G. Sireesha vs State Bank Of India & Ors.

THE APPELLATE TRIBUNAL :

Instant appeal has been preferred against a judgment and order dated 14.02.2020 passed by Learned DRT-`1 Hyderabad in S.A. No. 20 of 2019 (Smt. G. Sireesha versus State Bank of India and others) along with I.A. No. 3361 of 2019 whereby Learned DRT dismissed the S.A.

As per the pleadings of the parties, the Appellant herein admittedly is a guarantor of a loan account sanctioned by the Respondent Bank in favour of the borrower M/s Delta De Aqua materials Pvt. Ltd. Loan account was classified as NPA on 01.03.2016. Demand Notice under Section 13(2) of the SARFAESI Act, 2002 was issued on 07.10.2016 for an amount of Rs.2,13,27,402/-. E-auction Sale Notice was also issued with a reserve price of Rs.42,79 lacs as far as the secured assets flat is concerned. Some proposal for O.T.S. was moved wherein certain amount was to be deposited. Accordingly, an amount of Rs. 45.00 lacs was deposited on different dates. But the documents of Title of flat No. 108 were not returned. SARFAESI Action was initiated by the Bank. Subsequently, on 18.08.2018, Bank offered to close all loans of the Company by paying Rs.1,24,75,428/- by appropriating the sum of Rs. 42.50 lacs. E-auction Sale 31.01.2019 for e-auction. In the notification dated 29.12.2018 of the Bank, dues were Rs.200.00 lacs. The reserve price of flat No. 108 is of Rs. 34.00 lacs while the Appellant has already paid Rs.42.50 lacs in the month of May, 2017. When an S.A. was filed challenging the e-auction Sale Notice dated 29.12.2018, an I.A. No. 179 of 2019 was filed pending S.A. for staying the further proceedings wherein vide order dated 28.01.2019 DRT directed that the Bank may proceed with the e-auction. But not to confirm the sale subject to the condition that, Applicant shall deposit a sum of Rs 20.00 lacs in two instalments directly with the Bank, failing which sale can be confirmed. In the said e-auction sale dated 31.01.2019, one Smt. Rama Devi Uppala stood as the highest bidder and paid entire sale consideration of Rs.43.50 lacs. Accordingly, the conditional order of the stay became absolute. However, in the meantime, the auction got cancelled and the sale consideration was returned to the highest bidder.

During pendency of the S.A. Bank offered a scheme for One Time Settlement (SBI OTS 2019) vide letter dated 23.09.2019 to the borrower, which was availed by the borrower and entire O.T.S. amount was paid and the original title deeds were returned.

Another I.A. No. 3361 of 2019 was filed by the Appellant for direction to the Bank to refund the amount of Rs. 20.00 lacs deposited by the Appellant in compliance of the order of DRT dated 28.01.2019 which was dismissed by the Learned DRT by the impugned order.

As far as reply of the Bank is concerned, facts regarding availing the loan facility and the status of the Appellant as guarantor are not in dispute. Further, initiation of the SARFAESI action after classifying the account as NPA is also not in dispute. It is also not disputed that the amount of Rs. 20.00 lacs was deposited by the Appellants which was duly adjusted in the loan account. It is also not in dispute that the O.T.S. proposal in SBI OTS 2019 was accepted by the Appellant and the account was settled. Original deeds were also returned to the Appellants. However, as far as the issue of refund of Rs.20.00 lacs is concerned, it is stated that the amount was deposited under the directions of the DRT and was given a due credit in the Statement of Account and was adjusted in the loan account and the Appellant is not entitled for refund of the same.

Learned DRT recorded a finding that the amount deposited by the Appellant was duly adjusted in the loan account and the account was settled under the O.T.S. scheme. Accordingly, Appellant is not entitled for refund of the amount.

Learned Counsel for the Appellant would submit that the amount of Rs. 20.00 lacs was deposited by the Appellant under the orders of the DRT which was not to be adjusted by the Bank in the loan account. Rather, since the amount was deposited under the orders of the DRT, it should have been kept in a ‘No Lien Account’. It is further submitted that no communication was ever made by the Bank to the Appellant the loan account. At no point of time Appellant ever gave any consent or agreed for adjustment of the amount of Rs.20.00 lacs in the loan account. Accordingly, the findings recorded by the Learned DRT on this count are erroneous and are liable to be set aside.

