Madras High Court
Kanagajothi vs The Authorised Officer on 27 July, 2015
Bench: S.Manikumar, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.07.2015
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
W.P.(MD).No.4938 of 2014
M.P.(MD).Nos.1 to 3 of 2014
Kanagajothi . . Petitioner
versus
1.The Authorised Officer,
Central Bank of India,
Regional Office,
Raja Muthaiah Mandram,
1st Floor,
Dr.Ambedkar Road,
Madurai.
2.The Branch Manager,
Central Bank of India,
Chidambaram Nagar Branch,
54, Beach Road,
Fairlight, Thoothukudi,
Thoothukudi District.
3.The Superintendent of Police,
Thoothukudi District.
4.S.Arumugasamy
5.Balasaraswathi
6.Thanaraj
7.S.Selvakumar
8.S.Natarajan . . Respondents
Prayer
Writ petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus to call for the records relating to
the sale notice issued by the 1st respondent dated 24.02.2014 and quash the
same as illegal and directing the respondents 1 and 2 to release all the
original/parent documents of the property of the petitioner in Survey
No.148/1 in Om Santhi Nagar, at Plot No.77, in Sankaraperi village to the
extent of 7.39 cents which is under the custody of respondents 1 and 2.
!For Petitioner : Mr.P.Pethu Rajesh
For respondents : Mr.R.Pandivel for R1 R2 and R4
Mr.N.Manoharan for R3
Special Government Pleader
Mr.T.Lajapathiroy for R5 to R8
:ORDER
(Order of the Court was made by S.MANIKUMAR ,J.) Being aggrieved by the sale notice dated 24.02.2014, the petitioner, a co-guarantor, has sought for a Writ of Certiorarified Mandamus, to quash the sale notice and to release the original/parent documents of her property in Survey No.148/1 in Om Santhi Nagar, at Plot No.77, in Sankaraperi village, to the extent of 7.39 cents.
2. Sum and substance of the supporting affidavit is that, the fifth respondent proprietor of Sri Saraswathy Yarns, Thoothukudi, is a principal debtor of Central Bank of India, Fairlight, Thoothukudi, Thoothukudi District. Respondents 5 and 6 are the husband and wife, respectively. Respondents 7 and 8 are the brothers of respondent No.5. Thanraj, Respondent No.6, is the petitioner?s cousin.
3. The Petitioner has further contended that she purchased the property in Survey No.148/1 in Om Santhi Nagar, at Plot No.77, in Sankaraperi village to the extent of 7.39 cents. In the year 2011, respondent No.6, cousin of her husband, told the petitioner that the fifth respondent is running a company, Sri Saraswathy Yarns and in order to mobilise investment to run the company, on 31.08.2009, he entered into an agreement with Central Bank of India, Fairlight, Thoothukudi, Thoothukudi District. He had obtained loan and credit facilities. From 2010 onwards there was shortage of cotton and he could not repay the loan amount regularly. Credit facilities also aggravated. Bank was contemplating sale of the properties. Under such circumstances, the fifth respondent requested the petitioner to execute an equitable mortgage deed in favour of Central Bank of India, the second respondent herein. Accordingly, an equitable mortgage deed was executed in respect of the property located at Survey No.148/1 in Om Santhi Nagar, at Plot No.77, in Sankaraperi village to the extent of 7.39 cents
4. The petitioner has further contended that on 15.05.2013, the authorised officer of Central Bank of India, respondent No.1 issued notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as the SARFAESI Act) calling upon the petitioner to pay a sum of Rs.33,21,640/-. On receipt of the notice, the petitioner along with husband went to the house of respondents 5 and 6 and questioned them, as to why they had not repayed the loan. They also expressed their displeasure that because of the non payment, her property would be sold. Respondents 5 and 6 assured repayment within three months.
5. During November 2013, respondents told the petitioner that they had paid all the amounts due to the bank and respondent No.2 also handed over the document No.3522 of 2013 which is registered on the file of Sub Registrar, Thoothukudi. The petitioner in her supporting affidavit has further contended that the said fact was affirmed by the respondents 5 to 8 stating that the amount was paid as One Time Settlement. Thereafter, the petitioner has requested for return of original documents.
