SCA/885720/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8857 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= SUDHIRBHAI NAGINDAS DOSHI - Petitioner(s) Versus STATE BANK OF INDIA - Respondent(s) ================================================= Appearance : MR DP KINARIWALA for Petitioner(s) : 1, MR SANDEEP N BHATT for Respondent(s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 01/09/2008 ORAL JUDGMENT Rule. Mr.Sandeep N. Bhatt, learned advocate waives service of rule on behalf of the respondent-Bank. 2. The petitioner herein has filed this petition seeking the following relief: SCA/885720/2008 2/5 JUDGMENT “Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent to act and abide by letter dated 21.04.2008, by which it was communicated to the present petitioner that the respondent-Bank has decided to accept the payment of Rs.7,50,000/- in three equal monthly instalments.” 3. This Court on 3rd July 2008 has issued notice and granted ad interim relief. 4. In response to the notice issued by this Court one, Shri Sunil Amritlal Shah, Chief Manager of the respondent-Bank has filed affidavit in reply and against that the petitioner has filed affidavit in rejoinder. 5. It is the contention of the petitioner that the respondent-Bank has valued the property, which is a residential flat and as per the valuation of the respondent-bank, the value of the said flat is Rs.7,50,000/-. Not only that vide communication dated 21.04.2008, which is annexed at Annexure 'A', Page 17 of the petition, the respondent Bank has decided to accept payment of Rs.7,50,000/- in three equal monthly instalments subject to the approval by the higher authorities. However, the higher authorities did not grant the requisite approval. It is further submitted on behalf of the petitioner that as on today, an amount of Rs.6,50,000/- is already deposited with the bank and the same is kept in No Lien Account. SCA/885720/2008 3/5 JUDGMENT Therefore, when the petitioner is ready and willing to deposit an amount equivalent to the valuation of the flat, there is no justifiable reason for the Bank not to accept the said amount and to discharge the property. 6. As against this, on behalf of the respondent-Bank, it is submitted that in Original Application No.316 of 2002, Debt Recovery Tribunal, has already passed an order and as per that order the respondent Bank is entitled to recover the amount as ordered by the Debt Recovery Tribunal in Original Application No.316 of 2002 from the petitioner in the capacity of guarantor. Therefore, any order likely to be passed by this Court would create prejudice to the right of the respondent Bank in recovering the full amount. 7. Having heard the submissions of the petitioner as well as the respondent, it is observed that if keeping the right of the respondent-Bank open to recover the amount from the principal borrower and the petitioner herein, if the respondent-Bank is directed to accept the amount of Rs.7,50,000/- and to release the property being Flat No.M-3, Ground Floor, Swastik Apartment, Opp. Bhavna Flats, Narayannagar, Paldi, Ahmedabad, after receipt of the above referred amount, the interest of justice will be served and hence the following order. SCA/885720/2008 4/5 JUDGMENT 8. In the peculiar fats and circumstances of the case, the petition is partly allowed. The respondent-Bank is directed to accept the amount of Rs.7,50,000/- (Rupees seven lac and fifty thousand only) from the petitioner giving adjustment for an amount of Rs.6,50,000/- (Rupees six lac and fifty thousand only) deposited on different dates by the petitioner, which is lying in 'No Lien' Account and after receipt of the entire amount, the respondent Bank is directed to release the property being Flat No.M-3, Ground Floor, Swastik Apartment, Opp. Bhavna Flats, Narayannagar, Paldi, Ahmedabad, and to hand over the papers of that property to the petitioner. At this stage, it is clarified that this order will not come in the way of the respondent-Bank in recovering the remaining outstanding amount from the principal borrower in any other manner in accordance with law and also from the petitioner in his capacity as guarantor. 9. Rule is made absolute to the aforesaid extent with no order as to cost. At the request of the learned advocate for the Bank, it is clarified that this order shall not be cited as precedent as it is based on the facts of this case which warranted a special treatment, with due sympathy to the petitioner. Direct service is permitted. (RAVI R. TRIPATHI, J.) SCA/885720/2008 5/5 JUDGMENT karim