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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
MANISHA RAHUL BRAHMBHATT - Appellant
Versus
BANK OF BARODA - Respondent
SPECIAL CIVIL APPLICATION NO. 7589 of 2021
Decided On : 14-10-2021
Constitution of India,1950 – Article 226 - Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Section 13(2) - Recovery of outstanding dues - Mortgage deed - Petitioner was in need of financial assistance and respondent advanced a term loan - Petitioner created a mortgage by way of security for term loan advanced by respondent-Bank with respect to piece and parcel of immovable property - Mortgage deed was registered - As petitioner could not re-pay installments regularly, the account of petitioner was classified as non-performing asset by respondent-Bank - Respondent-Bank thereafter issued a notice under section 13(2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for recovery of the outstanding dues amounting - Whether such liabilities by actual or contingent primary or Collateral and several or joint.
Finding of the Court:
In view of provisions of CGTMSE Scheme the respondent-Bank is covered for any default which may be made by petitioner with regard to financial assistance advanced by respondent-bank under PMMY Scheme - In view of respondent-bank has committed an error by withholding original documents of petitioner in respect of term loan which is fully paid by petitioner - Respondent-bank could not have withheld original documents of mortgage property in question once petitioner has repaid the loan as financial assistance advanced by respondent-bank under PMMY Scheme is advanced without any collateral security.
Result: Petition allowed
JUDGMENT :
1. Heard learned advocate Mr. Hitendra Rajput for the petitioner and learned advocate Mr. Rituraj Meena for the respondent-Bank.
2. Rule returnable forthwith. Learned advocate Mr. Meena waives service of notice of rule on behalf of the respondent-Bank.
3. Having regard to the controversy in a narrow compass and with the consent of the learned advocates of the respective parties, the matter is taken-up for hearing today.
4. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
(B) YOUR LORDSHIP may allow this writ petition by issuing the writ of Certiorari and/or any other appropriate writ/direction or order and direct the respondent bank to execute the release deed for the property being ALL THAT PIECE AND PARCEL OF THE IMMOVABLE PROPERTY BEING FLAT NO. 605, BLOCK -D, ADM. 88.63 SQ.MTRS. SURVEY NO. 884/2,ADM.5281 SQ. MTRS. LYING IN THE SCHEME KNOWN AS “RADHIKA VIHAR” SITUATED AND LOCATION IN THE SIM OF VILLAGE NARODA, TALUKA ASARAWA, DISTRICT AHMEDABAD.
(C) Pending Admission, Hearing and Final Disposal of this petition be pleased to direct the respondents to maintain status quo qua Residential property bearing ALL THAT PIECE AND PARCEL OF THE IMMOVABLE PROPERTY BEING FLAT NO. 605, BLOCK —D, ADM. 88.63 SQ. MTRS. SURVEY NO. 884/2, ADM. 5281 SQ. MTRS. LYING IN THE SCHEME KNOWN AS “RADHIKA VIHAR” SITUATED AND LOCATION IN THE SIM OF VILLAGE NARODA, TALUKA ASARAWA, DISTRICT AHMEDABAD which is in physical possession of the Petitioner.
(D) Ex-parte Ad—interim relief in terms of Para 9(C).
(E) Costs of this petition are awarded.
(F) Any other relief, order or direction which may be just, fit, proper, and equitable in the facts and circumstances of the Petition.”
5. Brief facts of the case are that the petitioner was in need of financial assistance and therefore, respondent advanced a term loan of Rs. 9,80,000/-. The petitioner created a mortgage by way of security for the term loan advanced by the respondent-Bank with respect to the piece and parcel of the immovable property being Flat No. 605 Block No. D, admeasuring 88.66 sq.mtrs situated at Survey No. 884/2 in the Scheme known Radhika Vihar, Village-Naroda, Taluka-Asarwa, Dist. Ahemdabad.
6. The mortgage deed was registered at Serial No. 11281 on 18.07.2017.
7. As the petitioner could not re-pay the installments regularly, the account of the petitioner was classified as non-performing asset by the respondent-Bank on 12.12.2018. The respondent-Bank thereafter issued a notice under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [‘Sarfaesai Act’ for short] on 11.01.2019 and 15.03.2019 for the recovery of the outstanding dues amounting to Rs. 9,95,683.22/-. The respondent-Bank has taken a symbolic possession of the property in question and thereafter preferred an application under section 14 of the Sarfaesai Act before the Chief Metropolitan Magistrate, Ahmedabad who, by order dated 22.08.2019, disposed of the application by appointing Subordinate Officer for taking physical possession of the property in question.
8. The petitioner deposited Rs. 3,03,5830/- from 30.06.2017 till 08.07.2019 as per the statement issued by the respondent-Bank which is at page 42 of the petition and accordingly, there was an outstanding of Rs. 6,98,200/- as on 21.08.2019.
9. It appears that the petitioner has thereafter, paid Rs. 7 lacs on 06.10.2019 when the Court Commissioner appointed by the Chief Metropolitan Magistrate issued the notice for taking the possession of the property in question. The petitioner also paid further Rs. 50,000/- as demanded
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