6. When the matter stood thus, once again, a fresh sale e-auction notice dated 24.02.2015 was issued. Immediately, the petitioner rushed to the house of respondents 5 to 8. They reiterated that the entire amount was repaid, as one time settlement and that a document dated 21.08.2013, has also been registered. Thereafter, when the petitioner approached the bank, they insisted for payment, for release of the parent document. It is the contention of the petitioner that having received the entire loan amount of Rs.33,21,640/- and consequently, when the Sub Registrar, Thoothukudi, has also registered the document No.3522 dated 21.10.2013 on the file of Sub Registrar, Thoothukudi, it is not open to the respondent No.1 to bring the property for auction and hence, sale notice under Section 13(2) of the SARFAESI Act, is liable to be set aside.
7. The respondent bank has filed a detailed counter affidavit, wherein, it has stated as follows:-
?5. The respondent bank has taken symbolic possession of the property on 07.10.2013 and issued possession noticed dated 07.10.13 and affixed the possession notice on the conscious part of the property on 07.10.13 and published the same in Tamil Daily ?Dinamani? & English Daily ?Indian Express? on 12.10.13. The 5th respondent Tmt.Balasaraswathi is the borrower of the proprietrix of M/s.Sri Saraswathi Yarns and her husband Thiru. Dhanraj, who is the sixth respondent herein is looking after her wife's business. While taking symbolic possession of the property, the 6th respondent Thiru.Dhanraj accompanied and presented along with officials of respondent bank. Since he is looking after her wife's business possession notice was served on him and he made anacknowledgement in the possession notice.
6. The respondent bank has further stated that the 6th respondent Tmt.Balasaraswathi, proprietrix of M/s.Sri Saraswathi Yarns borrowed two loans namely Term Loan for a sum of Rs.11,50,000/- and Cash Credit Facility to the limit of Rs.20,00,000/- totaling Rs.31,50,000/-.
7. The respondent bank has submitted that to secure the above said loans the petitioner Tmt.Kangajothi (cousin sister of the borrower 5th respondent Tmt.Balasaraswathi) has deposited her title deeds and created equitable mortgage over her property and executed a registered memorandum of deposit of title deeds dated 12.08.2011 bearing Doc.No.2213/11 and that the respondents 7 & 8 namely Thiru.Selva Kumar & Thiru.Natarajan (brothers of the borrower 5th respondent Tmt.Balaraswathi) have deposited their title deeds and created equitable mortgage over their property and executed a registered memorandum of deposit of title deeds dt.31.08.09 bearing Doc.No.2280/09 and supplemental memorandum of deposit of title deeds dated 12.08.11 bearing Doc.No.2759/11.
8.The respondent bank has further stated that since the defaulters have not repaid the loan, the respondent bank declared the account as NPA (Non performing Asset) and issued a demand notice, dated 15.05.13 under Sarfaesi Act for the recovery of loan amount. Whileso the borrower 5th respondent Tmt.Balasaraswathi has sent a letter dat.13.05.13 to the respondent bank stating interalia that her brothers the respondents 7 & 8 namely Thiru.Selvakumar & Thiru.Natarajan are ready to sell their property which was mortgaged with the bank in order to repay the part of the loan amount and requested the respondent bank to do the needful. Subsequently the borrower 5th respondent Tmt.Balasaraswathi had sent another letter dated 04.07.13 that one person is ready to purchase the said property and requested the respondent bank to do the needful; for which the respondent bank has sent a letter dated 05.07.13 permitting to sell the mortgage property belonging to the respondents 7 & 8 namely Thiru.Selvakumar & Thiru.Natarajan. Subsequently the borrower 5th respondent Tmt.balasaraswathi has requested the respondent bank through her letter dt. 21.10.13 to release the property of her brothers the respondents 7 and 8 namely Thiru.Selvakumar & Thiru.natarajan on payment of Rs.10 Lacs since the proposed purchaser is ready to purchase the property for Rs.10 Lacs since the proposed purchaser is ready to purchase the property for Rs.10 Lacs only. The said letter was duly counter signed by the owners of the property namely Thiru.Selvakumar & Thiru.Natarajan the respondents 7 and
8 herein. On granting permission by the bank, the borrower has remitted Rs.10 Lacs on 21.10.13 and that the respondent bank has released the property belonging to the respondents 7 & 8 namely Thiru.Selvakumar & Thiru.Natarajan through a registered discharge receipt dt.21.10.13 and that the said sum of Rs.10 Lacs was duly credited in the loan account.
