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Judgment
N. Kotiswar Singh, J
Heard Mr.N.Ibotombi Singh, learned senior counsel assisted by Mr.Boboy Potsangbam, learned counsel for the petitioner. Heard also Mr. N.Jotendro, learned senior counsel assisted by Ms. M.Punam, learned counsel for the private respondents No.3 and 4 and Mr. Th.Sushil, learned counsel for the Central Bank of India.
[2] In this petition, the petitioner has challenged the order dated 22.02.2018 cancelling the One Time Settlement (OTS) proposal in respect of the petitioner and informing the petitioner that the mortgaged property is sold off by auction. The said impugned order reads as follows:-
"Ref No. CBI/IMP/2017-18/00177 22nd February 2018
To,
Shri Mayengbam Tej Singh,
Prop of M/S MS & SONS
Singjamei Mayenbam Leikai,
Dist: Imphal West, Manipur- 795008
Subject: Cancellation of OTS proposal in NPA A/C M/s. M.S & Sons.
Ref: Your e-mail dated 21.02.2018
With reference to the above matter and you e-mail addressed to our Regional Manager, we wish to remind you that you have deliberately avoided repayment of the outstanding dues of the Bank for more than a year and despite our regular requests and intimation to you to repay the dues, you have avoided and did not pay any heed to our requests.
Regardless of your deliberate and adamant attitude towards non-payment of the dues, we offered you OTS proposal for settlement of the claim. But you wilfully neglected and did not give your consent or acceptance to our offer at any time.
We have already informed you vide our letter no. IMP/SARFAESI/2017-18/1449 dated 25/01/18 that your mortgaged property has been put for e- auction on 16.02.2018, but you have shown your aggression towards action of the Bank under SARFAESI Act. Not to forget, that you broke open the locks and keys two times (11.01.2017 and 20.06.2017), when the Bank took physical possession of the mortgaged property, which clearly shows your unwillingness and irrational attitude regarding payment of outstanding dues and the way you abuse the process of law.
As you did not consent to our OTS proposal, we again took the mortgaged property under vacant possession with the help of district administration on 16.02.2018, we have clearly intimated you our intention towards lapse of the OTS proposal and to recover the public money by auction sale of the mortgaged property.
You are well aware that the mortgaged property has been auction sold for the reserve price mentioned in the notice, as such, no question arises as to consideration of that, OTS proposal, which already stands lapsed due to non-acceptance of the offer by you. As third party interest has been created in the mortgaged property and we have confirmed the Sale in favour of the auction purchaser, you have lost any of your right fors redemption of the mortgaged property.
Under such circumstances, your request cannot be accepted.
Sd/-
(Chief Manager)
Central Bank of India,
Imphal Branch"
[3] The grievance of the petitioner is that the petitioner was given an OTS proposal by the Bank initially vide letter dated 25.01.2018 by which the petitioner was given an opportunity to clear his debt by 31.3.2018 by accepting the aforesaid OTS. The said letter containing the offer of the Bank is annexed as Annexure-A/1 to the writ petition, which reads as follows:-
"Central Bank of India Annexure-(III)
For RLP upto Rs. 10 Lakh to Rs. 100 Lakhs
Date: 25/01/2018
"Without Prejudice"
To,
MS AND SONS (Prop:MR. TEJ SINGH)
SINGJAMEI PARKING
SINGJAMEI MAYENG LEIKAI
Reg: Your NPA loan account No. 3212974165 with our Branch, having Debit Balance Rs. 73 Lakhs with Interest charged up to 25.01.2018 only
Dear Sir/ Madam,
We are pleased to inform you that out bank has come out with a special onetime settlement scheme which is valid up to 31.03.2018. Your account is also eligible under this scheme and after substantial concession, the minimum amount required to be deposited by you is Rs. 41,25,000/- as full and final settlement of your above mentioned NPA account.
You are advised to visit our Branch and settle your account by depositing the above mentioned amount in one stroke/single instalment.
