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2022 DIGILAW 108 (UTT)

Vinay Kumar Ghildiyal v. State of Uttarakhand

2022-05-12

SHARAD KUMAR SHARMA

body2022
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. The State has enforced the scheme called as “Veer Chandra Singh Garhwali Yojana” for the purposes of extension of financial assistance for the establishment of the small businesses and it is admitted that under the said Scheme, the petitioner had taken a loan advance of Rs. 20 lacs, from the respondents/Bank as back as on 2009. There had been certain admitted defaults committed in the remittance of the amount due to be paid by the petitioner under the loan agreement, consequent to which, as per the records brought before this Court, the account of the petitioner was declared as NPA, as back as on 13th June, 2012. Subsequent to it, the notice under section 13(2) was also issued by the respondent on 6th August, 2019. 2. The petitioner, as against the apprehended recovery, which he anticipated, that it could be resorted to against him, had earlier preferred a Writ Petition before this Court, being Writ Petition (M/S) No. 8 of 2022, for the following reliefs: “(i) Issue a writ, order or direction in the nature of certiorari quashing the undated letter (Annexure No. 15 to the writ petition). (ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 1 and 2 to release the amount of Rs.5 Lakh as a subsidy in the favour of the petitioners for the loan account no. 4232027804 sanctioned for the construction of homestay at Khet No. 128, Dang Asthana, Srinagar, Garhwal. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 and 3 to complete the one time settlement and finally close the loan account of the petitioners adjusting the already paid amount in the favour of the bank against the said loan. (iv) Issue a writ, order or direction in the nature of mandamus directing the respondents to complete the proceedings in the positive manner taking into account the welfare of the petitioners’ family. (v) Issue any other or further writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (vi) To award the cost of the petition in favour of the petitioners.” 3. (v) Issue any other or further writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (vi) To award the cost of the petition in favour of the petitioners.” 3. The said Writ Petition was considered by the Coordinate Bench of this Court and by the judgment of 6th January, 2022, and the Writ Petition was disposed of, with the direction and that liberty was given to the petitioner to file a representation before the District Tourism Development Officer, and if the representation is made before the “District Tourism Development Officer” the same would be placed before the Committee. The relevant directions issued by the High Court is extracted hereunder: “4. Having regard to the facts and circumstances of the case, the writ petition is disposed of with liberty to petitioner to make representation to District Tourism Development Officer, Pauri Gahwal. If petitioner makes such representation within ten days from today, District Tourism Development Officer shall place the matter before the concerned Committee, which all take a decision as early as possible; but, not later than eight weeks’ from the date of production of certified copy of this order.” 4. The petitioner submits that in response to the judgment of 6th January, 2022, he represented the matter before the District Tourism Development Officer, Pauri Garhwal, who constituted a Committee, headed by the District Magistrate, which admittedly has held its proceedings on 25th March, 2022, and the said Committee, constituted the official of the Bank also. The Committee, thus accordingly on 1st April, 2022, had resolved in its Para 5 and 6, that if the petitioner submits an offer of one time proposal, the same would be reasonably considered by the Regional Manager and the Board of the Bank. The relevant part of the decision of the Committee taken under Clause 5 and 6 is extracted hereunder: ^^5- 'kk[kk ÁcU/kd] mRrjk[k.M xzkeh.k cSd }kjk voxr djk;k x;k fd Jh fou; dqekj f?kfYM;ky }kjk ,d eq'r lek/kku ;kstuk ds fu.kZ; ds Øe esa ÁLrko Lohdkj ugha fd;k x;k gSA 6- lfefr }kjk ;g fu.kZ; fy;k x;k fd ;fn Jh fou; dqekj f?kfYM;ky ,d eq'r lek/kku ;kstuk ¼vksŒVhŒ,lŒ½ gsrq vkosnu ÁLrqr djrs gS] rks 'kk[kk ÁcU/kd] mŒxzkŒ cSad Jhuxj fu;ekuqlkj mDr ÁLRkko dks {ks=h; ÁcU/kd ,oa cSad cksMZ ds le{k fopkjkFkZ ÁLrqr fd;s tkus gsrq funsZf'kr fd;k x;kA** 5. The petitioner argues, that after the decision of the Committee dated 1st April, 2022, and even after the decision taken under Section 13(2), on 6th August, 2019, he continued to remit the amount to the respondents/Bank, which was voluntarily accepted by the Bank and that in itself, will amount to be a waiver from resorting to the proceedings, under the SARFAESI Act, as a consequence of the declaration of the account as NPA on 13th June, 2012. 