9. The respondent bank has further stated that the balance loan amount payable is Rs.26,78,401/- as on 20.02.14 with subsequent interest & cost and since the balance loan amount was not repaid, the respondent bank has issued the sale notice dt. 24.02.14 under Sarfaesi Act by bringing the mortgage property belonging to the petitioner for sale. On receipt of the sale notice the petitioner has come forward with this Writ Petition with untenable allegation as if the entire loan amount was discharged and that the bank has not released her title deeds.
10.The respondent bank does not admit the allegation of the petitioner, that in the year 2005 at the time of her delivery she suffered from epilepsy & mental depression and admitted at Galaxy Hospital &U took treatment and so her mother-in-law gave complaint to the police, as true & correct. The said allegations were purposely created for the case in order to stall the Sarfaesi proceedings. The petitioner has produced medical records only upto the year 2007. Further no such allegation as alleged by the performing were mentioned in the medical records produced by her. Further the petitioner has not produced any medical records after the year 2007 to till date. The petitioner had created equitable mortgage with the bank in the year 2011 to till date. The petitioner had created equitable mortgage with the bank in the year 2011 and thereafter execute memorandum of deposit of title deeds which was duly registered with Sub Registrar Office which shows that the petitioner is same and she was not mentally affected person.
11. It is the further case of the respondent bank that in her affidavit the petitioner has categorically admitted that in order to help the borrower, she had mortgaged the property and executed memorandum of deposit of title deeds and registered the same. But, in the police complaint it has been alleged that petitioner has been cheated and that the equitable mortgage has been obtained. So the contradiction in the affidavit and in the police complaint clearly shows that the petitioner is making false allegations.
12. The respondent bank has further submitted that the petitioner is not mentally affected person. She is normal and a sane person and so she has executed a registered memorandum of deposit of title deeds who appeared before the Sub Registrar for registering the same and that she received the demand notice & sale notice sent through the registered post and she acknowledged the same and she sworn affidavits and vakalath in this Writ Petition. They go without saying that the petitioner is a normal and sane person and not mentally affected person, as alleged by her.
13. The respondent bank has strongly denied the allegation, that in the month November 2013 the respondents 5 and 6 informed the petitioner that they have repaid the entire loan amount and that they have handed over the copy of the registered discharge receipt dt. 21.10.13 and that the respondents 5 yo 8 affirmed that the amount paid by them was under one time settlement and immediately the petitioner approached the respondent bank & requested to hand over her title deeds; for which the respondent bank informed that some amount has to repaid and that only after paying that amount documents will be released and at that point of time petitioner's mental depression got bad and admitted at hospital for treatment and so she requested her mother-in-law to give complaint in the police and after receiving the sale notice dt. 24.02.14 she once again approached the respondents 5 to 8 and that the respondents 5 to 8 again handed over the copy of the said discharge receipt dt. 21.10.13 and that the said documents was outcome of one time settlement and that the respondents 5 yo 8 affirmed that they have repaid the entire loan amount and that she again contacted the respondent bank; for which the respondent bank gave evasive reply that she has to be paid Rs.5 Lacs and then only the documents can be released and that the respondent bank has cheated her, as absolutely false, totally misleading and highly unsustainable. Whereas the fact remains that the petitioner has never approached the respondent bank and that the respondent bank has never stated that some amount has to be paid or Rs.5 Lac alone has to be paid; whereas after adjusting the payment of Rs.10 Lacs the amount payable by the defaulters is more than Rs.25 Lacs. The respondent bank never cheated the petitioner and it has not having intention to do so and it will not do so. All the said allegations are raised by the petitioner against her conscious for the purpose of the case. The petitioner has alleged in her affidavit that in the month of November 2013 the copy of the discharge receipt was handed over to her. Had it is so she ought to have produced the copy of the discharge receipt which was handed over to her in her typed set. Whereas she has produced the registration copy of the discharge receipt in her typed set which was obtained in the month of February 2014. According to the petitioner, she got the alleged knowledge that the entire loan amount was discharged even in the month of November 2013 and despite her alleged request the bank has not released the documents. In such case she ought to have issued notice to the bank either by the petitioner or by the borrower. The non issuance of the notice and long silence of the petitioner and the the borrower from the year November 2013 goes without saying that the petitioner has made false allegation. Further the petitioner has not stated on which date she contacted and approached the respondent bank. Her affidavit is so silent to that effect. It is pertinent to note that the borrower 5th respondent has not filed any Writ Petition or Sarfaesi Application challenging the sale notice on the ground that the entire loan amount was settled. Further there is no one time settlement (OTS) at all. In the letters sent by the respondent Tmt.Balasaraswathi, she never offered for OTS. Further, in the discharge receipt no where it has been stated that the account was settled under OTS. Had there any OTS, the petitioner ought to have produced the OTS offer letter. On the receipt of the sale notice, the borrower has instigated the petitioner to file this Writ Petition with untenable allegation.
