Telangana High Court
Smt. Gotte Padmavathi vs State Bank Of India And 2 Others on 5 June, 2023
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.2713 OF 2020
ORDER:
Heard Mr. Ch. Shashi Bhushan, learned counsel for the petitioner and Mr. Podila Hari Prasad, learned Standing Counsel appearing for the respondent bank. Despite service of notice, none appears for respondent No.4, who was impleaded subsequently vide orders in I.A. No.1 of 2022.
2. This writ petition is filed to declare the action of respondent Nos.1 to 4 in transferring the amount of Rs.20,000/- per month from out of petitioner's S.B. A/c No.20170839235 into the vehicle loan A/c No.35595039723 without there-being any order from the competent Court without exercising their right of hypothecation, as illegal, and for a consequential direction to respondent Nos.1 to 4 to re-transfer the entire amount deducted from the petitioner S.B. Account for the period from 11.01.2016 to 05.01.2017.
3. Facts:
i) The petitioner herein is holding S.B. Account with respondent No.3 bank. According to her, she is receiving family 2 KL,J W.P. No.2713 of 2020 pension pertaining to her late husband and the said family pension is being credited into the said account.
ii) Respondent No.4 availed Car Loan from respondent No.3 bank to which the petitioner herein stood as guarantor. Respondent No.4 failed to repay the said loan amount and, therefore, respondent No.3 had filed a suit vide O.S. No.161 of 2017 seeking recovery of amount and the said suit is pending against the petitioner and respondent No.4.
iii) During pendency of the said suit, respondent No.3 started transferring an amount of Rs.20,000/- from the account of the petitioner towards the vehicle loan obtained by respondent No.4 without her knowledge. On coming to know about the same, she requested respondent No.3 to re-transfer the said amount to her account, for which respondent No.3 did not consider. The said amount of Rs.20,000/- per month was transferred from the account of the petitioner to the aforesaid loan account of respondent No.4 from 11.01.2016 to 05.01.2017. Therefore, the said action of respondent No.3 in transferring the aforesaid amount of Rs.20,000/- per month from the family pension of the petitioner to the loan account of respondent No.4 is illegal. Pension is granted as social security 3 KL,J W.P. No.2713 of 2020 measure for sustenance of the petitioner. The bank cannot transfer the said pension under the guise of recovery of loan amount. The said action of respondent No.3 is illegal and also in violation of the provisions of the Code of Civil Procedure, 1908.
iv) Learned counsel for the petitioner has also placed reliance on the principle laid down by the Hon'ble Supreme Court in Radhey Shyam Gupta v. Punjab National Bank1 and the Calcutta High Court in Soharab Hossain v. The State Bank of India, Kolkata Head Office2.
4. Contentions of respondent Nos.1 to 3:
i) Respondent No.3 had filed counter contending that Smt. K. Sunanda, had obtained car loan of Rs.10,00,000/- from respondent No.3 bank on 24.02.2016. The petitioner herein stood as guarantor to the entire loan availed by respondent No.4. The petitioner had executed a consent letter dated 10.02.2016 in favour of respondent No.3 bank for appropriation of the said amount. Respondent No.4 failed to clear the said loan amount and, therefore, respondent No.3 has issued notice to the petitioner as well as the said Smt. K. Sunanda for recovery of amount and thereafter filed a suit vide O.S. No.161 of 1 . (2009) 1 SCC 376 2 . W.P. No.2912 (W) of 2017, decided on 15.03.2017 4 KL,J W.P. No.2713 of 2020 2017 and the same is pending. Pursuant to the said consent letter, dated 10.02.2016, respondent No.3 bank transferred an amount of Rs.20,000/- per month from the account of the petitioner into the loan account of respondent No.4 for the period from 05.04.2016 to 09.05.2017. In the consent letter dated 10.02.2016, the petitioner herein has categorically mentioned that all her sons are earning members and they are looking after her welfare and, therefore, the said amount of Rs.20,000/- may be transferred from her S.B. Account to the vehicle loan account of respondent No.4. Therefore, there is no illegality or violation of any loan agreement.
ii) The petitioner filed the present writ petition without arraying the said Smt. K. Sunanda as party to the present writ petition and, therefore, the writ petition is liable to be dismissed for not making necessary party. With the said submissions, respondent No.3 sought to dismiss the present writ petition.
iii) Respondent No.3 had filed the counter on 05.12.2020 stating that Smt.K. Sunanda obtained the car loan of Rs.10.00 lakhs from respondent No.3 bank on 24.02.2016. The petitioner stood as guarantor to the said loan. Even the petitioner in her writ affidavit stated the said fact, but according to her, she is alleged guarantor. 5
KL,J W.P. No.2713 of 2020 However, she has not made the said K. Sunanda as party to the present writ petition. However, the petitioner herein has filed I.A. No.1 of 2022 to implead M/s. Sunanda Travels represented by its proprietor, Smt. Kommu Sunanda as party to the present writ petition only on 14.09.2022, that too, when an objection was raised by learned counsel for respondent Nos.1 to 3 bank.
