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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MICHAEL ZOTHANKHUMA
Kiran Devi Jain – Appellant
Versus
Indian Bank (Formerly Allahabad Bank) Represented By The Assistant General Manager – Respondent
| Table of Content |
|---|
| 1. petitioners seek release of mortgaged properties (Para 2 , 3 , 4 , 5 , 6 , 7) |
| 2. value of remaining properties relative to cash credit facility (Para 8 , 9 , 10 , 11) |
| 3. respondent argues alternative remedies exist (Para 12 , 13 , 14) |
| 4. observations on property value and accumulated interest (Para 15 , 16 , 17) |
| 5. court prefers civil dispute resolution (Para 18 , 19 , 20) |
| 6. writ petition dismissed; case not suitable for writ court (Para 21 , 22 , 23) |
JUDGMENT :
MICHAEL ZOTHANKHUMA, J.
1. Heard Mr. P. Chowdhury, learned counsel for the petitioners. Also heard Mr. Pfosekho Pfotte, learned counsel for the respondent bank.
2. The petitioners have prayed for a direction to be issued to the respondent bank to release the property of the petitioner no.1 located at Patta No.1387, Dag No.26/1665, Golaghat Road, NH-39, Dimapur, Nagaland measuring 1 Bigha 3 Kathas 14 Lechas (25056 sqft.) with single storeyed RCC building from the mortgage taken as security for the Cash Credit facility provided to the petitioner no.2 by the respondent bank.
3. The further prayer of the petitioners is to direct the respondent bank to keep the property belonging to another guarantor, Sri Nirmal Kumar
The court emphasized that private disputes involving financial institutions and guarantors should be resolved in civil courts when alternative legal remedies are available.
The petitioner is liable for his wife's loan as per the Guarantee Agreement and cannot contest the attachment of his property, which is valid under the law.
Failure to rebut the factual situation presented by the opposing party can lead to the disposal of a petition as infructuous.
The court emphasizes the Bank's duty to consider requests for partial property release following prior court directions.
Upon the sale of mortgaged property in an auction and the confirmation of the sale, the property becomes the exclusive property of the auction purchaser, ceasing to remain as security, and the bank l....
A bank cannot retain a title deed for a different transaction not covered by the mortgage, and a formal agreement is necessary for guarantees.
A bank cannot exercise a general lien to retain title deeds for debts where the mortgagor is not a borrower and has cleared the outstanding loan.
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