14. The respondent bank has also submitted that the borrower in their letters dated 13.05.2013 and 04.07.2013 and 21.10.2013, never stated that they are willing to discharge the entire loan amount and never requested the bank to release both the properties. Further, the bank has not received the entire loan amount; whereas it has received only Rs.10 Lacs. Had the defaulters have paid the entire loan amount they ought to have produced the ?counter foil? of the pay-in-slip?. It is usual practice and procedure of the Sub Registrar to mention the loan amount in the discharge receipt. Unless the entire loan amount is mentioned, the Sub Registrar will not register the discharge receipt. The amount mentioned in the discharge receipt is only the amount sanctioned and borrowed and not the entire loan amount outstanding. The discharge receipt was executed on 21.03.2013. in the possession notice which was issued on 07.10.2013 it has been clearly mentioned that the outstanding amount is Rs.33,21,640/- as on 30.04.2013 with subsequent interest. Since the borrower has remitted Rs.10 Lacs and requested to release the property of the respondents 7 and 8 namely Thiru.Selvakumar and Thiru.Natarajan, their property alone was released and their name alone is mentioned in the discharge receipt and the memorandum of deposit of title deeds & supplemental memorandum of deposit of title deeds executed by them alone is mentioned in the discharge receipt. Had the entire loan was discharged and had the respondent bank wants to release all the property, then the said discharge receipt will bear the name of the petitioner and her property and the memorandum of deposit of title deeds executed by her also. But they are not mentioned, since Rs.10 Lacs alone remitted and since the property of the respondents 7 and 8 alone was released. The total amount payable by the defaulters as per the possession notice is Rs.33,21,640/- as on 31.04.2013 and that the borrower has remitted only Rs.10 Lacs and that the borrower in her letters have mentioned that the value of the property of the petitioner is about Rs.40 Lacs and that now they are willing to sell only the property belonging to the respondents 7 and 8 namely Thiru.Selvakumar & Thiru.Natarajan and that now they are ready to pay only Rs.10 Lacs towards part payment of the loan. In such a case how the petitioner can say that the entire loan amount was discharged. The said discharge receipt dated 21.10.2013 is only for the discharging the property of the respondents 7 and 8 namely Thiru.Selvakumar and Thiru.Natarajan and not for discharging the entire loan amount. The intention of the bank and the recitals of the discharge receipt are only for discharging the right of mortgage over the property of the respondents 7 and 8 namely Thiru.Selvakumar and Thiru.Natarajan and not for the entire loan amount due. Had the entire loan amount was discharged and both properties are released, in such a case the both properties have to be mentioned in the discharge receipt whereas only one property alone mentioned in the discharge receipt. Only Rs.10 lacs alone paid towards part payment of loan amount as shown in the statement of accounts. Under these circumstances the allegations put forth by the petitioner is nothing but tissues of falsehood and they all invented only for the purpose of the case and they are legally unsustainable.
15. It is the further case of the respondent bank that as on 07.04.14 the borrower guarantors and mortgagors have to pay a sum of Rs.27,28,133/-
16.The respondent bank has also submitted that since only part of loan amount was paid, the property of the respondents 7 & 8 namely Thiru.Selvakumar & Thiru.Natarajan alone was released from the right of mortgage. Since remaining loan amount was not paid, the property of the petitioner was not released. Only after paying the balance loan amount, the petitioner's property can be released.
17.The respondent bank begs to submit that since there is no procedural irregularity on the part of the respondent bank, the possession notice & sale notice may not be quashed.
18.The petitioner has challenged the sale notice issued under Sarfaesi Act. Since there is an alternative efficacious remedy namely Debt Recovery Tribunal, the Writ Petition is not maintainable.?
