Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 954 (RAJ)

Satyawati Gehlot v. State Bank of India

2023-04-27

NUPUR BHATI

body2023
ORDER : (Nupur Bhati, J.) The writ petition has been filed under Article 226 of the Constitution of India with the following prayers:- "(i) The declaration of the petitioner's loan account as Non Performing Assets (NPA) by the respondent bank may kindly be declared illegal and be quashed and set aside. (ii) The notice dated 01.07.2021 (Annexure-8) issued under Section 13(2) of the Act of 2002 issued by the respondent bank may also kindly be quashed and set aside. (iii) The respondent bank may kindly be directed to reconsider the petitioner's application for restructuring of loan account under its policy dated 01.09.2020 (Annexure-6) considering the loan account as regular account. (iv) Any other appropriate order or direction, which may be deemed just and proper may kindly be passed in favour of the petitioner." 2. Brief facts of the case are that the petitioner had applied for a home term loan facility with the respondent bank which was sanctioned on 26.10.2016 for a loan amount of Rs. 40,00,000/- for the residential plot situated at Dhoron ka Bas, Ward No.5, Kumharon ka Mohalla, Bikaner ad measuring 371 square yards in the name of Shivratan Gehlot. The husband of the petitioner was pledged as collateral security for securing the aforementioned home term loan facility. The amount of Rs. 40 lacs was sanctioned on 26.10.2016 and the same was debited to the loan account of the petitioner on 01.11.2016 and the installments were started from December, 2016, the petitioner has regularly paid the installments to the tune of Rs.43,500/-. The petitioner has regularly deposited the installments of the loan account and Rs.5,22,000/- against the 12 installments were deposited till 2018, 2019 and in January, February and March, 2020. On account of Covid pandemic-2019 in March, 2020 there was a complete lockdown enforced by the State Government and on account of the same, the repayment of the monthly installments was also exempted to those loanee who were industrialists on account of stoppage of business activity and who were not in a position to make payments, such exemption was granted from March 2020 to August, 2020 for a period of six months as per the RBI guidelines. A policy was issued by the respondent bank on 01.09.2020 for Covid-19 related stress framed on the basis of policy statement issued by RBI on dated 06.08.2020. A policy was issued by the respondent bank on 01.09.2020 for Covid-19 related stress framed on the basis of policy statement issued by RBI on dated 06.08.2020. Thereafter, the petitioner was advised to make application for availing the benefit of this policy for restructuring her loan and accordingly, the petitioner submitted an application with the deposition of Rs. 20,000/- in the loan account of the respondent bank. The respondent bank officials assured that restructuring of her loan would be done as soon as approval was received. Thereafter, the respondent bank asked the petitioner to deposit some more amount as the approval was not received and the petitioner deposited some more amount with the respondent bank. The respondent bank informed the petitioner on 22.01.2021 that as two installments were due uptill February, 2020 therefore, the petitioner could not be given the benefit of the policy for restructuring of the loan account. The petitioner thereafter, again approached the respondent bank on 15.02.2021 for extending her the benefit of the policy for restructuring of the loan account however, the respondent bank refused and warned them that the due amount be deposited uptill 25.02.2021 or else the loan amount would be declared as Non Performing Assets (NPA). The petitioner being aggrieved of the same, preferred an application under Section 22-B of the Legal Services Authority Act, 1987. A reply was filed by respondent bank denying all the averments in it. The Permanent Lok Adalat, Bikaner had disposed of the application vide order dated 23.02.2021 treating it as not maintainable as the relief claim could not be granted by the Permanent Lok Adalat however, the respondent bank was directed to place the application before the higher authorities. During the pendency of the application before the Permanent Lok Adalat, the loan account was declared as NPA on 25.02.2021 and notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as Act of 2002) was issued on 01.07.2021 demanding Rs.37,25,570/- as on 01.07.2021 (inclusive interest up to 30.06.2021) which had to be deposited within a period of 60 days from the date of receipt of the notice. The petitioner being aggrieved of the same, has preferred the writ petition. 3. The petitioner being aggrieved of the same, has preferred the writ petition. 3. Learned counsel for the petitioner fairly accepts that the prayer No.1 and 2 of the writ petition have become infructuous and submits that prayer No.3 i.e. "The respondent bank may kindly be directed to reconsider the petitioner's application for restructuring of loan account under its policy dated 01.09.2020 (Annexure-6) considering the loan account as regular account." still survives. 