Per contra, Learned Counsel for the Respondent would submit that in the Statement of Account the amount was duly adjusted in the loan account. Even in the letter dated 19.11.2019, Appellant herself has stated that she has deposited the amount of Rs. 20.00 lacs along with other amounts for adjustment in the loan account. O.T.S. letter was issued after adjustment. Appellant herself has endorsed, while receiving the original documents that she has no complaints against the Bank which means that on receiving the original documents, Appellant was having no grudge or complaint against the Bank. Hence, now the Appellant is estopped from raising the issue once again.

Issue involved in this Appeal is very short. There is no dispute about the jural relationship between the parties. There were disputes between the parties regarding loan account which were duly litigated by them before the DRT. An interim order was passed by the Learned DRT on 28.01.2019. The relevant portion of the same reads as under:

It is also not in dispute that in compliance of the same, amount of Rs. 20.00 lacs was deposited by the Appellant in two instalments. Subsequent thereto, O.T.S. proposal was floated under SBI O.T.S. 2019. In response thereto, a letter dated 19.11.2019 was sent by the Appellant to the Bank wherein it is admitted by the Appellant that:

In the O.T.S. proposal dated 23.09.2019 issued by the Bank, the O.T.S. amount payable under the O.T.S. scheme was shown as Rs. 24,96,411.00. The amount of Rs. 20.00 lacs in two instalments of Rs. 10 lacs each was deposited on 02.02.2019 and 13.02.2019 when the O.T.S. proposal dated 23.09.2019 under SBI OTS 2019 was given to the Appellant and the same was duly accepted by the Appellant vide letter dated 19.11.2019 wherein he gave the details of the amount deposited by him as noted earlier and also only prayed for release of her property with a further acknowledgment that if any balance is remaining under the O.T.S. amount, she is ready to pay the same along with interest, if any, and she will withdraw the S.A. filed by her. This acceptance of the O.T.S. proposal was unequivocal and was acted upon by the Bank. Accordingly, loan account was settled and the security documents were also released in favour of the Appellant so much so that when the Appellant received the documents on 30^th December, 2019, she made the following endorsement “received original house property documents. I have no complaint/ claims on this regard.” This is also an admission by the Appellant of the fact that the Appellant received the documents after closure of the account and both the parties are satisfied with the same and the Appellant has no complaints or grievances against the Bank regarding the loan account. If Appellant was having any complaint against the Bank regarding non adjustment of Rs. 20.00 lacs in the loan account, then Appellant herself should have raised the issue at the time of receiving the documents. Now Appellant is estopped from raising any such pleas at subsequent stage.

As per the interim order passed by the Learned DRT, direction was issued to deposit the amount of Rs. 20.00 lacs directly with the Bank. There is no direction of the DRT to keep the amount in a ‘No Lien Account’ or ‘Suspense Account’ meaning thereby the DRT directed the Appellant to make the deposit in the loan account which was done and the amount was duly deposited and adjusted in the loan account.

Learned Counsel for the Appellants have placed reliance upon following judgments before the Learned DRT which do not relate to the facts of the present case.

All the judgments are relating to undue enrichment of the Bank or regarding adjustment of any amount deposited under Section 18 of the SARFAESI Act, 2002. But in the present case, facts and circumstances are different. Amount of Rs.20.00 lakhs was deposited by the Appellant under orders of the Learned DRT in the pending S.A. which was duly deposited in the loan account and was duly adjusted. Subsequent thereto, such account was settled between the parties under the O.T.S. scheme. Security documents were also returned by the Bank to the Appellant. Hence, the judgment relied upon by the Appellant’s Counsel are not applicable to the facts of the present case.

On the basis of discussions made above, we are of the considered view that the Learned DRT has rightly arrived at its finding. No interference is called for in the impugned judgment. Appeal is liable to be dismissed.

Appeal No. 116 of 2022 arising out of S.A. No. 20 of 2019 (Smt. G. Sireesha versus State Bank of India and others) is dismissed. Impugned order dated 14^th February, 2020 passed by Learned DRT-1 Hyderabad in S.A. No. 20 of 2019 is confirmed.