8. The Superintendent of Police, Thoothukudi District, in his counter affidavit has stated that he has been unnecessarily impleaded, as a party respondent. He has further stated that though a complaint from the petitioner through post dated 27.02.2014, was received, there was no prima facie case in it. It is also his submission that Kanagajothi, has voluntarily given guarantee to the borrower, the fifth respondent herein.
9. The Bank Manager, Central Bank of India, Fairlight, Thootthukudi District, appeared in Court and produced the relevant records.
10. In addition to the detailed counter affidavit filed by the Bank, Mr.R.Pandivel, learned counsel for the 1st and 2nd respondent bank fairly admitted that it is the mistake on the part of the Senior Manager, Central Bank of India, to have affixed the signature, in the document No.3522 dated 21.10.2013, as if the entire loan amount had been discharged. He further submitted that the fifth respondent, the borrower has paid only a sum of Rs.10,00,000/- and accordingly, the said payment was also entered in the accounts of the borrower. The petitioner requested the bank to hand over the title deeds of the other guarantors/respondents 7 and 8 respectively.
11. Learned counsel for the respondent bank further submitted that after payment of Rs.10,00,000/-, the borrower himself has requested time for further payment and also for settlement. Had the borrower paid the entire amount, then there is no need for the above request. On the above aspect, the learned counsel for the respondent bank requested the Court to peruse the documents filed in the form of typed set. He also submitted that there is no equity in favour of the guarantor/petitioner and prayed for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the materials on record.
12. The bone of contention of the petitioner is that the entire loan amount of Rs.31,55,000/- has already been paid by the borrower and that a Memorandum of Deposit of Title deeds has also been registered as document No.3522, dated 25th October 2013, in the office of the Sub Registrar Office, Thoothukudi and in the said document, one Mr.Arumugasamy, Senior Manager, Central Bank of India, has affixed his signature and therefore, the sale notice dated 15.05.2013, issued under Section 15 (2) of the SARFAESI Act, by the authorised officer Central Bank of India is liable to be set aside.
13. Memorandum of deposits of title deed dated 21.10.2013, registered on the file of the Sub Registrar Office, Melur, Thoothukudi, District, relied on by the petitioner, to contend that the entire loan amount has been discharged is extracted hereunder:-
?U:/31.55.000-=f;F Memorandum of Deposit of Title Deeds gzg;gw;W urPJ 2013k; tUlk; mfnlhgh; khjk; 21k; njjp J}j;Jf;Fo tl;lk;. J}j;Jf;Fo-2. rz;Kfg[uk; gpuhg;gh; bjU. fjt[ vz; 168 tPl;oy; Kd;g[ trpj;J te;J J}j;Jf;Fo-3. Kdparhkpg[uk; 2 tJ bjU. fjt[ vz; 27A/2 tPl;oy; trpj;J tUk; jpU.rz;KfRe;juk; mth;fs; Fkhuh; jpU.S.bry;tFkhh;(1) 3c, Industrial estate, Kakkalur, Tiruvallur vd;w Kfthpapy; Kd;g[ trpj;J te;J jw;nghJ J}j;Jf;Fo khtl;lk;. J}j;Jf;Fo tl;lk;. J}j;Jf;Fo-2. rz;Kfg[uk; gpuhg;gh; bjU. fjt[ vz; 168 tPl;oy; trpj;J tUk; jpU/rz;KfRe;juk; mth;fs; Fkhuh; jpU. S.eluh$d; (2) Mfpa ,UtUf;Fk;.
J}j;Jf;Fo khtl;lk. J}j;Jf;Fo tl;lk;. J}j;Jf;Fo-1. gPr; nuhL. 54 ek;gh; fl;olj;jpy; ,a';fptUk; Central Bank of India -f;fhf mjd; Kjd;ik nkyhsUk; jpU.S.MWKfrhkp mth;fs; K:yk; vGjpf; bfhLj;j gzg;gw;W urPJ vd;dbtd;why; (Employee P.F.No.38138) ,jd; jgrpy; fz;l brhj;ijg; bghUj;J j';fs; nkny fz;l Central Bank of India t';fpf;F 31/08/2009k; njjpapy; fld; tiff;F J}j;Jf;Fo nkY}h; rhh;gjptfk; 1 g[j;jf Mtz vz; 2280/2009 k; ek;guhf hp$p!;lh; bra;J bfhLj;jpUf;fpd;w U:/6.00.000-= U:gha; MW ,yl;rj;Jf;F Memorandum of Deposit of Title Deed gj;jpu tiff;Fk; gpd; mjd; bjhlh;r;rpahf ic& t';fpf;F 12/08/2011k; njjpapy;
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bjd;tly; 20 mo mfy fpHnknyhoa bghJg;ghijf;Fk; bjw;F j/Mapuk;-f;F ghj;jpag;gl;l tPl;L kid vz; 36f;Fk; fpHf;F tPl;L kid vz; 42f;Fk; tlf;F tPl;L kid vz; 38f;Fk; nkw;Fkhf ,e;j ehd;F khYf;Fs;gl;l kid fpHnky; tljiy kw;Wk; bjd;jiy mo 33 bjd;tly; nky;jiy kw;Wk; fPH;jiy mo 66 Mf 2178 rJuof;F brz;L 5 mst[s;s fhyp kida[k; jgrpy; tpguk; rhp/?