6. The issue would be; as to whether at all the philosophy of waiver, due to an acceptance of deposit after issuance of notice under Section 13(2) or after the decision of the Committee taken on 1st April, 2022, would apply over the Special Legislation, i.e. under the SARFAESI Act, which in itself, do not at any stage contemplate or create a bar with the secured creditor from accepting the amount, nor does it ever stipulates at any point of time, that the acceptance by any amount subsequent to the issuance of the notice under Section 13(2), would amount to be a waiver to the proceedings. Hence, the plea of waiver as agitated by the petitioner, due to the act of acceptance of the subsequent amount, this Court is of the view, that it will not be attracted, when the proceedings have already been initiated under the Act, after the declaration of the account as NPA, way back on 13th June, 2012. 7. The second limb of argument of the learned counsel for the petitioner is qua the implications of Clause 5 and 6 of the decision of the Committee dated 1st April, 2022, wherein, it had provided that if the petitioner submits a onetime settlement before Regional Manager, that will be placed before the Board of the Bank for its consideration. He submits that once this observation was made by the Committee, which was constituting the official of the respondents / Bank itself, it would be deemed that the onetime settlement scheme was available, under which, the petitioner could have opted out to settle the account by sending a proposal for one time settlement. 8. He submits that once this observation was made by the Committee, which was constituting the official of the respondents / Bank itself, it would be deemed that the onetime settlement scheme was available, under which, the petitioner could have opted out to settle the account by sending a proposal for one time settlement. 8. This argument of the learned counsel for the petitioner has been denied by the respondents on the ground, that as on the date or on the date, when the decision was taken by the Committee on 1st April, 2022, there was no such one time settlement scheme, which was in vogue, under which, the benefit under Clause 6 of the decision of the Committee could have been derived by the petitioner or could have been extended to him. 9. The learned counsel for the respondents submits, that the last one time OTS scheme, which was in vogue was that, which was made effective from 1st July, 2021 to 31st January, 2022, and thereafter, there was no such one time settlement scheme, which has been ever issued by the respondents/ Bank, under which, the offer extended by the Committee, on 1st April, 2022, could be considered in the light of the directives contained under Clause 6. The directions given by the Committee on 1st April, 2022, asking the petitioner to approach before the Bank by submitting a one-time proposal in itself will not take the shape of a statutory enforcement of a right, once the Committee itself has been constituted exclusively for the purposes of deciding the representation of the petitioner in compliance of the judgment passed by the Court on 6th January, 2022. 10. Since the constitution of the Committee itself was not an integral part of only of the provisions contained under the SARFAESI Act, its enforceability to accept a one time settlement by invoking Article 226 of the Constitution of India, and in that eventuality, when the scheme itself is not in force with the Bank, cannot be pressed into under Article 226 of the Constitution of India. 11. 11. The learned counsel for the petitioner had filed the Supplementary affidavit, annexing therein, the copy of one time settlement scheme, which he contends, that as per the said scheme, his case as envisaged by Clause 6 of the decision taken by the Committee on 1st April, 2022, would fall into for consideration, is an aspect, which has been denied by the respondent/bank; on the ground that the respondent/Bank, since being a Financial Institution, which has been framed under the Rural Banking Act, it would not covered by the Scheme, on which, that reliance has been placed by the learned counsel for the petitioner, for the reason being, that the Bank itself and its Board constituted under the Act, under which, the Bank has come into existence; has been conferred with the powers to formulate its own scheme, under which, one time settlement could be entertained, and since no such scheme, is in vogue at the time of the decision of the Committee of considering the one-time proposal, it will not be falling within the ambit of the one time settlement policy; as annexed by the learned counsel for the petitioner, and that too, particularly when, the source of the constitution of the one time settlement policy filed as SA-1 is not shown or pleaded, that it did had any legal sanctity and was issued by the competent authority on the directives or the guidelines which had been issued by the Reserve Bank of India, or by any other statutory body to give a legal blind of its enforceability under Article 226 of the Constitution of India. 12. The contention of the learned counsel for the petitioner regarding the principle of waiver, which he has argued on account of an act of acceptance of the amount after the issuance of the notice under Section 13(2) of the SARFAESI Act, is not acceptable by this Court, for the reason being, that if the principle of waiver is to be accepted, then the theory of waiver has also to be considered from the perspective, when the petitioner had earlier approach the Writ Court and filed the Writ Petition for the reliefs already extracted above. 