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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. MANIKUMAR, V. BHAVANI SUBBAROYAN, JJ.
P. Sangili - Petitioner
Vs.
The Chief Manager, Union Bank of India, Broadway, Chennai and Ors. - Respondents
W.P. No. 9568 of 2017 and WMP No. 10516 of 2017
Decided On : 19-07-2017
Civil Procedure Code,1908 – Section 60 - Securitization and Reconstruction of Financial Asset and Enforcement of Security Interest Act,2002 – Section 14 and 13(4)(d) - A former DGM (COBA), Telephones, has obtained a loan for purchase of a Flat - Value of flat was fixed - Amount has to be repaid in 96 installments. Each installment was fixed - Borrower has defaulted in making repayments - Hence, Bank has initiated proceedings in O.A.No.89 before Debts Recovery Tribunal-II, Chennai, for recovery - Tribunal has issued an order of attachment in DRC No.129 in O.A.No.89 - Thereafter, petitioner has sent a letter to the Manager, Union Bank of India, stating that he had already paid a sum and that he is prepared to settle loan amount - He has sought for waiver of interest. Further, on receipt of a letter from BSNL Telephones, his employer, petitioner has sent a reply , stating that from beginning, he intended to pay the bank dues. In the said reply addressed to Deputy General Manager (Finance) HQ, O/o. CGM, BSNL Telephones, petitioner has requested employer to ensure, property may be taken over by the bank under issue of "No due certificate" to me." – Held, Court may state without fear of contradiction that provident fund amounts, pensions and other compulsory deposits covered by the provisions Court have referred to, retain their character until they reach hands of employee - Reality of protection is reduced to illusory formality if court accept interpretation sought - Court take a contrary view which means that attachment is possible and lawful only after such amounts are received by employee - If doubts may possibly be entertained on this question, court follow that ruling and overrule the contention - In the light of the undertaking, and in the interest of justice, court are of the view that a person claiming himself to have maintained honesty and integrity while in service, till his retirement, should not have a black mark, by allowing the banker to encash his leave salary, which in the words of Honble Justice a short cut method - For foregoing reasons, writ petition is allowed. Order of first respondent in Reference No. AGM:REC:101: is set aside - In view of undertaking, it is open to first respondent to recover petitioners property as per the order in DRC No. 129 in O.A. No. 89 on file of Debts Recovery Tribunal-II, Chennai - Consequently, connected writ miscellaneous petition is closed.
S. MANIKUMAR, J.
A former DGM (COBA), BSNL Chennai Telephones, Chennai, has obtained a loan of Rs.39.50 Lakhs on 12.03.2009 for purchase of a Flat. Value of the flat was fixed as Rs.44 Lakhs. Amount has to be repaid in 96 installments. Each installment was fixed at Rs.61,000/-. The borrower has defaulted in making repayments. Hence, the Bank has initiated proceedings in O.A.No.89 of 2011, before the Debts Recovery Tribunal-II, Chennai, for recovery of Rs.48,42,016.07p. The Tribunal has issued an order of attachment on 02.02.2015 in DRC No.129 of 2012 in O.A.No.89 of 2011. Thereafter, petitioner has sent a letter dated 01.02.2016, to the Manager, Union Bank of India, Chennai, stating that he had already paid a sum of Rs.10 Lakhs and that he is prepared to settle the loan amount. He has sought for waiver of interest.
2. Further, on receipt of a letter dated 08.03.2016 from BSNL-Chennai Telephones, his employer, the petitioner has sent a reply dated 21.03.2016, stating that from the beginning, he intended to pay the bank dues. In the said reply dated 21.03.2016 addressed to the Deputy General Manager (Finance) HQ, O/o. CGM, BSNL Chennai Telephones, Chennai, the petitioner has requested the employer to ensure the following:
"1. The EMI period be enhanced upto the age of 70 years at such a rate divided by the remaining dues after meet out by at 2 & 3 below.
2. Effecting salary recovery @ Rs.45,000/- PM till my retirement.
3. Utilizing my entire retirement benefit for repayment.
4. Waiver of unnecessary interest plus penal interest for the period from July 2010 to March 2016
Or
5. The property may be taken over by the bank under issue of "No due certificate" to me."
3. Subsequently, the bank issued a notice on 13.11.2016 under Section 13(4) Clause (D) of the SARFAESI Act, 2002 to the Deputy General Manager (CA/CSC), BSNL Limited, Chennai Telephone, Chennai, requesting the latter to pay a sum of Rs.68,05,121/- payable by the employer to the borrower, Mr. Sangli, the writ petitioner herein.
4. Acting on the borrower's letter dated 11.01.2017 and a further letter dated 09.01.2017 of BSNL, Chennai Telephones, Chennai, Deputy General Manager (CA/CSC), BSNL Limited, Chennai Telephones, Chennai, addressed a letter dated 15.02.2017 to the Assistant General Manager, Union Bank of India, Chennai Main Branch, Chennai stating that repayment of loan of Rs.45,000/- per month from December 2016, has been acknowledged by the bank. The employer has sought for details of the present status of the case from the bank. Union Bank of India vide letter dated 28.02.2017 addressed to the Deputy General Manager (CA/CSC), BSNL Limited, Chennai Telephones, Chennai, has stated that there was a overdue of Rs.67,45,645/- and as an employer, BSNL has to remit the dues, with the terminal benefits available, otherwise, the bank would be constrained to take appropriate action holding the employer, as liable for violating Section 13(4)(d) of the SARFAESI Act, 2002. The bank has requested BSNL to intimate in advance the terminal benefits of the writ petitioner to appropriate bank's dues and to initiate proceedings for recovery of the balance amount.
5. Letter dated 28.02.2017, issued by Union Bank of India, Chennai, sent to the Deputy General Manager (CA/CSC), BSNL Limited, Chennai Telephone, Chennai, and furnished to the writ petitioner is assailed in this writ petition, on the grounds that bank has no right to seek for attachment of the retiral benefits including leave salary and supporting the prayer sought for, reliance has been made on the decision of a Hon'ble Division Bench of this Court in Sundaram BNP Paribas Home Finance Limited Vs. Mir Ali and another reported in 2012 (2) CTC 209.
6. The Divisional Engineer (Legal), BSNL, Chennai Telephones, in his counter affidavit has stated that employer has not acquired any secured assets from the bank, as specified under Section 13(4) of the SARFAESI Act and therefore, BSNL is not liable to pay any money to the bank. BSNL ha
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