IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15699 of 2010 ASHA DEVI W/O HARI NARAYAN PRASAD R/O CHANDRA GOKHUL ROAD, P.S.- GOPALGANJ TOWN, DISTT.- GOPALGANJ … PETITIONER Versus 1. PUNJAB NATIONAL BANK THROUGH ITS CHAIRMAN-CUM- MANAGING DIRECTOR 7, BIKHA JI CAMA PLACE, NEW DELHI-110066 2. ZONAL MANAGER, PUNJAB NATIONAL BANK ZONAL OFFICE, CHANAKYA PLACE, R-BLOCK, PATNA 3. REGIONAL MANAGER PUNJAB NATIONAL BANK, REGIONAL OFFICE, SARAIYA GANJ, MUZAFFARPUR 4. CHIEF MANAGER-CUM-AUTHORISED OFFICER SARFAISI ACT, SARIA GANJ, MUZAFFARPUR 5. BRANCH MANAGER PUNJAB NATIONAL BANK, GOPALGANJ BRANCH, CHANDRA GOKHULA ROAD, GOPALGANJ 6. SUPERINTENDENT OF POLICE, GOPALGANJ, DISTT.- GOPALGANJ …. RESPONDENTS ----------- For the Petitioner : Mr. Prabhat Ranjan No.1, Advocate For the Respondents : Mr. Abhay Kumar Singh, Advocate --------- 10/ 28.03.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner for quashing possession notice dated 21.08.2010 (Annexure 5) issued by the Chief Manager-cum-Authorised Offricer (respondent no.4) under the provision of section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as `the Act’ for the sake of brevity ) as well as for directing respondent-Punjab National Bank (hereinafter referred to as `the Bank’ for the sake of brevity ) to get the entire loan account calculated by an independent auditing agency or Chartered Accountant so that the correct outstanding may 2 be arrived at . 3. Learned counsel for the petitioner submits that the loan was sanctioned to her and, whereafter, E.M.I. was fixed, which she paid continuously without fail, hence there was no question of her account becoming non-performing asset ( NPA). He further submits that in the said circumstances there is basic lack of jurisdiction in the authorities to initiate a proceeding under section 13 of the Act. He also argued that when the EMI is fixed, there cannot be any question of adding to it any floating rate of interest as EMI is fixed after consideration of the entire interest including future interest. He also states that the respondents have never given any detail of amount due after calculating EMI, which was paid regularly by the petitioner. He also avers that petitioner has always been ready and willing to pay the remaining loan amount, but it is the failure of Branch Manager of the Bank (respondent no.5), who had not informed the petitioner about the calculations and started making demands even during the period of moratorium merely to harass the petitioner, who has been paying the EMIs regularly without fail. He also argued that the attitude of the Branch Manager of the Bank (respondent no.5) will be clear from the fact that even the court expenses have been added to the amount claimed by the Bank as is apparent from Bank’s letter dated 01.10.2008 (Annexure 3). 4. From the averments made by learned for the parties and the materials on record, it is quite apparent that the petitioner 3 had availed of housing loan from respondent-Bank in the year 2003 for the amount of Rs.6 lacs, repayment of which was to start after eighteen months of moratorium in sixty equal monthly instalments of Rs.10,000.00 as EMI. It further transpires that the account of the petitioner was declared NPA on 31.03.2007, whereafter notice under section 13(2) of the Act was sent to the petitioner on 29.04.2008 and the petitioner filed his objection under section 13(3-A) of the Act on 24.06.2008. The claim of respondent-Bank is that the said objection was rejected on 03.07.2008, but petitioner claims that no information regarding the same had ever been given to her. 5. The record of the case shows that C.W.J.C. No. 10994 of 2008 was filed by the petitioner against the initiation of the proceeding under section 13 of the Act and the said writ petition was disposed of by a Bench of this Court vide order dated 26.09.2008 (Annexure 2) with following observations :- “In my view, there being a bonafide dispute, the Bank ought not to have been resorted to SRFAESI proceeding instead ought to have settled the matter with the petitioner. In my view, if the petitioner pays up the over due as of 1st December, 2008 then he would be liable to be extended the benefit of the subsisting accrual to liquidate the balance in the manner stipulated therein to be Rs. 10,000/- per month towards principal plus monthly accrual interest at PLR. Petitioner would be considered by the Bank as this Court find equitable for any other relief that may be given because this Court must notice that the correspondences addressed to the petitioner were in fact quite misleading and unwarranted. In the hope that the matter would amicably be settled, this writ petition is disposed of with the above observation. The SRFAESI proceeding would be kept in abeyance for a period of thee months from today. In between, the parties should come to a settlement.” 4 6. In view of the aforesaid observations of a Bench of this Court, the petitioner filed her application dated 27.09.2008, which was disposed of by the Senior Manager of the Bank vide letter dated 01.10.2008 (Annexure 3) holding that as per the order of the High Court, the amount due would be Rs.4,57,602.00 and Advocate’s fee would be Rs.11,768.00 till 01.12.2008. Against the said order, the petitioner filed C.W.J.C. No. 17282 of 2008, which was disposed of by a Bench of this Court on 06.05.2010 (Annexure 4) holding as follows : “The petitioner’s failure to carry out the earlier direction of the Court and having taken advantage of the order cannot be allowed to not meet her obligation and keep it in abeyance for all times. Respondent-Bank may proceed in the matter in accordance with law in view of above”. 7. In view of the aforesaid order of this Court dated 06.05.2010 (Annexure 4), the impugned possession notice under section 13 (4) of the Act was issued by the respondent-Bank on 21.08.2010 (Annexure 5), against which remedy of appeal lies under section 17 of the Act before the Debts Recovery Tribunal. 8. In these circumstances, this writ petition is disposed of with a liberty to the petitioner to file an appeal before the Debts Recovery Tribunal under section 17 of the Act. If such an appeal is filed along with a copy of this order as well as an interlocutory application for condoning the delay within thirty days from today, the appellate court shall consider the delay caused in the appeal due to the pendency of this writ petition and shall decide the same on merit expeditiously in accordance with law. The 5 petitioner will be at liberty to formulate her points before the aforesaid appellate authority. If the petitioner wants an interim relief, she may file an interlocutory application before the appellate court, which, if filed, shall also be decided expeditiously in accordance with law. MPS/ ( S. N. Hussain, J. )