Tripura High Court
Noting By Officer Or Serial Date Office ... vs Traders Engaged In The Business Of Stone ... on 20 December, 2017
Author: S. Talapatra
Bench: Chief Justice, S. Talapatra
W.P(C) No.1628 of 2017
Noting by Officer or Serial Date Office notes, reports, orders or
Advocate No Proceedings with signature
BEFORE
HON‟BLE THE CHIEF JUSTICE
THE HON‟BLE MR. JUSTICE S. TALAPATRA
20.12.2017
(S. Talapatra, J)
The petitioner is the sole proprietor of M/S Maitri
Traders engaged in the business of stone chips. She
took a loan of `37,50,000/-[Rupees Thirty Seven
thousand Fifty lacs] from the State Bank of India, the
SBI in short, Agartala Branch. As a huge outstanding
accrued on the loan account of the petitioner, the bank,
hereinafter referred to as the creditor initiated a
recovery proceeding in the Debt Recovery Tribunal,
Guwahati being DRPC No.2366 for recovery of the total
amount of Rs.65,09,827.59. It appears from the
records that the Debt Recovery Tribunal in pursuance
to their judgment dated 08.03.2017 delivered in the
renumbered O.A. No.414 dated 08.03.2017, issued the
recovery certificate in favour of the creditor for a sum
of Rs.52,05,375.57/- against the petitioner and the
guarantors with interest @13% p.a. with quarterly rest
till realisation. While passing the said recovery
certificate, the Debt Recovery Tribunal had also
observed as under:
"The charge of the certificated amount be kept alive
on the mortgaged property being Land measuring
covered by C.S. Plot No.19883 (old) Khatian No.7317,
Mouza Agartala, Town sheet No-22, Tehsil Sadar West,
Revenue Holding No-48 and 59, Chandrapur West
Agartala situated near Rajarshi Motors, Agartala West
Tripura and standing in the name of the Defendants
No.3 arising out of the Registered Partition Deed
No.1-10775 dated 1.12.1974 and is bounded by-
East : Chittaranjan Majumder
West: Ananda Majumder
North: Road
South: Manoranjan Mazumder, described in Schedule
„B‟ annexed to the application till the amount is
realized in full, under the certificate.
The charge of the certificated amount be kept alive on
the mortgaged property being A Bhita/Tila land
measuring 2.60 Sataks out of total land measuring
3.23 Sataks covered by Dag No.487 and presently
1183, 1175, 1179, 1176, 1176/9287, Sabek 471,
480/part, Khatian No-426 of Touzi No.67, Mouza
Radha Kishore Nagar, Tahesil Khaerpur, Sub Registry
office-Sadar, Prgana- Agartala, P.S. Bodhjang Nagar,
West Tripura District under Sale Deed no- 1-2554
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W.P(C) No.1628 of 2017
Noting by Officer or Serial Date Office notes, reports, orders or
Advocate No Proceedings with signature
standing in the name of the Defendant No.4 and is
bounded by-
East : Govt. Land
West: Manik Das
North: Harimohan Das
South: Vendors Land under separate Deed, described
in Schedule „C‟ annexed to the application till the
amount is realized in full, under the certificate.
The charge of the certificated amount be kept alive on
the mortgaged property being A Bhita/Tila land
measuring 0.63 Sataks out of total land measuring
0.63 Sataks out of total land measuring 3.23 Sataks
covered by Dag No.487 and currently 1183, 1175,
1179, 1176, 1176/9287, Sabek 471, 480/part, Khatian
No-426 of Touzi No.67, Mouza Radha Kishore Nagar,
Tahesil Khayerpur, Sub Registry office-Sadar,
Pargana- Agartala, P.S. Bodhjang Nagar, West Tripura
District under Sale Deed no-1-2554 standing in the
name of the Defendant No.4 and is bounded by-
East : Govt. Land
West: Manik Das
North: Vendors Land under separate Deed
South: Manoranjan Seal, described in Schedule „D‟
annexed to the application till the amount is realized
in full, under the certificate"
Pursuant to the said certificate, notice was issued
under Section 13(2) of the
Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, in short
the SARFAESI Act, for vacating the secured assets, the
landed property, description of which is provided in the
said notice. It was clearly observed in the said notice
that unless the determined amount is paid, the further
action will follow in terms of the SARFAESI Act. But the
petitioner did not deposit any amount. As a result, by a
proceeding drawn under Section 14(1)(1) of the Act,
the physical possession of the secured assets as
described below was taken over by the authorised
officer of the bank on preparing the due certificate:
"Land & building situated at Chandrapur, Near
Rajarshi Motors, P.O. Reshambagan, Agartala, Dist-
West Tripura, vide Deed No.10775 dated 10.12.1974,
Khatian No.34700, Dag No.1172/2184, Mouza-
Agartala, Sheet No.22, Area-1930 sq.ft. in the name of
Sri Sunil Chandra Mazumder."
