C.W.P.No.9114 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.9114 of 2009 Date of Decision:- 08.06.2009 Anil Jindal ....Petitioner(s) vs. Central Bank of India and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.A.S.Jattana, Advocate, for the petitioner. Mr.Ashok Paul Jagga, Advocate, for caveator-respondents No.1 and 3. *** AUGUSTINE GEORGE MASIH, J. In the present writ petition, challenge is to the auction notice dated 14.5.2009 (Annexure P-13) issued by respondent No.3. As per the contention of the petitioner, he is owner of House No.14, Ward No.2 situated at Indri, District Karnal. He approached respondent No.1-Central Bank of India, for grant of loan to construct the house and a loan of Rs.7,00,000/- was sanctioned in his favour on 23.12.2002. Since the petitioner was unable to pay the loan, his house was put to an auction by respondent No.1 vide notice dated 10.11.2008. The said notice was challenged by him by filing C.W.P.No.21436 of 2008 which was disposed of vide order dated 22.12.2008 (Annexure P-4) by a Division Bench of this Court. As per the said order, on a statement made by the learned counsel C.W.P.No.9114 of 2009 -2- for the petitioner before the Court that the petitioner was willing to deposit the entire outstanding amount in the housing loan account on or before 30.4.2009 for which an undertaking was also given in Court, a direction was issued to the Bank not to proceed against the petitioner till 30.4.2009 by way of any coercive step for default in payment of housing loan amount. However, a liberty was given to the Bank to proceed in accordance with law for default in any other account. In view of the above order, the District Magistrate, Karnal was not passing any order on an application filed before him by the respondent- Bank for taking physical possession of the property under Sections 13 (4) and 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (hereinafter referred to as the Securitization Act, 2002). The Bank, therefore, preferred C.W.P.No.696 of 2009 stating therein that the direction issued in C.W.P.No.21436 of 2008 dated 22.12.2008 itself was very clear that the Bank would be at liberty to proceed with in accordance with law for default in any other account except the house loan account. In the said writ petition, counsel for the Bank contended that there were two other accounts, namely, Over Draft Account and Cash Credit Account totalling a sum of Rs.45,00,000/- as due by the debtor and, therefore, the District Magistrate was not, in any way, restrained by the Division Bench vide order dated 22.12.2008 from passing appropriate orders on an application filed by the Bank. The writ petition came up for hearing before a Single Bench of this Court on 15.1.2009 wherein a direction was issued to the District Magistrate, Karnal to pass appropriate orders in accordance with law, on the application preferred by the Bank under the Securitization Act, 2002, in the light of direction dated C.W.P.No.9114 of 2009 -3- 22.12.2008 passed by the Division Bench of this Court. In pursuance to these directions passed by this Court in C.W.P.No.696 of 2009, the District Magistrate, Karnal passed order dated 30.1.2009 (Annexure P-6) to provide necessary police assistance to the authorized officer of the Bank during the process of taking physical possession of the secured assets. Petitioner thereafter preferred C.W.P.No.2063 of 2009 before this Court challenging therein the order dated 16.10.2008 and order dated 30.1.2009. (Annexures P-3 and P-8 respectively). After hearing the learned counsel for the parties, a consented order dated 11.2.2009 (Annexure P-7) was passed by this Court as learned counsel for the parties had agreed for disposal of the writ petition in the following terms which read as under:- “[i] The petitioner undertakes to pay a sum of Rs.10 lacs to the respondent Bank on or before 18.2.2009; [ii] In case the petitioner deposits the afore-stated amount of Rs.10 lacs, the respondent Bank shall deliver possession of the said residential house on the very next day, i.e., 19.2.2009; [iii] however, if the petitioner deposits the afore-stated amount of Rs.10 lacs even before 18.2.2009, the respondent is directed to re-deliver the possession of the house to the petitioner either on the same day or before noon on the next day; [iv] the petitioner further undertakes to pay another sum of Rs.10 lacs on or before 7.3.2009; C.W.P.No.9114 of 2009 -4- [v] besides the entire arrears of house loan amount which the petitioner is required to deposit before 30.4.2009, he shall deposit another sum of Rs.10 lacs before the said date with the respondent Bank. The balance amount including interest, if any, shall be deposited by the