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2023 Supreme(Ori) 135
IN THE HIGH COURT OF ORISSA AT CUTTACK
Jaswant Singh, M. S. Sahoo, JJ.
Kanchanbala Sahoo – Appellant
Versus
Canara Bank, Cuttack & Anr. – Respondents
Writ Petition (C) No. 28491 of 2022
Decided On : 19-01-2023
B.P. Tripathy, Advocate, B.N. Udgata, Advocate
The court allowed the petitioner to clear outstanding liabilities in installments to prevent the auction of the mortgaged property.
Headnote:
Guarantor - Auction of Mortgaged Property - Court allows petitioner to clear outstanding liabilities in installments
Fact of the Case:
The guarantor of a term loan challenged the sale notice for the auction of the mortgaged property. The auction was conducted, but the highest bidder did not deposit the required amount. The petitioner offered to pay more than 50% of the outstanding amount upfront and the remaining balance within three months.
Finding of the Court:
The court allowed the petitioner to deposit a sum of Rs.15,00,000 as an interim measure and pay the remaining balance within the next two months, with a deadline of 28.03.2023.
Issues: Challenge to sale notice, non-deposit by highest bidder, petitioner's offer to clear outstanding liabilities
Ratio Decidendi: The court considered the petitioner's willingness to clear the outstanding liabilities and allowed for installment payments to prevent the auction of the mortgaged property.
Final Decision: The writ petition was disposed of with a direction to the petitioner to deposit the remaining balance in equated installments within the next two months but not later than 28.03.2023.
JUDGMENT
1.The guarantor of a term loan availed by her son has inter alia laid challenge to the sale notice dated 28th September, 2022, whereby the auction of the mortgaged property owned by the petitioner was fixed for 31st October, 2022.
Learned counsel for the Bank appearing on advance notice submits that the auction has been successfully conducted for highest bid of Rs.62,60,000/-towards recovery of the outstanding liability of a sum of around of Rs.28,00,000/-. It is further stated that the auction purchaser, however has not deposited the further 15% of the price, after confirmation of the bid towards, the total 25% of the bid money.
2. Upon willingness of the petitioner, to clear her outstanding liabilities, this Court on 02.11.2022 passed the following order.
'1. The guarantor of a term loan availed by her son has inter alia laid challenge to the sale notice dated 28th September, 2022, whereby the auction of the mortgaged property owned by the petitioner was fixed for 31st October, 2022.
Learned counsel for the Bank appearing on advance notice submits that the auction has been successfully conducted for highest bid of Rs.62,60,000/- towards recovery of the outstanding liability of a sum of around of Rs.28,00,000/-. It is further stated that the auction purchaser, however has not deposited the further 15% of the price, after confirmation of the bid towards the total 25% of the bid money.
2. In view of the above, learned counsel for the petitioner to save her mortgaged residential property has offered to pay more than 50% of the outstanding amount as upfront and to pay the remaining balance of the outstanding liabilities within next three months.
3. Issue notice for 19th January, 2023.
4. Mr. B.N. Udgata, learned counsel appears and waives of notice on behalf of the opposite parties-Bank.
5. As an interim measure, subject to the petitioner depositing a sum of Rs.15,00,000/- on or before 10th November, 2022 along with an undertaking to pay the remaining balance within next three months, the sale certificate shall not be issued without the leave of this Court.
Urgent certified copy of this order be granted on proper application.'
3. At the time of hearing today, learned counsel for the Bank submits that the required Rs.15,00,000/- were deposited by the petitioner, and the Bank has already cancelled the confirmation of bid submitted by the highest bidder. He further states that the petitioner has not yet filed his undertaking to clear the outstanding liability of more than Rs.14 lakhs.
4. In response, learned counsel for the petitioner prays for grant of some time to clear the entire outstanding liabilities, to which the counsel for the Bank has no objection.
5. In view of the above, the Writ Petition is disposed of with a direction to the petitioner to deposit the remaining balance, to be intimated by the Bank within 10 days from today, in equated installments within next two months but not latter than 28.03.2023.
