IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.2239 of 2009 ARUN KUMAR MEHTA s/o late Ram Krishna Prasad,resident of Mohalla- Bhaisasoor, Post Office – Biharsharif, P.S. Laheri,District- Nalanda. Versus 1. BRANCH MANAGER,STATE BANK OF INDIA, Main Branch, Biharsharif. 2. The State Bank of India, a Corporation in Corporates under the State Bank of India Act, 1955 having its Central Office at Maldam CAma Road, Nariman Point, Mumbai having one of the Branch known as Biharsharif Branch, District- Nalanda. 3. Rajesh Kumar s/o Gyanchand Prasad, resident of Mohalla- Bhaisasoor, P.S. Laheri, District- Nalanda at present resident of village- Khaneta, P.S. Bela, District- Gaya. ----------- 2 26.8.09 The petitioner has filed this application on apprehension of being dispossessed of the premises. The facts leading to the present litigation are that a housing loan was obtained by the petitioner along with opposite party no.3.They constructed building and divided it amongst themselves half and half with an understanding amongst themselves that they would liquidate the liability (EMI) in the ratio 60:40. Opposite party no.3 stopped contribution towards repayment of the loan. As there was substantial default, accordingly Bank exercised its right under SARFESI ACT and sought to take possession of the premises. This brought the petitioner to this Court by CWJC No. 8988/07. Opposite party no.3 was noticed but chose not to appear instead of valid service of notice. Petitioner, on the other hand, immediately agreed to clear all the dues up- to- date and undertook to pay EMI after the account is regularized irrespective of his share. On this undertaking, the Court 2 ordered that Bank should take possession of the entire premises and on payment being made by the petitioner, transfer it to the petitioner exclusively. This was in terms of the provision of the SARFESI ACT where in default , Bank has authority to take possession and transfer the property after liquidating its due . As the dues were to be paid by the petitioner, Bank was obliged to transfer the premises only to the petitioner to the exclusion of respondent no.3 and that respondent no.3 would lose his right whatever he my have and the petitioner, who has paid the entire amount would get exclusive right. It appears that Bank misunderstood this. Bank has now been threatening the petitioner that petitioner would be dispossessed. This brought the petitioner to this Court. Bank has filed a show cause. The imminent threat received by the petitioner is apparent from the show cause. In the show cause it is stated that the petitioner is in default and as such pursuant to the order of this Court Bank has exclusive right to take possession depriving the petitioner of the use but in the same show cause they admit that the account has been regularized and EMI has been paid upto June, 2009. It may be noticed that this application was filed in July, 2009 . Petitioner in this application has stated that though there is time as per EMI schedule of several years to liquidate the loan, the petitioner is fed up with the attitude of the Bank and is ready to liquidate the entire EMI amount by the end of December 2010 itself instead waiting for several years thereafter. 3 It is made clear that the petitioner is liable to pay the EMI amount as fixed and agreed and nothing . Bank will not interfere with the possession of the petitioner so long petitioner pays the EMI. On complete payment of EMI amount, as fixed, Bank would be obliged to transfer the premises in favour of the petitioner showing that in exercise of power under SARFESI ACT it took over the possession and has transferred having received the entire consideration of the loan. With this clarification the application stands disposed of. SINGH (Navaniti Prasad Singh, J.)