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2023 DIGILAW 761 (KAR)

Mariya W/o Late Azhar Nadeem v. Chief Manager, Bank of India, Hassan Branch

2023-06-12

KRISHNA S.DIXIT

body2023
ORDER : 1. Petitioner-borrower is knocking at the doors of Writ Court for laying a challenge to the DRT Order dated 14.03.2023 at Annexure-N whereby her SA No. 30/2023 has been negatived. In the said SA, the Petitioner had put in challenge the Auction Notice vide Paper Publication dated 03.01.2023, whereby coercive proceedings for the recovery of outstanding loan amount of Rs. 1,23,19,862/-. Learned counsel for the Petitioner apart from pleading the financial difficulty, submits that the impugned order is bereft of elements of justice; when his client being the guarantor of her late husband’s debts was ready and willing to settle the claim of the Bank, the DRT ought not to have passed the impugned order. 2. Having heard the learned counsel for the Petitioner and having perused the Petition papers, this Court declines indulgence in the matter broadly agreeing with the reasoning of the learned Presiding Officer of the DRT-II, Bengaluru. There is no dispute as to the loan transaction Petitioner’s husband with the Respondent-Bank and Petitioner herself being the guarantor. The repayment of the loan was secured by the immovable properties; despite Notice of Demand, the repayment was not done; that being the position, the Item Nos. 2 and 3 of the Scheduled Properties came to be auctioned in terms of the liberty given by the DRT on 09.02.2023. 3. Learned Presiding Officer of the DRT-II at paragraphs 5 and 6 has recorded a finding as to learned counsel for the Petitioner appearing there on 08.03.2023 & 10.03.2023 refused to argue the matter, contending that when his client intended to settle the liability, there was no question of him arguing the matter. This is not a happy thing to happen. A lawyer is engaged by a litigant for arguing the matter. The so called offer to settle the dispute was put forth only after the auction of the property was done and third party rights were created in two of the three properties, although confirmation of the auction was deferred. All that was done as a matter of concession. 4. It is pertinent to mention here that in terms of Memo offering to settle the amount due i.e. Rs. All that was done as a matter of concession. 4. It is pertinent to mention here that in terms of Memo offering to settle the amount due i.e. Rs. 1,23,19,862/- (One Crore Twenty Three Lakh Nineteen Thousand and Eight Hundred Sixty Two Rupees) only, the SA has been disposed off by the impugned order with the following observations at paragraph No. 8: “As the applicant and the counsel submits that they intend to settle the liability, nothing survives for arguments. Hence, SA may be disposed of, recorded the submission of the applicant. Accordingly, SA disposed of. The submissions of the Ld. Counsel for the applicant is recorded and the applicant is at liberty to approach the bank for any settlement in accordance with law. The liberty given to applicant is not to be construed as a right, as the applicant has already waived her right to redemption available under S.13(8). Interim order dated 09.02.2023 stands vacated. The respondent bank is at liberty to proceed in confirming the sale and Registration of the Sale Certificate in accordance with law.” 5. In the above circumstances, this Writ Petition is rejected in limine. 6. Registry to send a copy of this order to the 1st and 3rd Respondents by Speed Post immediately.