India Bulls Housing Finance Ltd. vs Raminder Singh Gujral

Ranjit Singh, J

M/s. India Bulls Housing Finance Ltd. has filed this appeal against order passed by DRT-I, Chandigarh on 21.6.2012 vide which S.A. filed by respondent Mr. Raminder Singh Gujral has been allowed and notice issued by the appellant under Section 13(2) of the SARFAESI Act has been held to be bad.

Facts in brief may need a notice to get the hang of the issues agitated before me in this appeal.

The respondent herein had availed loan of Rs. 10 lacs from the appellant institution which was to be repaid in 236 equal monthly instalments. This loan was secured by way of mortgage of property B-VI, 1750-J, Guru Teg Bahadur Nagar near Braham Sabha, Jagadhari, Yamunanagar, Haryana. It is pleaded in the S.A. that at the time of granting loan, the appellant demanded original title deed of the property i.e. Shop No. 2, Vishnu Nagar, Opposite Radha Swami Satsang Bhawan, Jagadhri Workshop, Yamuna Nagar, Haryana. It is alleged that the appellant-Bank had taken physical possession of the said shop on 29.6.2010 by pasting possession notice which prompted the respondent herein to file the S.A. The Tribunal below fond that account was declared NPA on 9.1.2009 whereas letter fixing 336 EMIs in place of 208 EMIs was done on 27.8.2010. This appeared strange to the Tribunal below that the number of EMIs after declaring the account as NPA were increased. Reference is also made to notice dated 11.6.2008. (Annexure A-6) which as per Counsel for the respondent is notice where sum of Rs. 70,517.00 was stated to be overdue. In this, description of the property was also mentioned. As per the appellant description of the property given was recorded wrongly due to inadvertence.

Of Course, these facts are disputed by the Counsel for the respondent, who would say that notice under Section 13(2) was not served upon the respondent and accordingly would justify the impugned order passed by the Tribunal below holding the proceedings initiated against the respondent under the SARFAESI Act to be bad in law.

It is noticed that during the pendency of the appeal before this Tribunal both parties have placed on record certain additional documents. This mode has met with some objections raised by the respective Counsel. Admittedly these additional documents were not produced before the Tribunal below.

I have heard the Counsel at some length. It is not disputed that the respondent had taken this loan. Respondent has, however, raised dispute in regard to repayment of the loan amount. Respondent has claimed to have made certain payments which are in dispute. These details had not been led in evidence before the Tribunal below either to show the payment and so also to show as to what was the loan amount due. The Tribunal below did not have the benefit to examine all these pleas and the documents and has decided the case on the basis of material placed before it. Respondent has objected to the stand of the appellant that the description of the property was mentioned wrongly and some other submissions which were never raised before the Tribunal below. Since the disbursement of loan is admitted so to the facts that certain repayments were made. It would therefore, be appropriate to examine the issue if the loan account can be termed as NPA giving chance to the parties to supplements their pleas and pleadings. It would be appropriate if the both parties are permitted to lead their respective documents and evidence so that all the issues are finally adjudicated. This is to ensure that neither party suffers the consequences of any infirmity on their part to lead relevant evidence or make pleadings and to place relevant documents on record. It would sound proper to me to observe that if the respondent had taken any loan then he is under obligation to repay the same. On the other hand, if he has made certain payment that must be validly accounted for. It would, therefore, be appropriate to remand this case to the Tribunal below to reconsider the entire issues on the basis of evidence and documents placed on record. Further, a proper course is that the parties are permitted to lead evidence and are allowed to make additional pleadings if they so desire, so that the entire issue is finally determined and decided properly in accordance with law.

I, therefore, deem it appropriate to set aside the impugned so as to enable the Tribunal below to decide it afresh on the basis of these additional documents and/ or pleas, if any, raised by the respective parties. This course is being adopted to ensure a fair adjudication so that no party suffers due to any technicality. The Tribunal below would be at liberty to decide the issue afresh whether notice under Section 13(2) of the SARFAESI Act was validity issued or any other issue which may arise ignoring the earlier findings and obviously on the basis of new pleadings and evidence, if any, led before it. Till the issues are decided by the Tribunal below, it is but proper to direct that the appellant-Bank would not to continue with the proceedings initiated under the SARFASEI Act which as on date have been set by the Tribunal below.

With the above observations, the case is remanded back to the Tribunal below. Parties through their Counsel are directed to appear before the Tribunal below on 21.5.2014. Since this issue has earlier been decided by the Tribunal below, it is considered appropriate to observe that this case be decided on priority and is decided as early as possible.