Mrs. Ayesha Moosa vs Bank of India and M/s. M.V.R. Constructions

B.S. Patil

In these writ petitions, petitioners are calling in question the Possession Notice dated 04.08.2011 issued by the respondent - Bank in respect of the petition schedule property. Petitioners are also calling in question the Auction Notice dated 02.10.2011 published in the ''Hindu'' and ''Udayavani'' daily newspapers notifying public auction to be held on 10.11.2011 for auctioning the petition schedule property.

Petitioners are the legal representatives of the Guarantor late K. Mohammed Moosa. According to the petitioners, they are the owners of the property having succeeded to the same from late K. Mohammed Moosa. Petition schedule property is described as commercial property hearing No. 23 Old No. 1. BBMP Khatha - 23, Benson Road, Benson Town, Bangalore -560 046, measuring 38000 sq.ft. This property is brought for sale by the respondent - Bank for realisation of the total dues in a sum of Rs. . 3,15,61,325/- plus interest and other charges payable by M/s. M.V.R. Constructions - 2nd respondent herein.

At the outset, to the court query that why the petitioners have not approached the Debts Recovery Tribunal at Bangalore u/s 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Learned Counsel for the petitioners submits that the petitioners being the legal representatives of the Guarantor have a genuine intention to protect their property from being sold by discharging the dues if affordable installments are given to the petitioners.

Learned Counsel for the petitioners draws the attention of the Court to the letter dated 26.08.2011 addressed by the Bank as per Annexure-C where under the Bank has made it clear that if the dues were to be discharged within a period of two weeks, they will consider the request of handing over the Title Deeds in respect: of the property belonging to late K. Mohammed Moosa, the Guarantor.

Learned Counsel for the petitioners contends that if the Bank gives a reasonable time, the petitioners will make arrangement and discharge the dues,

Sri G.S. Bhat, Learned Counsel appearing for the 2nd respondent raises objection for handing over the Title Deeds in favour of the petitioners. Learned Counsel appearing for the respondent - bank submits that the petitioners have an alternative remedy of approaching the Debts Recovery Tribunal and therefore this Court may not interfere with the Auction Sale notified as per Annexures-A & A1.

Upon hearing the Learned Counsel for the parties and on consideration of the facts and circumstances of the case, I find that the petitioners who are the legal representatives of the deceased - Guarantor are genuinely interested in protecting their property by discharging the dues which are payable by the 2nd respondent.

Sri Shashikiran Shetty, Learned Counsel for the petitioners submits that if three installments are given, the entire amount due and payable to the 1st respondent - Bank will be discharged. Though this submission clearly demonstrates the bonafides on the part of the petitioners, having regard to the stand of the 1st respondent, the nature and duration of the installments to be given to the petitioners has to be decided by the Tribunal before which the petitioners have alternative remedy. However, as rightly pointed out by the Learned Counsel for the petitioners, if the auction is permitted to be conducted, then it will result in irreparable loss and injury to the petitioners who have approached this Court showing their bonafides of discharging the dues and also expressing their willingness to deposit substantial sum of money with the 1st respondent - Bank towards settling the loan amount. It is contended by the Learned Counsel for the petitioners that the Tribunal is sitting for three days in a week and petitioners must have breathing time to move the Tribunal and persuade the Tribunal to take up the case.

As the Learned Counsel for the petitioners states that the petitioners are walling to deposit a sum of Rs. . 60,00,000/- with the 1st respondent - Bank to show their bonafides. I am inclined to grant 30 days time to the petitioners to approach the Tribunal on condition that the petitioners shall deposit a sum of Rs. . 60,00,000/- towards the loan amount payable by the 2nd respondent within 15 days from today. Petitioners are reserved liberty to approach the Tribunal within 30 days from today with necessary application as per the provisions of Section. 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It is also made clear that: it will be open to the petitioners to make representation to the 1st respondent - Bank, in the meanwhile expressing their willingness to discharge the remaining amount within a time frame and it would be open for the 1st respondent - Bank to consider the said representation and take appropriate decision in accordance with law.

If the amount: of Rs. . 60,00,000/- is not deposited within 15 days, petitioners will not be entitled for the benefit of this order. Writ Petition is accordingly disposed of.