Smt. Rekha Gupta vs State of Uttarakhand and Others

Hon''ble V.K. Bist, J.—Mr. Anurag Bisaria, Advocate, for the petitioner.

Mr. Dinesh Gahtori, Standing Counsel, accepted notice on behalf of the State/respondent No. 1.

Mr. B.D. Upadhyaya, Senior Advocate, assisted by Mr. Bhupendra S. Bist, Advocate, accepted notice on behalf of the respondent No. 2/State Bank of India.

Issue notice to respondent No. 3.

Heard.

This petition has been filed by the petitioner seeking direction to the respondent bank not to evict the petitioner and her family from the portion of the property in question, till the disposal of Civil Suit No. 112/2010, Smt. Rekha Gupta & Others v. Jawahar Lal Agarwal, pending before the Civil Judge (Sr. Div.), Nainital. Further prayer has also been made for issuing direction to the respondent bank to permit the petitioner to deposit the outstanding loan amount of 31,68,985.73.

The property in question was purchased in the year 1984 by the father of the petitioner. In the year 2010, petitioner along with her brother and sister filed the Civil Suit No. 112/2010, Smt. Rekha Gupta & Others v. Jawahar Lal Agarwal, for cancellation of sale deeds dated 12.3.1984 and 4.2.1985 and also for permanent injunction regarding the property in question, which is still pending adjudication before the Civil Judge (Sr. Div.), Nainital. In the meantime, respondent No. 3, Jawahar Lal Agarwal, took loan from the State Bank of India, Haldwani Branch, District Nainital by mortgaging the said property, but subsequently committed default and thus failed to repay the entire loan amount. Notices were issued by the bank to the respondent No. 3 for payment of the outstanding loan amount, but when the outstanding amount was not paid, the bank, after completing the necessary formalities, took possession of the property, in question, except the portion thereof in which the petitioner and her family were residing.

Now, the petitioner has come up before this Court against the proposed auction of the said property by the bank.

Learned Counsel for the petitioner submitted that the respondent bank is going to auction the entire property including the portion in which the petitioner is residing along with her family. He submitted that since the civil suit regarding the cancellation aforesaid sale deeds is still pending before the civil court, the petitioner will suffer irreparable loss if the property in question is auctioned by the respondent bank. He further submitted that the petitioner is ready to deposit the entire outstanding loan amount along with interest with the respondent bank. He also submitted that during the pendency of the petition, the petitioner would also not claim title over the disputed property with the respondent bank.

Mr. B.D. Upadhyaya, learned Senior Advocate, for the respondent bank submitted that the interim relief should not be granted in favour of the petitioner unless she deposits the entire outstanding loan amount, which, according to him, is rupees forty five lakhs. He submitted that as per the valuation, actual value of the property in question is rupees sixty five lakhs, and the petitioner should be asked to deposit the entire actual value of the property.

I have considered the submissions of the learned Counsel for the parties.

Since learned Counsel for the petitioner has made statement that petitioner is ready to deposit the entire outstanding loan amount including interest, and she will also not claim title over the property, in question, from the bank, I think it proper that for a short period, some protection should be given to the petitioner. Therefore, I direct that in case the petitioner deposits rupees forty five lakhs with the respondent bank towards the entire outstanding loan amount along with interest on or before 22.2.2012, the petitioner shall not be evicted from the portion of the property in question, in which she is residing at present and auction of the said property shall remain stayed till the next date of listing. In case of default, this order shall stand vacated automatically.

Urgency application No. 865/2012 and stay application No. 821/2012 stand disposed of accordingly.

List in the week commencing 12th March, 2012.

Respondents may file their respective counter affidavit in the meantime.

Certified copy of this order shall be supplied today to learned Counsel for the parties on payment of usual charges.