IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16084 of 2009 1. SHABIHA KHATOON @ SABIHA KHATOON WIDOW OF LATE BADARU ZAMA R/O SADARUDIN CHAK, P.O- HABIBPUR, P.S- HABIBPUR, DISTT- BHAGALPUR Versus 1. THE INDIAN BANK THROUGH ITS AUTHORISED OFFICER, RECOVERY CELL, CIRCLE OFFICE, GOVIND BHAWAN, NEW DAK BUNGLOW ROAD, PATNA 2. THE AUTHORISED OFFICER, THE INDIAN BANK, RECOVERY CELL, CIRCLE OFFICE, GOVIND BHAWAN, NEW DAK BUNGLOW ROAD, PATNA 3. THE BRANCH MANAGER, INDIAN BANK, BHAGALPUR BRANCH AT BHAGALPUR ----------- 7 29/03/2010 Petitioner was granted certain cash credit facility in the name of M/S. Fauzia Iron Stores by Bhagalpur Branch of Indian Bank. Petitioner claims that she was a Pardanashin woman and the business dealing was being handled by her husband which she was not fully aware and also about all the consequences of the said cash credit facilities. Husband of the petitioner, namely, late Badruzzaman died on 31.12.2008 in an accident. The business naturally floundered and the Bank decided to take action against the petitioner under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short SARFAESI ACT). Against the action of the respondent Bank the - 2 - petitioner filed the present writ application making a prayer to direct the Bank to settle the dues and not auction the property. She decided to re-pay back the outstanding dues provided certain indulgence was granted to her in this regard. During the pendency of the writ application, it is not in dispute that the petitioner had paid back money to the respondent Bank and the account to that extent stands settled and resolved. While the writ application was pending adjudication, an application being I.A. No. 829 of 2010 came to be filed by one Pankaj Kumar Rana making a prayer for his impleadment in the writ application on the ground that the petitioner had not stated true facts. Proceeding initiated under the SARFAESI Act had already reached finality. The property put on auction by the respondent Bank has been auction purchased by him on 31.10.2009 and a kind of right has accrued in his favour. In the above stated circumstance, I.A. No. 829 of 2010 is allowed. No doubt, when the writ application was taken up on 27.11.2009 this aspect was not pointed out to the Court but the respondent Indian Bank was directed to file a counter - 3 - affidavit and the matter was taken up subsequently on 11.01.2010. The position in this case stood that the petitioner had paid back money to the Bank for which auction sale has to be resorted to. If during the pendency of the writ application the petitioner had not effected re-payment and resolved the accounts then the equity would have tilted against the petitioner and the Court would have been compelled to consider passing an order in favour of the intervenor but keeping in mind that the petitioner happens to be a widow who has made re-payments, may be after she was pushed to the wall, the Court is inclined to hold the auction sale of the property in question to be invalid and of no consequence for after all the property had to be auction sold for non payment and if re-payment has been made which is not disputed, then the Court would not like to pass an order which has the effect of ousting the petitioner from her dwelling house. Submission of the learned counsel for the Intervenor is that a right had accrued. He was a bona fide purchaser based on the auction notice and money has been deposited by him with the respondent Bank but it is also a - 4 - fact that the pendency of the writ application had compelled the Bank not to encash money or payment which have been made by the auction purchaser and the Bank draft deposited by him is still lying in the Bank as of today. In the circumstances, the respondent Bank is hereby directed to refund the money of the auction purchaser immediately and the present writ application comes to rest with a further direction upon the Bank that the Bank is obliged now to return all the papers of the mortgaged property in so far as loan of M/S. Fauzia Iron Store is concerned. The Court is not impressed by the submissions of the learned counsel that they have a right to hang on to the paper concerned of the mortgaged property even for this account because the dues of another account, namely, Maria Cycle Stores does not cover the total loan figure. On the submissions made on behalf of the learned counsel for the Bank this Court can only observe that recovery of Maria Cycle Stores will have to be effected from the security and the mortgaged property of Maria Cycle Stores. So far as the present account is concerned, the petitioner is entitled for return of the documents which were - 5 - pledged for the loan of Fauzia Iron Stores. The Court expects the Bank to return the document to the petitioner within a period of four weeks from today. This writ application stands allowed. AMIN (Ajay Kumar Tripathi, J.)