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2024 DIGILAW 514 (RAJ)

Shiv Prakash Ojha v. State Bank of India

2024-03-27

AVNEESH JHINGAN

body2024
ORDER : Avneesh Jhingan, J. This petition is filed seeking directions for refund of amount to the petitioner which was deposited towards clearing the housing loan of respondent Nos.4 to 7 (herein after referred to as 'respondents'). 2. The brief facts are that the petitioner was interested in purchasing the property in dispute and on 17.10.2010 entered into an agreement to sell with the respondents. The property was mortgaged with the respondent-Bank and on failure of the respondent to maintain financial discipline, proceedings under section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act') were initiated. The petitioner served legal notice on the respondents for compliance of the agreement to sell and to clear dues of the bank. The civil suit filed by the petitioner on 01.07.2019 for specific performance and permanent injunction is still pending. In the meantime, the petitioner deposited the amount of Rs. 20,30,000/- for clearing the defaulted amount. It is undisputed fact that inspite of depositing of the amount, there was outstanding amount against the housing loan availed by the respondent. The mortgaged property was auctioned and transferred in the name of auction purchaser on 03.09.2020. 3. Learned counsel for the petitioner submits that once the property was auctioned, the amount deposited by the petitioner should have been refunded as surplus amount to petitioner. It is further argued that the petitioner was neither borrower nor guarantor and cannot avail remedy before the Debts Recovery Tribunal (for short 'DRT'). 4. SARFAESI is a self-contained Act. Section 17 provides remedy against measures taken for recovering the debts. The provision starts with a word 'Any person (including borrower)'. The petitioner has remedy before DRT in view of unambiguous language of Section 17. 5. The Supreme Court in the case of Union of India v. Satyawati Tondon and Ors. reported in [ (2010)8 SCC 110 ] has held as under:- "42. There is another reason why the impugned order should be set aside. If respondent No. 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression 'any person' used in Section 17(1) is of wide import. There is another reason why the impugned order should be set aside. If respondent No. 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression 'any person' used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective. 51. In CCT, v. Indian Explosives Ltd., the Court reversed an order passed by the Division Bench of Orissa High Court quashing the show-cause notice issued to the respondent under the Orissa Sales Tax Act by observing that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy." 6. The petition involves disputed question of facts and the petitioner is claiming right of property on the basis of unregistered agreement to sell. 7. The petition is dismissed relegating the petitioner to the alternative remedy.