5. Analysis and Finding of the Court:
i) It is relevant to note that according to respondent No.3, Smt. K. Sunanda was the loanee and the petitioner herein is the guarantor.
Even then, the petitioner has filed the aforesaid application to implead M/s. Sunanda Travels represented by Smt. K. Sunanda as party. Therefore, respondent No.4 is also not a necessary party and, in fact, Smt. K. Sunanda is a proper and necessary party.
ii) It is the specific case of respondent No.3 that the petitioner had submitted notarized consent letter dated 10.02.2016 to respondent No.3 stating that she is the account holder and she is giving consent to transfer monthly EMI from her pension account which is below Rs.25,000/- from her pension account to Smt. K. Sunanda account, till realization of the entire loan amount. The said K. Sunanda presently obtaining loan from respondent No.3 bank for an amount of Rs.10.00 6 KL,J W.P. No.2713 of 2020 lakhs for subsidy car loan, that her sons are earning members, they are looking after her welfare. Therefore, she has submitted notarized consent letter dated 10.02.2016 with respondent No.3 bank at the time of availing the loan by Smt. K. Sunanda. Thus, according to respondent No.3 bank, they have started transferring an amount of Rs.20,000/- per month from the account of the petitioner to the vehicle loan account of the borrower for the period from 05.04.2016 to 09.05.2017. The petitioner herein has not filed any reply/rejoinder denying the said fact. However, in the implead application filed by her, she has stated that the Bank Authorities have obtained her signature on some printed papers along with white papers.
iii) It is not in dispute that Smt. K. Sunanda failed to repay the said loan amount to respondent No.3 bank and, therefore, after issuance of notices demanding the said amount, respondent No.3 bank had filed a suit vide O.S. No.161 of 2017 for recovery of due amount against the petitioner and Smt. K. Sunanda. The said suit is pending. In the counter affidavit filed by respondent No.3, it is specifically stated that respondent No.3 has transferred the said amount of Rs.20,000/- per month for the period from 05.04.2016 to 09.05.2017 7 KL,J W.P. No.2713 of 2020 i.e., 14 months. Though the counter was filed on 05.12.2020, there is no mention about the transfer of the said amount after 09.05.2017.
iv) During the course of hearing, both learned counsel for the petitioner and respondent No.3, on instructions, submitted that the said suit is pending for trial.
v) There is no dispute that respondent No.3 bank cannot recover the amount from the pension account of the petitioner. However, she has submitted the aforesaid notarized consent letter dated 10.02.2016, wherein it is specifically mentioned that she is giving consent to transfer the monthly EMI from her pension account which is below Rs.25,000/- to the account of Smt. K. Sunanda till realization of the entire loan amount. It is further stated that her sons are earning members and they are looking after her welfare.
vi) In the present writ petition, the petitioner sought to declare the action of respondent bank in transferring the amount of Rs.20,000/- per month from her S.B. Account into the vehicle loan account without there-being any order from the competent Court and without exercising their right of hypothecation as illegal and for a consequential direction to respondent bank to re-transfer the entire amount transferred from the petitioner's S.B. A/c for the period from 8 KL,J W.P. No.2713 of 2020 11.01.2016 to 05.01.2017. But, according to the petitioner, they have transferred the said amount of Rs.20,000/- per month from 05.04.2016 to 09.05.2017 and, thereafter, they have not transferred the said amount. Admittedly, the aforesaid suit is pending. There are disputed questions of fact. According to the petitioner, she never stood as guarantor to the said loan amount and she never executed the aforesaid consent letter as alleged by respondent No.3. bank. According to respondent No.3, the petitioner had submitted the aforesaid notarized consent letter dated 10.02.2016 with her own will and consent and accordingly they have transferred the said amount of Rs.20,000/- from the account of the petitioner to the vehicle account of Smt. K. Sunanda. There is no dispute with regard to period of transfer of the amount. However, the aforesaid suit is pending and the said facts will be considered by trial Court in the aforesaid suit. The petitioner can seek to re-transfer of the aforesaid amount deducted from her account from 11.01.2016 to 05.01.2017 in the said suit. She can file a 'counter claim' in the said suit. The said aspects will be considered and decided by trial Court.
vii) According to the petitioner, M/s. Sunanda Travels is the loanee, whereas, according to respondent No.3, Smt. K. Sunanda is 9 KL,J W.P. No.2713 of 2020 the loanee. The said aspects cannot be decided by this Court in a writ petition under Article - 226 of the Constitution of India.
viii) In view of the aforesaid legal position, according to this Court, the petitioner herein is not entitled for a consequential direction to respondent No.3 bank to re-transfer the amount deducted from her account to the loan account of Smt. K. Sunanda.
6. Conclusion:
In view of the aforesaid discussion, this writ petition is disposed of granting liberty to the petitioner and respondent bank to take all the contentions and grounds which they have taken in the present writ petition before the trial Court in O.S. No. 161 of 2017. In the circumstances of the case, there shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J 5th June, 2023 Mgr