Harjeet Singh vs Ramgarhia Co-Operative Bank Ltd.

P.K. Bhasin, J

The appellant along with his brother Jatinder Pal Singh admittedly were defaulters in re-payment of the loan which they took from the respondent Bank in the year 2012 on installment basis. Since they defaulted in re-payment as per the re-payment schedule the Bank declared their account as a Non Performing Asset and then served a demand notice dated 21.3.2013 under Section 13(2) of SARFAESI Act calling upon them to pay the outstanding dues of Rs. 21,40,578/- with interest at the contractual rate. The appellant and his brother failed to pay the demanded amount within the statutory period of sixty days. They did not even respond to that notice. Consequently the Bank took recourse to Section 14 of SARFAESI Act in order to get possession of their house which had equitably mortgaged with the Bank as a security for the re-payment of the loan amount. The Bank got the possession order from Additional Chief Metropolitan Magistrate, Delhi who also appointed Advocate Receivers to take possession of the mortgaged property and to deliver the same to the Bank. On receipt of intimation from the Receiver that he will be coming to take possession of their house the appellant approached the Debts Recovery Tribunal-I, Delhi (DRT) with a Securitisation Application (S.A.) under Section 17(1) of SARFAESI Act which was registered as S.A. No. 144/2015. In that S.A. the appellant challenged the measures taken by the Bank under the provisions of SARFAESI Act as being illegal. Since there was an imminent threat of his dispossession from his mortgaged house he also prayed for an interim relief. The DRT disposed of the prayer for interim relief claimed in I.A. No. 1875/2017 vide its impugned order dated 27.10.2017.

That order of the DRT is re-produced below:

"I.A. No. 1875/2019

This I.A. has been filed on behalf of the applicant praying therein to restrain the Court Receiver Mr. Vaibhav Gupta, Advocate from taking physical possession of the property in question i.e. WZ-33 A/1, Plot No. 108, Khasra No. 13/24, Village-Keshopur, Guru Nanak Nagar, New Delhi-18, on 28.10.2017 at 10 a.m., wherein the applicant and his family resides and this is the only house of the applicant.

Learned Counsel for applicant submits that applicant herein has already deposited a sum of Rs. 17.0 lacs and odd amount from the date of NPA i.e. 31.12.2012 till date and he may be allowed three months time to deposit the remaining outstanding amount with the respondent Bank and reasonable rate of interest may be adjudicated by this Tribunal.

Learned Counsel for respondent Bank submits that a sum of Rs. 25.0 lacs (approx...) is outstanding against the applicant herein and he may be directed to deposit the same immediately with the Bank.

Heard learned Counsel for the parties and perused the record. Record reveals that present SA was filed in the year 2014 and vide order dated 20.3.2014, applicant was granted interim relief subject to deposit of Rs. 4.0 lacs. Thereafter again on the request of the applicant on 2.3.2015, applicant was directed to deposit the entire overdue amount within three months and approach the Bank for regularization of account but he did not do so. Again, vide order dated 18.12.2015, applicant herein was directed to deposit a sum of Rs. 4.0 lacs, as detailed and said order, and respondent Bank/Receiver was restrained from taking possession of the property in question. Thereafter one more I.A. No. 1783/2016 was also filed on behalf of applicant in which one of the prayer was to waive off the excessive rate of interest, cost and charges etc. and to allow the applicant to deposit the remaining adjudicated outstanding amount on or before 31.3.2017 with the Bank, however, said I.A. was also dismissed vide order dated 6.4.2017.

In the light of above discussion, it is evident that applicant herein was allowed sufficient time to deposit the entire overdue amount as well as to regularize the account but he did not do so. Act of applicant is highly deplorable. Whenever respondent Bank proceed further for taking possession of the property in question, the applicant herein approaches this Tribunal and assures to deposit the amount and this Tribunal on the assurance of the applicant and in the interest of justice, allowed time to deposit the dues of the Bank, however, he failed to do so.

