Point of Law : IT IS THE SOLEMN DUTY OF THE COURT TO APPLY THE CORRECT LAW WITHOUT WAITING FOR AN OBJECTION TO BE RAISED BY A PARTY, ESPECIALLY WHEN THE LAW STANDS WELL SETTLED.

ORDER :

Heard learned advocate Mr.Kirtan H. Mistry for learned advocate Mr.C.B.Upadhyaya for the petitioners/applicants and learned advocate Mr.C.Z.Sankhla for the respondent No.1.

Order in Special Civil Application :

1. It was submitted by learned advocate Mr.Mistry that learned advocate Mr.C.B.Upadhyaya is in charge of the matter and he is not available to argue the matter and learned advocate Mr.Mistry refused to assist the Court and submitted that it is only learned advocate Mr.Upadhyaya who can assist the Court in the matter and therefore, this Court is left with no alternative but to proceed the matter on merits.

2. The facts of the case are peculiar which would be advent from the order passed by this Court on 15.10.2019 which reads as under :

“1. In this petition under Article 226 of the Constitution of India, the main prayer of the petitioner reads as under:

“(B) To direct the respondent No.1 herein to grant permission to the petitioners to sell off the mortgaged properties through 100% cheque money, subject to the condition that the total amount received out of the sale proceeds of such properties shall be directed deposited in the bank and may further be pleased to quash and set aside the securitization proceedings initiated by the respondents including Section 13(2), 3(4) and 14 proceedings.”

2. The facts are as under.

3. Pursuant to availing of a credit facility with the Union Bank of India and pursuant to a proceedings under the SARFAESI Act, 2002, the total outstanding that the petitioner was required to pay an amount of Rs.56,40,16,564.97. This amount is apparent from the notice of the bank dated 09.04.2018 to take possession of the assets of the petitioner.

4. It appears that on 26.07.2019, the bank held a meeting with the petitioners wherein it was mutually agreed between the petitioners and the officials of the bank that the petitioners pay Rs.38.40 crores within two years. The minutes of the meeting which is annexed at page 42 of the petition, indicate that pursuant to the drawing of such minutes by the officials of the bank, the petitioners were called for a discussion for payment schedule and upfront money. On 20.08.2019, a request was made by the petitioner that since amount of Rs.2.30 crores was lying in the bank as fixed deposit, the upfront payment of 10% should be deducted/adjusted from the fixed deposits and SUD/KBC policies.

5. The Bank by a letter of 29.08.2019 refused to consider the request of an OTS on the ground that an upfront 10% minimum amount has not been deposited by the borrower.

6. The petitioner immediately addressed a letter on 07.09.2019 offering properties for sale and also impressing upon the respondent-bank that they already had an amount of Rs.2.3 crores which could have been appropriated towards the 10% of the OTS amount.

7. A letter dated 04.10.2019 together with the letter of prospective buyer Savina Developer and the certificate of the Union Bank at page 53 would indicate that in addition to the prospective buyer's deposit/cheque, an amount of Rs.3,80,11,000/- is lying with the Union Bank of India the respondent.

8. Prima-facie, therefore what appears to be evident is that the communication of bank dated 29.08.2019 rejecting the proposal of the OTS on account of the petitioner not depositing the 10% of the amount, needs reconsideration in view of Rs.2.3 crores already lying as Fixed Deposit which the petitioner has requested to be appropriated towards 10% amount plus the amount of Rs.3.80 crores (approximately) deposited by the prospective buyer.

9. Today, Mr.Kavina learned Senior Counsel states that the proceedings under Section 14 of the SARFAESI Act, 2002, are already in progress and the hearing is scheduled for today.

10. Issue NOTICE to the respondents, returnable on 11.11.2019. In the meantime, the proceedings before the respondent no.2 are not stayed. However, no final order be passed thereon till the returnable date. The petitioner shall participate in the proceedings before the resp