petitioner before 30.8.2009; [vi] if the petitioner continues to deposit the installments as per the Schedule, given below, the respondent Bank shall not take possession of the house nor would it put any mortgaged property of the petitioner to auction; [vii] the petitioner shall deposit the afore-stated installments without prejudice to his right in the pending case before the DRT, Chandigarh; [viii] the petitioner, however, shall be entitled to disposed of the mortgaged properties in association with the Bank in such a manner that the entire sale proceeds are directly paid to the Bank; [ix] symbolic possession of the mortgaged properties, however, shall continue to remain with the respondent Bank only.” Despite the above consented order, the petitioner preferred Letters Patent Appeal No.288 of 2009 challenging the order dated 11.2.2009 (Annexure P-7), which however came to be dismissed by a Division Bench of this Court vide order dated 28.4.2009 (Annexure P-8) by imposing costs of Rs.5000/- thereby holding that there was no justification C.W.P.No.9114 of 2009 -5- for the appellant (petitioner herein) to file an appeal against an order which was based on his own consent and thus, the appeal was held to be wholly misconceived and a matter of misuse of the jurisdiction of this Court. Thereafter, the sale notice by tender dated 14.5.2009 (Annexure P-13) was issued by the respondent-Bank under Rule 6 (2) and 8 (6) of the Security Interest (Enforcement) Rules, 2002 under the Securitization Act, 2002 which has now been impugned by the petitioner in the present writ petition. The respondent Bank is on caveat. I have heard counsel for the parties and have gone through the records of the case. Counsel for the petitioner contends that as per order dated 22.12.2008 passed by this Court in C.W.P.No.21436 of 2008, the petitioner was entitled to clear the accounts of the housing loan, which he had obtained from the Bank, upto 30.4.2009. However, the Bank has proceeded to act against the petitioner much before the expiry of the said period and, therefore, such an action is contrary to the orders of this Court and, thus, the auction notice dated 14,5,2009 (Annexure P-13) cannot be sustained. On the other hand, counsel for the respondent-Bank (caveator) submits that even if as per the petitioner's own assertion the accounts which have been placed on record as Annexure P-3 are taken into consideration as on 30.4.2009, the date when the petitioner was required to repay the entire loan amount as per the order of the Division Bench, then also an amount of Rs.30791/- was outstanding against his name. To this, counsel for the C.W.P.No.9114 of 2009 -6- petitioner contends that the respondent-Bank has adjusted electricity bills for an amount of Rs.5187/- and water bill for an amount of Rs.850/- vide adjustment dated 21.4.2009 and this amount should be credited to the account of the petitioner. Even if this contention is accepted, then also the petitioner would fall short of an amount of more than Rs.24,000/-, meaning thereby that the petitioner has failed to comply with the undertaking given before the Division Bench of this Court in C.W.P.No.21436 of 2008. In any case, in view of the subsequent order passed by this Court in C.W.P.No.2063 of 2009, the petitioner was required to deposit, as per the terms of agreement, a sum of Rs.10,00,000/- with the respondent-Bank on or before 18.2.2009 which the petitioner, however, failed to deposit. As per direction No.[iv] therein, the petitioner had undertaken to pay another sum of Rs.10,00,000/- on or before 7.3.2009 which amount the petitioner has also failed to deposit. As per clause [v] besides the entire arrears of house loan amount which the petitioner was required to deposit before 30.4.2009, he was further required to deposit another sum of Rs.10,000/- which again has not been deposited by him. The question of the balance amount including interest which the petitioner was required to deposit before 30.4.2009 does not need further comments. Having failed to comply with the undertaking which he had given before the Division Bench of this Court in C.W.P.No.21436 of 2008 and thereafter in C.W.P.No.2063 of 2009, no equity lies in favour of the petitioner which would persuade this Court to take a lenient view in the matter. The petitioner having given undertakings before this Court on earlier two occasions and having failed to abide by the same, cannot now be believed to pay the back dues. C.W.P.No.9114 of 2009 -7- Finding no merit in the present writ petition which would persuade this Court to exercise its extraordinary writ jurisdiction on equity, the same stands dismissed. June 08, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No