13. 13. In fact, when the petitioner has filed the Writ Petition for the relief already extracted above and the Coordinate Bench of this Court, has confined its direction by disposing of the Writ Petition only, leaving it open to the petitioner to file a representation before the District Tourism Development Officer, Pauri Garhwal, since the representation itself which was submitted by the petitioner under the judgment of this Court will not take the shape of statutory representation, to override the provisions of a Central Legislation. The decisions taken thereof on the representation will not have any binding precedents, as such to be enforced in a Writ jurisdiction under Article 226 of the Constitution of India, and that too, if the controversy is looked into from the other perspectives, and particularly, qua the relief claimed, when the Co-ordinate Bench, while disposing of the Writ Petition on 6th January, 2022, has confined its observation and consideration from the perspective or deciding the representation, this Court is of the view, that the other reliefs, which were claimed by the petitioner, which included the relief of one time settlement under Clause 3, which was the only part, which was accommodated to be considered by the Co-ordinate Bench by the judgment dated 6th January, 2022, but so far as other reliefs are concerned, which were prayed for quashing of the correspondence made by respondents for recovering the amount, since it was not ventured into on merits by the Coordinate Bench, in its judgment of 6th January, 2022, it would amount to that the relief claimed by the petitioner stood denied, and hence, the concept of waiver since being alien to the proceedings contemplated under the Central Legislation, cannot be permitted to be argued and the directives sought for in the present Writ Petition, for considering the claim of one time settlement scheme, as directed by the Committee on 1st April, 2022, which was a non statutory Committee, no mandamus could be issued to consider the one time settlement particularly, when the bank specific stand is that the respondent bank is governed by its internal scheme of Administration, where the Board of the bank formulates the scheme and since no scheme as such is in vogue, after 31st January, 2022, even the decision taken by a non statutory Committee on 1st April, 2022, cannot be brought into within the ambit of enforcement of the one time settlement, particularly when, there is no such one time settlement scheme enforced in the bank, on the date, when the consideration was made by the Committee. 14. 14. In that view of the matter and also considering the fact that since the aspect of declaration of the account as NPA on 13th June, 2012, and issuance of the notices under Section 13(2) on 16th August, 2019, since are the proceedings, which are in continuity, the Writ Petition would not be tenable for the purposes of deciding the one time settlement, once it itself is not a part of the provisions contained under the Central Act itself, hence, the Writ Petition lacks merit and the same is accordingly dismissed. But the dismissal of the Writ Petition would not be in prejudice to the rights of the petitioner to have his grievances redressed by approaching before the Debt Recovery Tribunal under Section 17 of the Act, particularly when, the genesis of the recovery proceedings and the intricate factual controversy has germinated from the orders of the declaration of NPA, on 13th June, 2012, and issuance of the notice under Section 13(2) dated 6th August, 2019, and the petitioner may get his controversy resolved before the Debt Recovery Tribunal, where all the issues, which the petitioner has attempted to argue in the present Writ Petition would be made as a subject matter of consideration. 15. Subject to the aforesaid, the Writ Petition is dismissed. 16. After culmination of the judgment, the learned counsel for the petitioner had made reference to the pleadings raised in Para 22, seeking a parity pertaining to the extension of benefit of one time settlement, qua one of the borrowers Smt. Nisha Sah. 17. The pleadings raised in Para 22 is sworn on the basis of the personal knowledge. The personal knowledge in itself will not attribute to conclude and infer as to the extension of benefit to Smt. Nisha Sah, for one time settlement, was under which prevalent scheme of one time settlement, which was in vogue by the Bank at the relevant time, and in the absence of the same, it is difficult to extend the parity to the petitioner, when the petitioner himself has not been able to cull out in the pleadings raised in Para 22, as to whether Smt. Nisha Sah, was ever extended the benefits after the closure of the one time settlement scheme, as made effective from 3rd January, 2022. 18. For the reasons above and exceptions given, the Writ Petition lacks merits and the same is accordingly dismissed.