Senior Manager of the Central Bank of India has affixed his signature.
14. Letter dated 13.05.2013 of the borrower is extracted hereunder:-
?I have started a SME Unit in the name of ?Shri SARASWATHI YARNS? in the year 2009 with bank's help of 6 lakhs CC limit and the unit was functioning well.
In 2012 I went for expansion with bank's help of 11.55 lakhs as term loan and 20 lakhs as CC Limit. The total loan amount is Rs.31.55 lakhs from that amount I bought new machine for Rs.15.30 lakhs.
Our product is Bag closing thread which is used in packing of commodities like fertilizers, sugar, salt, pulses etc., Particularly my market is based on packing of fertilizers which is imported through Tuticorin, Karaikal, Mangalore and Cochin Ports.
At this juncture I am facing difficulties to run my unit due to the following reasons.
1) The unprecedented power failure which causes the manufacturing cost of the product very high. So I could not complete as I am new to the market.
2) Due to the unprecedented drought the import of fertilizers is reduced.
Thus our products demand also reduced.
Now I am finding difficulties to run the unit with credit burdens as the power cut and drought is still continues. So temporarily I suspended my unit's operation for the loan amount I have pledged two properties. One is worth about Rs.17.5 lakhs which belongs to my own brothers Mr.S.Natarajan and Mr.S.Selvakumar.
Another property is worth about Rs.40 lakhs which belongs to my cousin sister Mrs.Kanagajothi Balaji.
Even I found big market for my product other than fertilizer market, for a quiet period, I don't want to take any risk.
Now I have received notice from the bank that insisted me to repay the loan immediately. For that I am taking some steps now.
Initially I am going to reduce the loan amount. For that my brothers are ready to help me by selling their land which is pledged in the bank. Now parties are asking the land for 15 lakhs only, as the registration charge is very high.
Then my husband is about to get his share amount from his ancestors property very soon.
With the above steps I can close all my credits in the bank. Then at the right time I can start my unit again.
Now I request the bank to support me through the help of releasing mortgage of my brothers land. For that I am ready to pay Rs.15 lakhs. Both the properties are mortgaged separately. I hope it is easy to bank formalities too.?
15. Another letter dated 04.07.2013 of the borrower is extracted hereunder:-
?I have 20 lakhs CC Limit and 11.5 Lakhs term loans for my unit. For the above limits my brother S.Selvakumar and S.Natarajan and my sister B.Kanaga jothi given their properties as collateral. For some reasons my unit is not running properly, which leads my account to NPA. As to reduce my loan amount my brothers helping me by the way of selling their land. Now one party is ready to purchase the land for Rs.14 Lakhs. So I request to sell the land which is mortgaged in the bank by paying Rs.14 Lakhs to the bank. Kindly do the needful. It may help to revive my unit also. ?
16. Bank in its letter dated 05.07.2013 to the borrower has replied as follows:
?In consideration of your representation, our Regional Manager, Madurai has permitted you to sell one of the mortgaged property i.e. a house site in the name of Mr.S.Selvakumar and Mr.S.Natarajan for a sale value of not less than Rs.14.00 lakhs and bring the amount to the credit of the loan account to reduce the loan liability within 15 days. In case if it is not materialized the Bank if free to proceed against you legally for a sale of the property by the Bank.?
