Barna Ghosh vs Syndicate Bank & Ors

This writ application has been filed by the petitioner challenging the inaction on the part of the bank authorities in providing the document of loan agreement although there is a Circular issued by the Chief General Manager‐in‐Charge to all scheduled Commercial Banks/All India Financial Institutions (Excluding RRBs) that a copy of the loan agreement should be given to all the borrowers on their request.

The other contention of the petitioner is that without furnishing the copy of the document of loan agreement, a proceedings under Section 13(2) of the SARFAESI Act, 2002 (hereinafter referred to as the said Act) has been initiated against the petitioner and a notice under the said Act has already been issued to her.

It appears from the averments that the petitioner had made a prayer to the Bank to supply her a copy of the document of loan agreement. However, no such application has been annexed to the writ application to substantiate such claim. It is also seen that the petitioner has defaulted in making payment of outstanding instalments and as such, notices have been issued to the petitioner by the bank to pay the said instalments. There is nothing on record to show that the petitioner has been paying the outstanding instalments.

However, there is a representation dated April 30, 2018 made by the petitioner to the bank pursuant to the notice issued to the petitioner under Section 13(2) of the said Act, wherein the petitioner has prayed for rephasement of the above loan account so that the same could be paid up by her.

On the query of the Court as to why this writ application is maintainable before this Court under the writ jurisdiction, in view of existence of an alternative legal remedy under the said Act, the contention of the learned Advocate for the petitioner is that the petitioner's request, as a borrower for a copy of the document of loan agreement, has not been honoured by the bank and as such, for such inaction, this writ application has been filed by the petitioner.

He further contends that although the petitioner is a defaulter, she would like to avail of an opportunity to settle the matter out of court with the bank.

On such prayer, without interfering with the matter of claim of the bank, liberty is granted to the petitioner to make a fresh application before the concerned authority of the bank within a period of 10(ten) days from date for supply of a copy of the document of loan agreement and if such application is made by the petitioner, the same shall be supplied to her by the concerned authority of the bank, if permitted by law, as per the Circular dated August 22, 2007 (Annexure P‐1 to this writ application).

If the document cannot be supplied the authority shall pass a reasoned order assigning reasons for such rejection.

Without prejudice to the actions that may be taken by the bank against the petitioner under the said Act before the appropriate forum, the Bank is given liberty to make a full and final settlement of the outstanding loan amount if the petitioner approaches the Bank. This order shall not be construed as a stay of any other proceeding that may be initiated by the Bank for non‐payment of the dues.

With the aforesaid directions, this writ application stands disposed of.

There will, however, be no order as to costs.

The learned Advocate‐on‐Record of the petitioner is directed to serve a copy of this writ application along with the server copy of this order upon the concerned authority of the bank as also upon the other respondents within a week from date.

Let urgent Photostat certified copy of this order, if applied for, be given to the parties at an early date.