1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 714 of 2010 Mr. Ashok B. Pokharkar & anr. ....Petitioners Vs. Dattatray Maharaj Kalambe Jaoli Sahakari Bank Ltd. & ors. ....Respondents Mr. S.M. Gorwadkar with Mr. Pramod Kathane, Advocate for the petitioners. Mr. Pradeep S. Gole, Advocate for respondents 1 & 2. Mr. S.R. Nargolkar, AGP for respondents 3 & 8. CORAM:- A.M.KHANWILKAR AND R.M.SAVANT, JJ DATED:- March 15, 2010 P.C.: Heard Counsel for the parties. 2. By this Petition under Article 226 of the Constitution of India, the Petitioners are challenging the attachment order dated 9th December, 2009 and remittance order dated 23rd December, 2009 passed by the Special Recovery Officer. Further, it is prayed that direction be issued to Respondent No. 1 to implement the OTS Scheme sanctioned in favour of the Petitioners as per the directions of the Government Resolution dated 10th March, 2008. 3. The fact that OTS Scheme was sanctioned in favour of the Petitioners 2 in consonance with the Government Resolution dated 10th March, 2008, is not in dispute. That approval was granted on 16th March, 2009. As per the said scheme, Petitioners amongst others were obliged to deposit 25% of the specified amount within one month from the date of approval of the scheme qua the Petitioners. According to the Petitioners, this approval letter was received by the Petitioners on 21st March, 2009; and the one month period for depositing 25% of the amount ought to be reckoned from that day. Assuming that we were to accept this contention, the question is whether the Petitioners deposited 25% of the amount within one month from that date. The admitted fact is that the Petitioners deposited only Rs. 6 lacs against two different loan accounts as is noticed from the document at Exhibit ‘H’ at pages 79 and 80 respectively. In other words, the Petitioner deposited only a sum of Rs. 6 lacs as against the aggregate 25% amount of the three loan accounts, would work out to be Rs. 7,94,492.70 paise, as per the OTS Scheme. According to the Petitioners, the Petitioners had also deposited Rs. 1.50 lacs in the third loan account which has not been taken note of in document at page-81, though the deposit so made has been acknowledged by the Bank which is noticed from endorsement on the communication dated 30th March, 2009. The fact remains that the entire 25% of the specified amount was not deposited by the Petitioners within one month period from the date of approval of OTS Scheme. The argument of the Petitioners that before one month period was completed, the Respondent Bank withdrew the OTS Scheme. That does not take the matter any further. It would have been a different matter if the Petitioners had shown eagerness to deposit the entire 25% amount within one month from the date of approval of the Scheme which ought to have been done before 16th April, 2009. However, until that date, the Petitioners at best deposited Rs. 7.5 lacs and not the entire 25% amount of Rs. 7,94,492.70 paise. 3 3. Moreover, from the communication which was sent to the Petitioners dated 24th March, 2009, the Petitioners were expected to submit application for granting installments of the remainder amount in eleven months time. No such application was preferred by the Petitioners. Even this condition in the OTS Scheme read with the communication dated 24th March, 2009 was not fulfilled by the Petitioners. Thus understood, it is not open to the Petitioners to insist that the Petitioners are entitled to continue with the OTS Scheme or that the amount already deposited by the Petitioners from time to time be considered as satisfaction of the claim of the Respondent Bank as per the OTS Scheme. 4. In our opinion, from the facts which emerge from the record, the Petitioners have failed to comply with the conditions specified in the OTS Scheme and, therefore, disentitle themselves from getting any benefit thereunder. The consequence thereof is that the Petitioners became lliable to pay the entire outstanding amount in the Books of Accounts of the Respondent Bank alongwith accrued interest thereon which at the relevant time as on 28/2/2009 was stated to be Rs. 42,24,054/-. Since the total amount deposited by the Petitioners, according to the Petitioners, works out to only around Rs. 39/- lacs, no fault can be found with the Bank in proceeding to issue attachment order and remittance order to recover the balance outstanding dues payable to the Bank by the Petitioners herein. Taking over all view of the matter, therefore, no interference is warranted in the fact situation of the present case. 5. Counsel for the Petitioners submits that assuming that the Petitioners are not entitled to avail of the OTS Scheme, in that case, the questions raised 4 by the Petitioners regarding the correctness of the demand made by the Respondent Bank as reflected in the Books of Accounts of the Respondent Bank or for that matter the loss and damage caused by the Respondent Bank due to the unilateral action of removing the machinery and movable property of the Petitioners will have to be decided on its own merits. We have no difficulty in accepting this submission of the Petitioners. Thus, we are not examining the issue regarding the correctness of demand including the rate of interest levied by the Respondent Bank or relating to the claim of damages and compensation. In other words, dismissal of this Petition will not come in the way of the Petitioners to pursue any other remedy against the Respondent Bank for that relief or for that matter it will be open to the Respondent Bank to ask for counter claim or pursue any other remedy as may be permissible in law. Petition disposed of on the above terms. 6. At this stage, Counsel for the Petitioners makes grievance that during the pendency of this Petition, the Respondent Bank has taken forcible possession of the attached property belonging to the Petitioners which could be done only in the event the Respondent Bank were to notify the property for auction and not in anterior point of time. However, no relief has been claimed in the present Petition in that behalf. Our attention is invited to the averments in the affidavit filed on behalf of the Petitioners in this Court. In absence of specific relief, it is not possible to examine this controversy. It will be open to the Petitioners to take recourse to appropriate remedy in that behalf in which all the questions will be considered on its own merits. (R.M. SAVANT, J) (A.M.KHANWILKAR, J) 5