Uttarakhand High Court
WPMS/586/2018 on 24 April, 2019
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
WPMS No. 586 of 2018 Hon'ble Sharad Kumar Sharma, J.
Mrs. Rangoli Purohit, Advocate for the petitioners.
Mr. D.S. Patni, Advocate for the respondents.
It is not in dispute that the petitioners happen to be the borrowers and having taken a financial assistance from the respondents bank are facing the proceedings drawn against them by issuance of notice under Section 13 (2) of the SARFAESI Act on 10th August, 2017 and consequent notice dated 06.02.2018, which has been issued by the respondents under Section 13 (4) read with Rule 8 (1) of the Rules framed under the Act.
Simultaneously, the petitioners have also argued that under the scheme floated by the respondents which is called as RINN Samadhan Scheme, it provides an opportunity of one-time settlement to the defaulter. The petitioners have filed an application before the respondents for seeking the benefit under the said scheme for consideration of the one time settlement.
Since the scheme itself has been floated by the respondents Bank and in accordance with the stand taken by the petitioners, they already applied under the same. The fact as to whether the petitioners are entitled to be benefited by the scheme or not is a question which the bank was bound to decide. Till date, no decision has been taken on the same and the same is pending consideration.
Learned counsel for the respondents had raised the preliminary objection pertaining to the maintainability of the Writ Petition in the light of the provisions contained under Section 17 of the Act.
At this stage, the argument extended by the learned counsel for the petitioners is to the effect that once the petitioners have already sought to avail the benefit under the Scheme framed by the respondents Bank, they were bound to consider the application and, thereafter, only the Bank could have proceeded to take steps for selling of the property mortgaged by the petitioners which includes the residential Flat No. CSI, Building No. C, 2nd Floor, situated at Sitara Cooperative Society Ltd..
The learned counsel for the petitioners has further submitted that in the light of the judgment rendered by this Court as reported in 2004 1 UD 359, Unique Engineering Works Vs. Union of India and others, the sale of residential accommodation is to be avoided until and unless the efforts to recover the amount from other assets of the petitioners is not exhausted.
This Writ Petition is being disposed of at this stage with the following directions :-
1. Considering the argument of the learned counsel for the petitioners to the effect that their application under RINN Samadhan Scheme is pending consideration and no decision has yet been taken on the same, the petitioners do not want to press the first relief as sought for in the Writ Petition at this stage.
2. The respondents Bank is directed to decide the application submitted by the petitioners for one-time settlement under RINN Samadhan Scheme and take a decision on the same within a period of two moths from today.
As far as the proposed sale of the residential flat of the petitioners is concerned, which has been apprehended by the petitioners and which was also protected by way of interim order dated 8th March, 2018, subject to the deposit of Rs. 3 lacs, the respondents will not make any efforts to sell the property until and unless they take decision on the application submitted by the petitioners for one time settlement under the RINN Samadhan Scheme.
Subject to the above observations, the Writ Petition stands disposed of.
(Sharad Kumar Sharma, J.) Dated 24.04.2019 Shiv