4. Learned counsel for the respondent submits that the petitioner cannot press the prayer No.3 before this Court while invoking the writ jurisdiction under Article 226 of the Constitution of India while placing reliance upon the judgment of Hon'ble Apex Court in the case of M/S South Indian Bank Ltd. & Ors. v. Naveen Mathew Philip & Anr. and the relevant portion of the judgment is reproduced as under: "13. In view of the fair stand taken by the learned Senior Counsel appearing for the appellant, we do not wish to interfere with the impugned orders passed. We may, however, reiterate the settled position of law on the interference of the High Court invoking Article 226 of the Constitution of India in commercial matters, where an effective and efficacious alternative forum has been constituted through a statute. We are also constrained to take judicial notice of the fact that certain High Courts continue to interfere in such matters, leading to a regular supply of cases before this Court. One such High Court is that of Punjab and Haryana." 5. He further places reliance upon the another judgment of Hon'ble Apex Court in the case of Varimadugu Obi Reddy v. B. Sreenivasulu and its relevant part of the judgment is reproduced as under: "36 In the instant case, although the respondent borrowers initially approached the Debts Recovery Tribunal by filing an application under Section 17 of the SARFAESI Act, 2002, but the order of the Tribunal indeed was appealable under Section 18 of the Act subject to the compliance of condition of pre-deposit and without exhausting the statutory remedy of appeal, the respondent borrowers approached the High Court by filing the writ application under Article 226 of the Constitution. We deprecate such practice of entertaining the writ application by the High Court in exercise of jurisdiction under Article 226 of the Constitution without exhausting the alternative statutory remedy available under the law. We deprecate such practice of entertaining the writ application by the High Court in exercise of jurisdiction under Article 226 of the Constitution without exhausting the alternative statutory remedy available under the law. This circuitous route appears to have been adopted to avoid the condition of predeposit contemplated under 2nd proviso to Section 18 of the 2002 Act." 6. Learned counsel for the respondent also draws attention of this Court towards application (I/A No.01/23) filed by the petitioner for placing on record the latest account statement and for issuing further direction to respondent to extend the benefit under the policy on resolution framework for Covid-19 related stress, in which the petitioner herself has stated that the prayer No.1 and 2 mentioned in the writ petition have become irrelevant in light of subsequent event mentioned in the para 6 of the application, which is reproduced as under" "That the prayer qua the setting aside of declaration of the loan account as NPA and quashing of notice dated 01.07.2021 is concerned, both have now became irrelevant in light of subsequent event as the majority of the outstanding amount has already been deposited by the petitioner." 7. Learned counsel for the petitioner further submits that the respondents are under the obligation to extend the benefit of the policy dated 01.09.2020 while taking into consideration that on account of pandemic of Covid-19, the petitioner was not in a position to repay the loan amount and therefore, respondents were under the obligation to extend her the benefit of restructuring of the loan account in light of the policy dated 01.09.2020. 8. Learned counsel for the respondents objects to the same and submits that the statutory remedy is available to the petitioner under the Act of 2002 & therefore, the petitioner cannot invoke writ jurisdiction under Article 226 of the Constitution of India. He further places reliance upon the judgments of Hon'ble Apex Court in the cases of M/S South Indian Bank Ltd. & Ors. v. Naveen Mathew Philip & Anr. and Varimadugu Obi Reddy v. B. Sreenivasulu. 9. Heard learned counsel for the parties and perused the material available on record. 10. He further places reliance upon the judgments of Hon'ble Apex Court in the cases of M/S South Indian Bank Ltd. & Ors. v. Naveen Mathew Philip & Anr. and Varimadugu Obi Reddy v. B. Sreenivasulu. 9. Heard learned counsel for the parties and perused the material available on record. 10. Having regard to the facts and circumstances of the case, this Court is not inclined to grant indulgence in the writ petition on the ground that the SARFAESI Act of 2002 lays down a specific provision of a statutory remedy being available to the petitioner before Debt Recovery Tribunal and the petitioner is unable to establish that the DRT is not an efficacious and effective remedy for her as well as any extraordinary circumstances due to which the writ petition can be entertained by this Court while exercising jurisdiction under Article 226 of the Constitution of India and thus, the writ petition is dismissed. 11. Needless to observe that the petitioner is at liberty to take up her grievance before the appropriate forum.