AI Structured Summary
Not yet generated for this judgment
Judgment
The present petition has been filed seeking quashing of sale notice dated 20.07.2018 (Annexure P-8) vide which the residential house of the petitioners has been put to e-auction scheduled to be held on 30.03.2018. Further, prayer has been made for direction to the respondent No.1 and 2 for not auctioning the mortgaged property as the petitioners want to discharge their loan liability under One Time Settlement (OTS).
Petitioners No.1 and 2 are the sons of late Sh. Ramesh Chander Joshi. The District Magistrate, Gurgaon; Dewan Housing Finance Corporation Limited, Mumbai have been arrayed as respondents No.1 and 2. Respondents No.3 to 5 are the performa respondents.
M/s Fashion Republic, a partnership firm availed a housing loan facility from respondent No.2. The loan of Rs.56,87,007/- was availed on 31.05.2014. In order to secure the loan, House No.1366, Sector 17-C, Gurgaon was mortgaged. The tenure of the loan was 15 years and the repayment was to be made in 180 equal monthly installments of Rs.75,751/- each. The repayment of loan was defaulted after June 2016 as there were financial constraints. The father of the petitioners was diagnosed with Cancer and he died on 25.11.2016 and, thereafter, on 21.06.2017, the mother of the petitioners expired.
The respondent No.2 initiated proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Act'). An application under Section 14 was moved for taking over possession of the secured asset. Respondent No.1 passed order dated 03.04.2017 and in pursuance to the order, physical possession of the property was taken over on 31.10.2017.
The secured property was put to auction on 16.01.2018. Being aggrieved of the auction, the petitioners filed CWP No. 612 of 2018. The said petition was disposed of on 15.01.2018. The operational part of the order is quoted below:-
"We have heard learned counsel for the petitioners and gone through the record.
In view of the stand taken before this Court that the petitioners want to discharge their loan liability through amicable settlement under One Time Settlement Policy, the instant writ petition is disposed of with a direction to respondent No.2 to consider the proposal dated 02.01.2018 submitted by the petitioners, sympathetically so as to make an endeavour for amicable settlement of the loan account. Let an appropriate decision be taken within one month from the date of receiving a certified copy of this order. Till such time, auction of the residential house shall not be confirmed."
After the High Court's order, the petitioners approached the respondent No.2 for amicable settlement of the dispute. The respondent No.2 again fixed auction of the secured property for 30.03.2018. Aggrieved of the auction, the present writ petition has been filed.
Grievance raised by learned counsel for the petitioners was that OTS offer made by the petitioners on 02.01.2018 is pending and the residential house has been put to auction.
On 28.03.2018, notice of motion was issued and it was ordered that sale of residential house be not confirmed. On 16.07.2018, learned counsel for respondent No.2 was directed to furnish the detail of outstanding amount on the next date of hearing. On 24.07.2018, learned counsel for the petitioners submitted that the petitioners would in one go discharge the overdue amount and reasonable interest thereon. Further the petitioners, in order to show their bona fides, shall produce the demand draft of Rs.25 lakhs. On 13.08.2018, the demand draft No.641186 amounting to Rs.25 lakhs was produced. The draft was handed over to the learned counsel for respondent No.2 and same was accepted without prejudice to its rights in the writ petition. Learned counsel for respondent No.2 submitted that 30 installments amounting to Rs.22,72,530/- are overdue and an amount of Rs.5,11,319/- is simple interest calculated @ 9% on the aforesaid installments. The total amount towards the petitioner is Rs.27,83,849/-. After taking Rs.25 lakhs deposit by the petitioners, an amount of Rs.2,83,849/- was still outstanding.
Learned counsel for the petitioners submitted that the petitioners will bring a demand draft of Rs.6 lakhs on the next date of hearing for payment of 3 advance installments alongwith overdue amount and the certain expenses incurred in the auction of the house.
On 21.08.2018, a demand draft of Rs.6 lakhs was produced and the same was handed over to learned counsel for the respondent No.2 who accepted the same without prejudice to its rights. Learned counsel for respondent No.2 was directed to furnish the detail of outstanding installments and the agreed rate of interest. Further, he was directed to furnish the detail of total payment made by the petitioners from the date of sanctioning of loan till date.
Today, learned counsel for respondent No.2 stated that the petitioners have deposited approximately Rs.46 lakhs from the date of sanctioning of loan till date whereas the outstanding amount as on date was Rs.48 lakhs approximately. Learned counsel for the petitioners contended that petitioners have deposited approximately Rs.49 lakhs till date but the receipts of payments are in the house, whose physical possession has been taken over by the respondent No.2. In view of the statements made by learned counsel for respondent No.2, learned counsel for the petitioners undertakes to deposit another sum of Rs.2 lakhs on or before 04.09.2018.
The writ petition is disposed of with the direction to respondent No.2 to handover the possession of the secured property to the petitioners immediately on depositing of Rs.2 lakhs by them. Thereafter, within 7 days, the petitioners would approach the respondent No.2 with the proof of payments for reconciliation of accounts. The reconciliation of the accounts would be decided within 15 days thereafter, after affording an opportunity of hearing to the petitioners.