IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18849 of 2011 1. Sri Dinesh Sharma Son Of Late Dwarika Thakur Resident Of West Of Mit Last Gate, New Telephone Exchange, Lohiya Nagar, P.O.-Brahmapura East M.I.T., District- Muzaffarpur. Versus 1. The State Of Bihar Through The District Magistrate Cum Collector, Muzaffarpur, District-Muzaffarpur. 2. The State Bank Of India Through Its Chief General Manager Having Its Office At West Of Gandhi Maidan, Patna-800001. 3. The Regional Manager, State Bank Of India, Administrative Office, Club Road, Muzaffarpur. 4. The Authorised Officer, S.A.R. Branch, S.B.I., Mithapur, Muzaffarpur. 5. The Branch Manager, State Bank Of India, Gola Road, Muzaffarpur. 6. The District Certificate Officer, Muzaffarpur. ------------ Counsel for the Petitioner:- Mr. Shambhu Sharan Singh, Mr. Basant Kumar Tripathy, Advocates. For the Respondents:- Mr. Binay Kumar Singh, Advocate, Mr. R.S. Vidyarthi, Advocate. For the State: Mr. Siddhartha Prasad (AC to AAG-4) ---------------------------------- 04. 15.12.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner challenging the possession notice dated 14.10.2011 (Annexure-1) published in the Prabhat Khabar newspaper dated 05.10.2011 under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest 2 Act, 2002 (hereinafter referred to as ‘the Act’ for the sake of brevity) for recovery of Rs.2,34,373/- and other expenses plus interest from 01.09.2009 against the mortgaged immovable property situated in Mauza Brahmpura, Ward No. 2, Thana No.402, Circle Mushari P.S. Sadar District-Muzaffarpur measuring 1 Katha. 3. The claim of the petitioner is that he had taken loan according to the guidelines & instructions of the Reserve Bank of India as well as Ministry of Finance, Government of India regarding sanction of Education Loan for Higher Studies to the competent and talented students and also its recovery from them. 4. Learned counsel for the petitioner argued that the agreement as per S.B.I. Education Loan Scheme was approved by the respondent Bank in favour of petitioner’s son for pursuing one year higher studies course in England for which Rs.4,00,000/- was sanctioned but only Rs.3,78,333/- were given to the petitioner. He also relied upon the repayment programme as per Clause-6 of the said form in which 3 the Equated Monthly Installment were fixed at Rs.8,600/- each for 60 months beginning from April, 2006. He submits that according to the calculation the said amount comes to 5,60,000/- but the petitioner has already paid more than Rs.5,26,000/-. 5. Learned counsel for the petitioner submits that the Letter of the Bank annexed at page Nos. 32, 34 & 36 of Annexure-R/5 to the counter affidavit of the respondents is unreliable. However, he submits that the amount claimed by the respondents in possession notice dated 05.10.2011 under Section 13(4) of the Act is Rs.2,34,373.54 plus contractual interest rate and other expenses claimed from 01.09.2009. He also claims that after the said notice he had deposited Rs.75,000/- on 31.10.2011 and Rs.60,000/- on 10.11.2011 and is ready to pay the remaining amount as per the said notice. 6. Learned counsel for the petitioner also argued that the order of the Lok Adalat dated 16.10.2011 (Annexure-R/6) relied upon the respondents is absolutely illegal and perverse as Lok Adalat had no jurisdiction to pass orders without any 4 agreement. In this connection he relied upon a decision of the Apex Court in the case of State of Punjab and Another V. Jalour Singh and others reported in (2008) 2 Supreme Court Cases 660 at paragraphs- 8 & 9. 7. On the other hand learned counsel for the respondents contests the claim of the petitioner and argued on the basis of the materials brought on record. 8. From the averments of learned counsel for the parties and the materials on record it is not in dispute that a loan of Rs.4,00000/- was sanctioned as per S.B.I. Education Loan Scheme for one year higher studies course of the petitioner’s son and the EMI of Rs.86,00/- per month was fixed from April, 2006 to be paid regularly till 60 installments. Since the petitioner did not pay the EMI regularly, the amounts including interest etc. escalated and due to non-payment of the said amount the security provided by the petitioner was declared as non-performing assets and a notice under Section 13(2) of the Act was issued by the authorities on 06.07.2011. 5 9. Learned counsel for the respondents has claimed that the said notice was sent to the petitioner through post for which postal receipt is with him but learned counsel for the petitioner denied any such receipt. 10. It further transpired that when no objection under Section 13(3)(a) was received from the petitioner, the bank issued possession notice dated 05.10.2011 under Section 13(4) of the Act. It was only thereafter that the matter travelled to the Special Lok Adalat held by the Debts Recovery Tribunal, in which negotiation was held between the Bank and the Borrower (petitioner) and initially the borrower offered Rs.2.08 lacs which was refused by the respondent, who claimed Rs.3.5 lacs as full and final compromise amount in view of the economic condition of the petitioner. 11. It transpires that looking to the circumstances of the case and intention of the borrower as well as economic condition of the borrower, the Lok Adalat was of the considered opinion that the ends of justice will be served, if the case is settled for Rs.3.05 6 lacs which the borrower also agreed to pay and the bank was ready to accept the same. This fact is apparent from a plain reading of the order of the Lok Adalat dated 16.10.2011. Hence the said order of Lok Adalat cannot be said to be without consent of the parties and accordingly this objection of the petitioner against the said order is frivolous and misconceived and the case law cited by him is also not applicable to the facts and circumstances of the case. 12. It is quite strange to note that this writ petition was filed on 21.10.2011 after the aforesaid order was passed by the Lok Adalat on 16.10.2011 but no copy of the said order had been annexed by the petitioner nor any mention with respect thereto had been made in the petition. In the said circumstances it is apparent that petitioner has not come to this Court with clean hand. 13. Initially the petitioner did not pay EMI as per the terms agreed and later when possession notice under Section 13(4) of the Act was issued, he did not challenge the same in appeal. Furthermore, when the matter was decided by the Lok Adalat on 7 consent of the parties on 16.10.2011, he approached this Court on 19.10.2011 but no mention of the said order of the Lok Adalat was made in the writ petition. 14. In the said circumstances, this Court does not find any reason to interfere with the matter and accordingly this writ petition is dismissed. Mkr. (S.N.Hussain, J.)