17. A reply dated 24.12.2014 has been given by the Bank. Thereafter, the borrower has sent a letter. Reading of the above letters make it clear that the borrower wanted to settle the loan as One Time settlement for Rs.15,00,000/-. The bank has felt that the sum offered was low and requested the borrower to improve the offer. The respondent bank also stated that if payment was made within one month, payment of interest would be considered. Details of credit facilities, sanctioned by the bank and as admitted by the borrower in his letters dated 20.10.2014, 07.01.2015, 05.04.2015 and 05.07.2015 respectively, are as follows:-
Letter dated 20.10.2014 ?ACKNOWLEDGEMENT OF DEBT Place:Tuticorin Date :20.10.2014 To The Senior Manager Central Bank of India, Tuticorin Branch.
Reg:Credit facilities sanctioned to us.
Sir, We hereby admit and acknowledge that the total debt due to you in Rs.2409579.76 + interest (Rs.Twenty four Lakhs nine thousand five hundred seventy nine and seventy six paise + interest) as on 20.10.2014 as detailed below
1.Cash Credit : Rs.1261715.76 + Int
2.Over Draft : Rs.
3.Term Loan : Rs.1147864.00 + Int
4.Packing Credit : Rs.
Total : Rs.2409579,76 + Int?
Letter dated 05.04.2015
?ACKNOWLEDGEMENT OF DEBT
Place:Tuticorin
Date :05.04.2015
To
The Senior Manager
Central Bank of India,
Tuticorin Branch.
Reg:Credit facilities sanctioned to us.
Sir,
We hereby admit and acknowledge that the total debt due to you in Rs.2409579.76 + Int (Rs.Twenty four Lakhs nine thousand five hundred seventy nine and paise seventy six + int) as on 20.10.2014 as detailed below
1.Cash Credit :Rs.1261715.76 + Int
2.Over Draft :Rs.
3.Term Loan :Rs.1147864.00 + Int
4.Packing Credit :Rs.
Total :Rs.2409579.76 + Int?
Letter dated 07.01.2015
?ACKNOWLEDGEMENT OF DEBT
Place:Tuticorin
Date :07.01.2015
To
The Senior Manager
Central Bank of India,
Tuticorin Branch.
Reg:Credit facilities sanctioned to us.
Sir,
We hereby admit and acknowledge that the total debt due to you is Rs.2409579.76 + Int (Rs.Twenty four lakhs nine thousand five hundred seventy nine and paise seventy six only + Int) as on 31.12.2014 as detailed below.
1.Cash Credit : Rs.1261715.76 + Int
2.Over Draft : Rs.
3.Term Loan : Rs.1147864 + Int
4.Packing Credit : Rs.
Total :Rs.2409579.76 + Int.
Letter dated 05.07.2015
?ACKNOWLEDGEMENT OF DEBT
Place:Tuticorin
Date :05.07.2015
To
The Senior Manager
Central Bank of India,
Tuticorin Branch.
Reg:Credit facilities sanctioned to us.
Sir,
We hereby admit and acknowledge that the total debt due to you is Rs.2409579.76 + Int (Rs.Twenty four lakhs nine thousand five hundred seventy nine and paise seventy six + Int) as on 30.06.2015 as detailed below.
1.Cash Credit :Rs.1261715.76 + Int
2.Over Draft :Rs.
3.Term Loan :Rs.1147864.00 + Int
4.Packing Credit :Rs.
Total :Rs.2409579.76 + Int
18. Encumbrance Certificate, dated 10.03.2015 of the property offered as security is still in the name of Central Bank of India, is extracted hereunder:
Certificate of Encumbrance on Property S.R.O: ORD C.C.No.1015 Appl.No.1015 Dated: 10.3.15 Thiru/Tmt.E.I.b$auh$;. N.P.K.bjU. J}j;Jf;Fo having applied to me for a certificate giving particulars of registered encumbrances if any, in respect of undermentioned property.
Village Survey Details Sankaraperi (S.No.148/1)
Property description/kD brhj;J tptuk;: J}j;Jf;Fo gjpt[ khtl;lk;. J}j;Jf;Fo $hapz;l; 1 ek;gh; rhh;gjpthsh; rufk;. J}j;Jf;Fo/ kw;w tpguk;: (brhj;J tpguk; jdpj; jhspy;) I hereby certify that a search has been made in Book I and in the indexes relating thereto for 5 years from 01.01.2011 to 09.03.2015 for acts and encumbrances affecting the property and that on such search the following acts and encumbrances appear / no encumbrance appears.