Please note that the above offer is valid only up to 31.03.2018 under the above mentioned special concession scheme, as such avail this opportunity to get rid of your debt.
Failing to avail this offer within stipulated time i.e. latest by 31.03.2018, this offer will stand automatically lapsed and Bank will have to right to recovery full dues with up to date interest.
With regards.
Sd/-
Branch Manager"
Name of Branch: Imphal
Contact No: 8794741680"
[4] Pursuant to the offer dated 25.1.2018, the petitioner informed the Bank authorities that he would accept the said OTS proposal vide his e-mail letter dated 21.02.2018. There is no dispute about the receipt of the said acceptance of the proposal by the petitioner, by the bank authorities.
According to the petitioner, even though the petitioner had accepted the said OTS proposal offered by the Bank which was duly intimated to the Bank, to his shock and surprise, he found that the Bank authorities resiled from their earlier position by issuing the impugned order dated 22.02.2018 stating that since the petitioner did not accept the revised OTS which was effective until 10.02.2018, the offer automatically lapsed and Bank had the right to recovery with full dues with up to date interest which the Bank invoked and the authorities took the decision to e-auction the mortgaged property of the petitioner.
[5] It is the case of the petitioner that the petitioner never received any intimation to the changed/revised OTS proposal by which the date line was shortened to 10.2.2018. Accordingly, it has been submitted that the e-auction which has been ordered, pursuant to the impugned order is illegal.
[6] In response, the Bank authorities has submitted that the Bank had informed the petitioner vide letter dated 29.01.2018 stating that the last date of offer appearing as 31.3.2018 in their letter dated 25.01.2018 was revised to 10.2.2018 and as such, the offer for OTS was valid only upto 10.02.2018 and if the said offer was not accepted by 10.02.2018, the offer stood automatically lapsed and Bank had the right to recover full dues. The said letter dated 29.01.2018, which is annexed as Annexure C-4 to the affidavit-in-opposition filed by the Bank respondent No.1, reads as follows:-
"To,
MS AND SONS (Prop:Mayengbam Tej Singh)
SINGJAMEI MAYENGBAM LEIKAI,
Imphal West Manipur
Reg: Your NPA Loan Account No. 3212974165 with our Branch having debit balance Rs. 73 Lakhs With interest charged up to 25.01.2018 only.
Ref:- Our letter dated 25.01.2018.
Sir,
It is to inform you that date appearing as 31.03.2018 in our Letter dt.
25.01.2018 is changed /revised to 10.02.2018.
Please note that the offer for OTS is valid upto 10.02.2018 and as such avail this opportunity to get rid of your debt.
Failing to avail this offer within stipulated time i.e. latest by 10.02.2018, this offer will stand automatically lapsed and Bank will have right to recovery full dues with up to date interest by Auction of the Mortgage property.
With regards,
Sd/-
Chief Manager,
Imphal Branch."
[7] It has been submitted by the Bank authorities that since the petitioner did not avail the benefits of the revised OTS proposal upto the revised date, necessary e-auction had been carried out. It has been further submitted by the Bank authorities that the said revision of time schedule, as mentioned in the letter dated 21.9.2018, was because of the fact that the e-auction was scheduled to be held on 16.02.2018. Accordingly, the said revised schedule was given to the petitioner, which he did not accept.
This contention of the Bank, however, has been denied by the petitioner saying that the petitioner never received any such letter dated 29.01.2018 revising and preponing the earlier date of offer.
[8] In view of the above, this Court had directed the Bank authorities to file necessary affidavit-in-opposition to show that such revised schedule had been duly intimated to the petitioner.
Accordingly, the Bank authorities filed an affidavit on 20th April, 2018 stating that the Chief Manager, Central Bank of India, Imphal Branch, M.G.Avenue, Imphal West District hereinafter had gone to the house of the petitioner along with one Okram Raju to deliver the letter dated 29.01.2018 in the evening. It was also stated that however, though the petitioner was found near the mortgaged land and was handed over the letter, he refused to acknowledge the receipt of the same as stated in para No.4 of the said affidavit-in-opposition.
