IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.290 of 2010 (M/S) Praveen Kashyap @ Praveen Kumar & another ………..Petitioners Versus Branch Manager State Bank of India & others ….Respondents Shri Ashok Aggarwal, learned counsel for the petitioners. Shri Ashish Joshi, learned counsel for the respondents. Dated: 11th August, 2010 Hon’ble V.K. Bist, J. Present petition has been filed by the petitioners for the following reliefs: i. “Issue a writ, order or direction by issuing a writ of certiorari by quashing the possession letter dated 22.01.2009 by which possession has been taken (Annexure no.2). ii. Issue a writ, order or direction by issuing a writ of mandamus commanding the respondents to deliver the possession letter of property in question. iii. Issue a writ, order or direction by issuing a writ of mandamus directing the respondents not to take any coercive steps against the petitioners. iv. Issue a writ, order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case. v. Award the cost of petition in favour of the petitioner.” Learned counsel for the petitioners submitted that petitioners took a housing loan of Rs.8,73,000/- from the State Bank of India, Kanwali Road Branch, Dehradun on 29.02.2008 for a period of 187 months. The petitioners were required to pay monthly 2 installments of Rs.4,668/-. He submitted that due to non availability of funds the petitioners could not deposit the monthly installments in time and due to this reason the respondent bank issued a notice under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 on 18.09.2008 asking the petitioners to pay the entire amount of Rs.10,50,578/- within a period of 60 days. Aggrieved by the said notice petitioners filed a writ petition no.599 of 2009 (M/S) “Praveen Kashyap and others Vs. General Manager & others” before this Court. The said writ petition was disposed of on 29.04.2009 and the petitioners were permitted to deposit the first installment of Rs.5,00,000/- (Five Lakhs) by 1st August, 2009. It was further provided in the order that after the deposit of first installment of Rs.5,00,000/- the petitioners were permitted to deposit remaining amount in monthly installments of Rs.1,00,000/-(One Lakh) till the full payment is made. It was also provided in the order that in case the petitioners commit default in payment of even one single installment, the respondents shall be at liberty to recover the loan amount from the petitioners. Relevant part of the order dated 29.04.2009 passed by this Court is reproduced below: “As per the admitted case, the total recovery at the moment pertains slightly above Rs.10,00,000/- (Ten Lacs), therefore, under these circumstances, the first installment of Rs.5,00,000/- (Five Lacs) shall be deposited by the petitioners with the Bank by 1st August, 2009. If the petitioners deposit a sum of Rs.5,00,000/-, the remaining loan amount shall be paid in monthly installments of Rs.1,00,000/-, which will start from the month of September, 2009. In case the petitioners commit default in payment of even one single installment, the respondents shall be at liberty to recover the loan amount from the petitioners.” In compliance of order dated 29.04.2009 passed by this Court in writ petition no.599 of 2009 (M/S), the petitioners deposited Rs.5,00,000/- on 03.08.2009, Rs.1,00,000/- on 12.10.2009, Rs.1,00,000/- on 09.11.2009, Rs.1,00,000/- on 06.01.2010, Rs.50,000/- on 09.02.2010, Rs.50,000/- on 10.02.2010 and Rs.1,00,000/- on 23.02.2010. In support of this, the petitioners have annexed a copy of the statement of the amount issued by the State Bank of India, Kanwali Road, Dehradun. Thus, it is clear that the directions issued by the Court was not complied by the petitioners as amount of loan was not deposited by them as per time schedule provided by this Court in its order dated 29.04.2009. The submission of the learned counsel for the petitioners is that the petitioners took a loan of Rs.8,73,000/- on 29.02.2008 and now they have deposited entire amount of loan as they have deposited Rs.10,00,000/- (Ten Lacs) against the said amount and thus entire amount including the interest has been deposited. Therefore, respondent bank cannot proceed further under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. He further submitted that after depositing the entire amount of Rs.10,00,000/- the respondent 4 bank could not further issue possession notice. He also submitted that the respondent bank is illegally demanding Rs.3,23,466.19 from the petitioners in which interest is shown as Rs.1,40,761.19. The said letter also shows that SARFAESI charges Rs.1,50,000/-, legal charges, publication charges and charges for legal notice Rs.32,705/- were asked from the petitioners. He submitted that the respondent bank cannot charge SARFAESI charge and legal charge from the petitioners as entire amount has been paid by the petitioners as directed by this Court on 29.04.2009. He also argued that the respondent bank has already charged higher rate of interest in comparison to the rate of interest which was agreed by the bank at the time of giving loan. He submitted that higher rate of interest cannot be charged from the petitioners. Learned counsel for the respondents Shri Ashish Joshi, on the other hand, submitted that the petitioners have not complied with the order dated 29.04.2009 passed by this Court. He further submitted that the amount of Rs.10,00,000/- was not the exact amount and infact interest was not included in the said amount. It was the duty of the petitioners to deposit the entire amount of loan including interest. He further submitted that SARFAESI charges are charged from the concerned person where proceedings have been issued under the Act and there is no illegality in charging the said amount from the petitioners. Similarly, he also submitted that legal charges have rightly been charged from the petitioners. He submitted that in normal condition, the same rate of interest is charged from the person which was agreed between the parties at the time of sanction of loan but higher rate of interest is always charged as penal interest from the person who commits default in making payment of installments. After hearing learned counsel for the parties, and after examining the papers annexed with the writ petition and the counter affidavit of the respondents, I find that this Court on 29.04.2010 granted permission to the petitioners to deposit the entire amount. By the said order the petitioners were directed to deposit Rs.5,00,000/- on or before 1st August, 2009 and remaining amount in monthly installments of Rs.1,00,000/-. In my view it was not the intention of the Court that entire amount payable was Rs.10,00,000/-. The petitioners were required to deposit the amount with interest and other charges in installments as fixed by the Court. It was the duty of the petitioners to deposit the interest as well as other charges as raised by the respondent bank. As far as the argument of learned counsel for the petitioners that they have paid the entire amount including the interest is concerned, this factual controversy cannot be looked into in the writ petition. The petitioners themselves have not complied the order dated 29.04.2009 passed by this Court and they 6 cannot come again before this Court for the same reliefs which they prayed in earlier writ petition. Consequently, the writ petition is dismissed. No order as to costs. (V.K. Bist, J.) Arpan 11.08.2010