide the controversy within a period of two days and to further allow the petitioner to deposit his share of undisputed amount in terms of the above-cited judgment of the Hon''ble Supreme Court. 2. The case has a chequered history. The father of the petitioner as well as petitioner''s brother proforma respondent No. 3 raised a loan of 22 lacs from the ? respondent-Bank in the year 1985. The non-payment of the loan amount led to various rounds of litigation and according to the petitioner, in terms of an earlier decision of this Court rendered in CWP No. 1142 of 2005 (Kanwar Vishwajit Singh and others versus Central Bank of India and others), a sum of one crore stood paid to the Bank. ? 3. The narration of subsequent facts, as such, may not be necessary except to mention that being aggrieved by the decision of this Court in the above-quoted writ petition, Kanwar Vishwajit Singh alongwith the present petitioner preferred Civil Appeal No. 8664 of 2018 in the Hon''ble Supreme Court, which was disposed of on 27th August, 2018 in following terms: "(i) The respondent Bank will calculate its dues as on 7th December, 2005 and inform the appellants forthwith, preferably within a week, and the appellant shall pay the balance amount of the said dues along with interest thereon at the rate of 9% per annum with effect from 7th December, 2005 till the date of payment. The payment shall be made by the appellants within a period of four months from today; (ii) Subject to the compliance of the aforesaid condition the appellants shall continue to enjoy possession and title of the property; (iii) The auction purchaser who has paid Rs. The payment shall be made by the appellants within a period of four months from today; (ii) Subject to the compliance of the aforesaid condition the appellants shall continue to enjoy possession and title of the property; (iii) The auction purchaser who has paid Rs. 85.5 lakh (Rupees Eighty five lakh and fifty thousand) to the Bank in the auction shall be refunded the said amount, if the same has not already been refunded, along with interest thereon at the rate of 6% per annum from the date of payment till the date of refund. If the aforesaid condition of payment by the appellant is, in any way, not complied with, the property in question may be subjected to another fresh process of auction." 4. As may be seen from the above-reproduced directions, the petitioner and his brother were required to pay the entire dues of the Bank within a period of four months from 27th August, 2018 and the due amount was to be calculated and informed by the Bank within one week. In the event of any default, the apex Court permitted the Bank to put the mortgaged property to fresh process of auction. 5. It further appears that execution proceedings by the Bank pursuant to a decree passed by DRT in its favour was already pending and in those execution proceedings, the Bank submitted the due amount as per its calculations. However, the petitioner and his brother objected to the method of calculation of interest, hence, the Recovery Officer, DRT-I vide order dated 9th October, 2018 (Annexure P-6) recorded a statement on behalf of the Bank that a fresh calculation shall be supplied to the petitioner. 6. The petitioner and his brother, however, were not satisfied with the fresh calculations made by the Bank, hence, this writ petition seeking the reliefs, a brief reference to which has been made in the opening part of this order. 7. Though, the core issue raised by the petitioner in the instant writ petition revolves around the calculation of interest component by the Bank, however, the actual contention raised on his behalf, which was also noticed by the Hon''ble Supreme Court, is to the effect that he is left with the sole residential property and he may be given some reasonable time to make payment of the due amount to save the said property. 8. 8. Keeping that fact in view, this Court asked the petitioner as to what was the amount due according to him and it was informed to this Court on 2nd January, 2019, as corrected on 10th January, 2019 that the due amount was Rs. 2,27,39,890/-. With a view to test the bona fide of the petitioner, this Court, thus, directed that subject to the petitioner''s depositing half of the due amount within two weeks, status quo regarding auctioning of the residential house be maintained. 9. It is a matter of record that not a single penny has been deposited by the petitioner and he has been changing his stands for one reason or the other. The petitioner sought and was granted three adjournments to produce an alleged prospective buyer of the property, who might be willing to pay the due amount to the Bank. 10. It is fairly conceded that no buyer is willing to come forward allegedly for the reason that there is a partition dispute between the petitioner and his brother. 11. We are not concerned about inter-se dispute between the brothers qua partition proceedings. The fact remains that the petitioner and his brother are under obligation to comply with the judgment of the Hon''ble Supreme Court and this Court, at the best, while noticing the dispute with regard to the calculation of interest, has sufficiently intervened and granted sufficient time to the petitioner to come forward and deposit at least half of the loan amount. 12. Since one of the reliefs sought by the petitioner in the instant writ petition is to direct the Recovery Officer, DRT-I to intervene in the matter and decide the amount of interest payable by him, the instant writ petition is disposed of with a direction to the Recovery Officer, DRT-I to hear both the parties and determine the amount, as payable by the petitioner in terms of the judgment of the Hon''ble Supreme Court. The Recovery Officer shall do the needful within four weeks from the date of receipt of copy of this order. 13. In the interest of justice, it is directed that subject to the petitioner''s depositing a sum of 50 lacs with ? the Bank within two weeks, status quo re : auction be maintained till four weeks till the Recovery Officer determines the due amount. 14. All pending miscellaneous applications, if any, also stand disposed of accordingly. 13. In the interest of justice, it is directed that subject to the petitioner''s depositing a sum of 50 lacs with ? the Bank within two weeks, status quo re : auction be maintained till four weeks till the Recovery Officer determines the due amount. 14. All pending miscellaneous applications, if any, also stand disposed of accordingly. Copy dasti.