Sl.
No. Description of Property (Survey No. & Area) DCE & DOR Nature & Value Name of Executants (E) / Claimants (C) Vol. No. /P.No. Document No. & Year 1 kD brhj;J 12/08/11 12/08/11 Deposit of Title Deeds if loan is repayable on demand Rs.141658 (E) fdfn$hjp B (C) brd;l;uy; gh';f; Mg; ,e;jpah 628/2015 Mtz tptuk;: chpik itg;g[ Mtzk; Kd; gjpt[ 1. 1027-2004 No.1 Joint Sub Registrar, Tuticorin Note: Number of Entries:
I also certify that save the aforesaid acts & encumbrances no other act & encumbrances affecting the said property have been found.
Description of Properties Item No. Survey No. Khata No. House No. Site No. Extent/Areas of land building Location Sub District / Village / Municipality etc., 1 Land to an extent of 3219.5 sq.ft., ie., 7.39 cents in Survey No.148/1 at Sankaraperi Village bearing Plot No.77 Land to an extent of 3219.5 sq.ft., i.e., 7.39 cents in Survey No.148/1 at Sankaraperi Village bearing Plot No.77 Tuticorin Joint No.1 Sub Registration Saragam Sankaraperi Village Tuticorin Taluk Tuticorin Registration District.
Bounded:-
On the North by : Velammal land On the East by : 30 feet breadth North South common road On the South by: Survey No.147/1B, 148/3 land On the West by: Plot No.75, belonging to Manilal Gandhi Measuring:-
East West on the North 71 feet on the South 66 feet. North South on the West 40 feet on the East 54 feet.
Totalling to and extent of 3219.5 sq.ft., i.e., 7.39 cents of land with Godown bearing Door No.4/43 E at Om Santhi Nagar with fixures and fittings thereon.
Signed/-
No.1 Joint Sub Registrar Tuticorin.
19. Thus, from the above documents, it is abundantly clear that the entire loan amount was not discharged by the borrower, as claimed by the petitioner, and only on the request of the borrower, to clear the mortgage of the properties offered as security, by the other guarantors, the bank has released the documents, pertaining to their property alone. Further, there is an inadvertent mistake committed by Mr.Arumugasamy, Senior Manager, Central Bank of India. Merely because, there was a mistake committed by the Senior Manager, Central Bank of India, in affixing his signature in the document dated 21.10.2013 registered on the file of Sub Registrar Office, Thoothukudi, it cannot be contended that the entire loan amount has been discharged. When the borrower has been continuously writing letters to the bank offering to pay the dues, to the tune of 15 Lakhs, as One Time Settlement Scheme, which the bank did not agree, the contention of the petitioner that the entire amount has been discharged is incorrect. There is absolutely no material to substantiate the contentions of the petitioner.
20. As rightly contended by the learned counsel for the Bank, the borrower has credited Rs.10 Lakhs and thereafter, no payment has been made by the borrower. If the borrower has discharged the loan amount, there would be entries in the bank accounts and correspondingly, in the pass book, maintained by the borrower. The Borrower himself has acknowledged the debt in various letters extracted supra. There is absolutely no bonafide in the claim of the petitioner, who has offered her property as security. Yet another factor to be taken note of is the conduct of the borrower, who has entered appearance in this writ petition and remained as a silent spectator.
21. On the facts and circumstances of the case, it could be deduced that the borrower has played dilly dally tactics with the guarantor/petitioner, by misrepresenting to the petitioner that the entire loan amount has been discharged, which facts is not true and solely on the basis of the document, registered on the file of the Sub-Registrar. Writ Petition has been filed. In the light of the above, we deem it fit to state that in future, bank shall be move cautious in releasing any document.
22. In the light of the discussion, there is no merit in the writ petition, warranting interference. Writ Petition is dismissed. It is open to the respondent bank, Central bank of India, Fairlight, Thoothukudi District, to proceed in accordance with law. No costs. Consequently, connected miscellaneous petitions are also dismissed.
To
1.The Authorised Officer, Central Bank of India, Regional Office, Raja Muthaiah Mandram, 1st Floor, Dr.Ambedkar Road, Madurai.
2.The Branch Manager, Central Bank of India, Chidambaram Nagar Branch, 54, Beach Road, Fairlight, Thoothukudi, Thoothukudi District.
3.The Superintendent of Police, Thoothukudi District..