During the course of arguments, it was informed that the property in question consists of Ground Floor and First Floor.

Though applicant herein is not entitled to seek any interim relief, however, in the interest of justice, it is directed that let applicant herein handover possession of one of the Floor to the respondent Bank tomorrow itself i.e. on 28.10.2017. It is further directed that applicant shall also deposit the entire outstanding amount with the respondent Bank within one month from today. In case applicant fail to deposit the amount, as directed above, respondent Bank shall be at liberty to take possession of other Floor of property in question with the help of same Court Receiver, without further directions of this Tribunal.

With these directions, this IA stands disposed of accordingly. SA

Case be listed on the date already fixed i.e. on 23.11.2017 for final arguments.

Dasti

Sd/-

Presiding Officer

DRT-I, Delhi"

The appellant, however, did not avail of the indulgence shown to him by the learned DRT by granting him time to clear the outstanding dues and did not clear the dues of the Bank as per the orders of the DRT. He again took a chance by mentioning the matter before another Presiding Officer since the Presiding Officer of DRT where the S.A. was pending was on leave and made a fresh prayer seeking for more indulgence. The new Link Presiding Officer, however, vide order dated 28.11.2017 extended the time for making payment of the money due to the Bank but did not accept the request of the appellant for giving him some relief in the matter of interest and accordingly directed him to pay the dues with contractual rate of interest. The appellant, who had earlier not filed any appeal against the earlier orders passed by the DRT, reference to which was made in the order dated 27.10.2017, this time when his request for some rebate in rate of interest was not accepted the present appeal. The order dated 28.11.2017 reads as under:

"Present: Mr. Shailender Ojha, Counsel for the applicant

Mr. D.K. Sachhar, Counsel for the respondent Bank.

The present matter is taken up on urgent mentioning by learned Counsel for the applicant.

Heard both sides and for making the payment of balance amount as per contractual rate of interest the applicant is hereby granted 15 days time. In default, the respondent Bank is at liberty to take the physical possession of remaining floors of the property in question.

List this case on 19.12.2017."

Learned Counsel for the appellant argued that no possession noticed had been served upon by the Bank before approaching the CMM with an application under Section 14 of SARFAESI Act. Learned Counsel for the appellant also submitted that sale of the first floor which the appellant had surrendered would serve the purpose since the dues of the Bank will get liquidated from sale of one floor itself. In support of this submission he cited on judgment of the Hon'ble Supreme Court in the case of Ram Kishun v. State of U.P., VII (2012) SLT 242 : IV (2012) BC 527 (SC) : (2012) 11 SCC 511.

On the other hand, learned Counsel for the Bank submitted that the appellant has all along been interested in gaining time from the DRT and now from this Tribunal and avoiding to clear the Bank's dues without showing any infirmity in any of the steps taken by the Bank under the SARFAESI Act and, therefore, this appeal is meritless and should be dismissed. Counsel further submitted that the pleas being taken by him now before this Tribunal have not been taken before the DRT and if had been taken there the Bank would have appropriately responded to those pleas. In my view this appeal has no merit. It was rightly submitted by the learned Counsel for the Bank that the appellant has simply been making efforts to delay the payment of public money to the Bank and his only aim was to get some rebate in the rate of interest and that too an interim stage of the proceedings. For examining the prayer of a defaulting borrower for some relief in the matter of interest there has first to be an adjudication of the borrower's liability and then the question of rate of interest to be fixed will arise. In the present case, the appellant has been granted opportunities by the DRT to clear the dues of the Bank but till date he has not done and has been pressing for reduction in rate of interest. The grounds of challenge raised before this Tribunal by the Counsel for the appellant, noticed already, are questions of fact and ought to have been raised at first instance before the DRT and not in appeal when the S.A. is still pending decision before the DRT.

This appeal is accordingly dismissed.