Bombay High Court
Kailash Swami vs Central Bank Of India And Anr on 18 April, 2023
Author: Neela Gokhale
Bench: G.S. Patel, Neela Gokhale
P2-ASWP-4513-2023.DOC
Shivgan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4513 OF 2023
Kailash Swami ...Petitioner
Versus
Central Bank of India & Ors ...Respondents
Ms Priyanka Kothari, i/b Vivek V Phadke, for the Petitioner.
Mr RJ Singh, for Respondent No.1.
CORAM: G.S. Patel &
Neela Gokhale, JJ.
DATED: 18th April 2023 PC:-
1. Mentioned not on board. Taken on board.
2. The Petitioner has given notice. This is not a case where the Writ Petitioner seeks a mandamus directing the 1st Respondent Bank to accept an One Time Settlement ("OTS"). This is a case where the 1st Respondent bank, in circumstances that we will advert to in detail at an appropriate stage, offered an OTS proposal to the Petitioner. The Petitioner then accepted that OTS proposal and paid the entire amount of the OTS, a sum of Rs 40 Lakhs. Of this Rs 8 Lakhs was retained and adjusted towards the NPA account in question. The balance seems to have been returned. The Petitioner Page 1 of 3 18th April 2023 ::: Uploaded on - 19/04/2023 ::: Downloaded on - 19/04/2023 18:01:28 ::: P2-ASWP-4513-2023.DOC received a return of an amount of Rs 32 Lakhs but states that as part of the OTS proposal the Petitioner will undoubtedly pay the amount and is ready to deposit it or make payment of it immediately. It seems that instead of accepting the OTS proposal and the payment, the 1st Respondent bank then required the Petitioner to get dismissed an application made by the auction purchaser at a previous auction. That application was dismissed for default. When this was reported to the 1st Respondent Bank by the Petitioner, according the Petitioner the 1st Respondent Bank said that the OTS proposal could not be accepted and therefore the balance Rs 32 Lakhs had been returned.
3. The immediate cause for concern is that the security offered to the 1st Respondent Bank namely, a residential Flat No. 41, 4th Floor, Building No. 43-B, Madhuban, Vrindavan CHSL, Vrindavan Complex, Thane (West) has been put to auction. The confirmation of sale of this flat was scheduled for today but has been adjourned to tomorrow.
4. We will need to give the 1st Respondent Bank time to respond to the Writ Petition. But this obviously means that the status quo must be maintained and cannot be altered so as to render the Petition infructuous. There is to be no confirmation of sale of the flat in question until the next date. The auction sale took place on 17th March 2023. No sale is to be confirmed in favour of any auction purchaser until further orders of the Court. Equally the rights of the auction purchaser are to be protected and the auction purchaser at the 17th March 2023 auction will be given additional time and the Page 2 of 3 18th April 2023 ::: Uploaded on - 19/04/2023 ::: Downloaded on - 19/04/2023 18:01:28 ::: P2-ASWP-4513-2023.DOC earnest money is not to be forfeited until further orders of this Court.
5. An Affidavit in Reply by the 1st Respondent is permitted by 26th April 2023. A Rejoinder is permitted by 4th May 2023. There is no urgency on the part of the 1st Respondent Bank. These are matters that have been pending for a long time. They can wait a few days. List the Petition peremptorily on 8th June 2023 high on board.
All contentions are left open.
6. We make this order because this is not a case where the Petitioner wants to pay or undertakes or promises to pay, but one where the 1st Respondent offered an OTS and the Petitioner acted on it and actually made payment. The unilateral reversal in course cannot prejudice the Petitioner who has demonstrated bona fides and has acted to his prejudice on the representation made by the 1st Respondent.
(Neela Gokhale, J) (G. S. Patel, J) Page 3 of 3 18th April 2023 ::: Uploaded on - 19/04/2023 ::: Downloaded on - 19/04/2023 18:01:28 :::