[9] This again has been disputed by the learned counsel for the petitioner contending that it was a wrong statement made by the Chief Manager, Central Bank of India and is not supported by any evidence and he never visited and met the petitioner on that day. In fact, the excerpts of the register which has been annexed by the bank authorities do not indicate that it had been delivered. As far as this issue is concerned, though it is a disputed question of fact, the fact remains that if the bank authorities assert that the letter containing the revised schedule had been delivered to the petitioner, the onus is squarely on the bank authorities to prove the same.
[10] In the present case, this Court would have been satisfied if the corroborating affidavit of the person, namely, Okram Raju, had been also enclosed to show that the Bank had delivered the letter dated 29.01.2018 to the petitioner. Secondly, it is quite unusual that the Chief Manager himself would go to a loanee to deliver a letter which is normally done either by registered post or some other modes of communication, which is generally resorted to by the Bank authorities. Therefore, this Court is of the view that the claim made by the Bank that the said letter dated 29.1.2018 had been delivered to the petitioner, falls short of the proof required and accordingly, this Court is not inclined to accept the plea of the Bank. If that is so, this Court would hold that the letter dated 29.1.2018 had not been delivered to the petitioner. In that event, the subsequent proceeding including e-auctioning initiated by the bank authorities cannot be said to be valid. In that view of the matter, this Court holds that the e-auction held by the bank authorities was illegal and was done by changing the rules of the game as mentioned above.
[11] Mr. Jotendro, learned senior counsel for the private respondents, however submits that they have already purchased the mortgaged property which had been e-auctioned by the Bank and further, this petition is not maintainable for the reason that the petitioner had approached the Debt Recovery Tribunal, Guwahati on an earlier occasion and that the Tribunal did not admit the application of the petitioner on the ground that that the Debt Recovery Tribunal has no jurisdiction and thereafter, he ought to have approached the appropriate appellate forum.
On the other hand, it has been submitted by Mr. N.Ibotombi, learned senior counsel that since the Debt Recovery Tribunal did not entertain the application of the petitioner on the ground that it does not have jurisdiction and not by considering the merit of the petition, the petitioner had no other alternative but to resort to the most efficacious alternative remedy available to him by filing a writ petition by invoking the writ jurisdiction under Article 226 of the Constitution of India.
[12] This Court is also of the view that if the Debt Recovery Tribunal, Guwahati had refused to entertain the application of the petitioner on the ground of lack of jurisdiction, invoking the extraordinary power of this Court under Article 226 of the Constitution of India by the petitioner cannot be faulted with.
[13] In view of the above, this Court holds that the petitioner has been able to make out a case in his favour and e-auction which was held on 16.02.2018 is declared illegal as the petitioner was denied the opportunity to clear his debt as mentioned above and the natural consequence is that if the petitioner is still willing to clear the debt, he will be entitled to regain possession of the said mortgaged property from the Bank on payment of the due amount within a period of 2 (two) months from today. The private respondent Nos. 3 & 4, who had purchased the mortgaged property have to return the mortgaged land to the Bank and would be entitled to be refunded of the purchased price from the Bank paid, to the Bank including any incidental charges as they cannot derive any benefit out of an illegal transaction.
[14] In view of the above observations and directions, this writ petition is allowed and the e-auction held on 16-2-2018 and the impugned order dated 22.02.2018 are set aside with the direction that the petitioner will be entitled to retain the mortgaged property on payment of outstanding dues within 2(two) months from today as directed and the private respondents No.3 and 4 are liable to return the mortgaged property of the petitioner to the Bank for being delivered to the petitioner on payment of the dues to the Bank as directed above and the respondents No.3 and 4 will be entitled to be refunded the e-auction amount paid by them to the Bank along with incidental charges incurred by them.