Back
2008 Supreme(Guj) 105
2008 (2) GCD 1584 (Guj)
Hon’ble Mr. Justice Jayant Patel
Gaurangbhai Bipinbhai Pandya [Ahmedabad]
Versus
Bank of Baroda Thro’ & Anr.
Special Civil Application No. 22089 of 20071—Decided on 18/03/2008
Mr. Jal Soli Unwala, for the Petitioner No. 1.
Ms. Nalini S. Lodha, for the Respondent No. 1.
Notice Served by DS, for the Respondent No. 2.
Important Point :
Recovery of loan amount—Retaintion of surplus amount by Bank.
Headnote:Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Central Act 54 of 2002)—Sections 13, 35 and 37—Housing loan—Repayment—Disposal of property—Retaintion of excess amount by Bank—Validity—Petitioner taken housing loan—Proceeding initiated before DRT—Proceedings initiated for disposal of property—Petitioner challenged action of Bank in writ petition against which LPA was preferred and same was dismissed however petitioner was given liberty to offer buyer—Petitioner submitted offer through that buyer of higher amount and money has been realised by Bank as offered—Surplus amount of Rs. 16,75,890.75 remanded as balance with Bank—Bank did not return the amount and communicated to petitioner that amount is kept in Sundry Deposit account—Held, Bank should return the amount of Rs. 16,75,890.75 with interest @ 8% p.a. to petitioner.
Held :
In view of the discussions and the observations, it appears that the respondent Bank was holding the money in trust, and was required to return the residue of the amount of Rs.16,75,890.75 ps. to the petitioner, and the action of the Bank to retain the amount under the alleged right of lien, can be said as beyond its power, since, the said alleged right of lien is based on the loan transaction with the company, which is altogether a separate loan transaction, and in such loan transaction the capacity of the petitioners are as that of the Director or Guarantor as the case may be and the company is the loanee. [Para 16]
Action of the Bank is found without authority, more particularly when the money held by it was as the trustees. The lawful obligation was created to return money, but if not returned, the interest by way of compensatory measure is required to be awarded. The fact remains that Bank has retained money and has enjoyed money, and the petitioners are deprived of the legitimate amount of interest at the rate prevailing for the minimum investment of one year in all Nationalised Bank. Hence, Courts finds that by way of compensatory measures, the interest can be awarded at the rate of 8 percent per annum. Therefore, the said contention of the Counsel for the respondent Bank cannot be accepted. [Para 26]
In view of the action of the Bank of not returning amount of Rs. 16,75,890.75 ps. and of retaining the same can be said as without right, or authority and consequently the Bank will be required to return amount of Rs. 16,75,890.75 ps. with interest at the rate of 8 percent per annum, which is prevailing rate of interest on the FDR investment. As the Bank has already deposited the amount with this Court, pursuant to the order dated 18.02.2008, the petitioner would be entitled to withdraw the same from this Court. The amount of accrued interest shall be paid by the Bank to the petitioner within the period of four weeks from today by A/c payee cheque [Para 27]
Petition Allowed
Jayant Patel, J.—Rule. Ms. Nalini S. Lodha learned Counsel waives service of notice of rule for Respondent Nos. 1 and 2.
2. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard today.
3. The short facts of the case appear to be that the petitioners in the respective petitions, who are husband and wife, had taken housing loan and as the loan was not paid, the proceedings were initiated before the Debt Recovery Tribunal, and ultimately, thereafter the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as to the ‘Securitisation Act’) were initiated for disposal of the property. It appears that when the process of disposal of the property was undertaken, the petitioners had challenged the action of the Bank, by preferring writ petition and the said writ petition was dismissed, against which the LPA was preferred, and the same was also dismissed being SCA No. 2004 of 2006 with 1995 of 2005, and the LPA No. 903 with 904 of 2006. However, as the liberty was given to the petitioner to offer buyer, for the higher amount by approaching before the Bank, the petitioner had submitted the offer through that buyer of the higher amount, and it is an admitted position that the money has been realised by the Bank as offered. The Bank in view of its security interest in the property, has recovered the full amount, and it is also not in dispute that the surplus amount of Rs. 16,75,890.75 ps. remained as balance with the Bank, towards action taken under the Securitisation Act.
4. The grievance of the petitioner is that it was required for the respondent Bank to return the amount of Rs. 16,75,890.75 ps. to the petitioner, but the Bank did not return the amount, and communicated to the petitioner that the amount is kept in Sundry Deposit Account, and the matter is referred to the higher authority. Therefore, under these circumstance, the petitioner has preferred the present petitions.
5. Heard Mr. Unwala learned Counsel for the petitioner, and Ms. Lodha learned Counsel appearing for the respondents.
6. It appears that as per the respondent bank, it has right of lien as per the deed of guarantee enter into by the petitioner, on 19.01.2000, in connection with the loan transaction with M/s. Printpack Industries Limited (presently in liquidation for the sake, of convenience it shall be referred to as ‘company’) which was granted loan for the credit facility aggregating Rs. 328 lacs. It is also the case of the respondent Bank that as the amount was not paid by the aforesaid company, and the petitioners in capacity as the Director or the Guarantor, as the case may be, were required to pay, but as the amount was not paid, the OA No. 110 of 2004, for recovering of the amount of Rs. 4,93,51,692/- with the interest, and cost is filed before the Debt Recovery Tribunal, and the same is pending. It is the contention of the respondent Bank that the matter is at large pending before the Debt Recovery Tribunal and since the amount is recoverable, as per the transaction of loan with the aforesaid company, keeping in view Clause No. 8 of the deed of guarantee, the Bank is entitled to enforce right of lien over the aforesaid surplus amount of Rs. 16,75,890.75 ps. and, therefore, the direction may not be issued by this Court to refund the amount to the petitioner. It is also submitted that after filing of the petition, respondent Bank has moved appropriate application before the Debt Recovery Tribunal, in the proceedings of O.A. No. 110 of 2004, preferred against the company in liquidation for attachment of the aforesaid amount, but as the present petition is pending, the matter has remained as it is before the Debt Recovery Tribunal. Learned Counsel for the respondent Bank has also submitted that as such if the matter arise for challenging action of the Bank under the Securitisation Act, the petitioner had the remedy of approach