Having faced with that situation, the petitioner has
approached this court by filing this writ petition and
urged this court not to give effect of the letter dated
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W.P(C) No.1628 of 2017
Noting by Officer or Serial Date Office notes, reports, orders or
Advocate No Proceedings with signature
12.09.2017, whereby one of the guarantors were given
proposal for One Time Settlement [OTS in short] of
non-performing assets in terms of the scheme as
framed by the SBI. The petitioner's due to the bank-
creditor was declared eligible for settlement under the
said scheme on the following terms and conditions:
"(i) Ledger outstanding (excluding accrued interest
from the date of NPA) on 31.03.2017 : Rs.35,47,866/-.
(ii) Amount of OTS: Rs.27,11,570/- [Amount
recovered after 31.03.2017 will be adjusted against
the OTS amount].
(iii) Application for OTS will be processed only on
deposit of minimum 5% (Rs.177393.0) of the Ledger
outstanding as on 31.03.2017.
(iv) 20% (Rs.542314.0) of the OTS amount will have
to be deposited by you as upfront money within thirty
days from the date of sanction of OTS. This would
include the amount deposited by you alongwith the
application.
(v) The balance amount can be paid within 6
months from the date of sanction of OTS (the validity
period) together with interest @MCLR+2%, failing
which the OTS sanction will be rendered infructuous.
(vi) However, no interest will be charged, if the entire
OTS amount is paid within 3 months from the date of
sanction.
(vii) You will be eligible for an additional incentive of
10% discount on the OTS amount, on making
payment of the entire OTS amount on or before
31.12.2017."
The noticee, the guarantor, namely Sunil Ch.
Majumder was asked to communicate his willingness to
settle the dues by payment of 5% of the outstanding
as on 31.03.2017. It has been averred by the petitioner
that as she did not have the money to deposit 5% of
the outstanding as stated, no further progress could be
made under the OTS. The petitioner has submitted
further that the recovery certificate is outcome of the
proceeding in the Debt Recovery Tribunal. The
respondents however, have clearly stated that the
petitioner was given ample opportunities to liquidate the outstanding. Even one of the guarantors who approached the bank was offered the OTS proposal under the designated scheme so that the drastic action Page 3 of 5 W.P(C) No.1628 of 2017 Noting by Officer or Serial Date Office notes, reports, orders or Advocate No Proceedings with signature of taking the physical possession of the land for purpose of auction for recovering the amount due on account of the petitioner could be avoided. But neither the petitioner nor the said guarantor came forward with any positive assurance by depositing 5% of the outstanding dues.
Mr. Somik Deb, learned counsel appearing for the petitioner has submitted that the petitioner is ready to pay 50% of the amount that has been offered by the letter dated 12.09.2017. For OTS, the amount was brought down to `27,11,570/- with a further clause that the amount recovered after 31.03.2017 will also be adjusted against the OTS amount. It is evident from the said letter dated 12.09.2017 that additional 10% discount on the OTS amount will be assured on making the payment of the entire OTS amount on or before 31.12.2017. The mode of payment has been clearly mentioned in the proposal made by the letter dated 12.09.2017. It is clear from the averments made in the writ petition by the petitioner that they did not accept the proposal by depositing the minimum 5% of the outstanding as on 31.03.2017.
The respondents however has clearly submitted that before taking the physical possession of the land on 12.12.2017 in terms of the certificate issued by the Debt Recovery Tribunal, the said offer of OTS was advanced but the petitioner or the guarantor as named above failed to take advantage of the said OTS. Finally, the authorised officer of the creditor-bank has taken over the physical possession following the due process of law.
Mr. A.L. Saha, learned counsel appearing for the respondents-bank has vehemently opposed the submission made by Mr. Deb, learned counsel appearing for the petitioner and stated that since the secured assets have been taken into physical Page 4 of 5 W.P(C) No.1628 of 2017 Noting by Officer or Serial Date Office notes, reports, orders or Advocate No Proceedings with signature possession by the bank in terms of the recovery certificate, the petitioner may not be given any further opportunity by stalling the process of recovery of the outstanding amount by auctioning out the secured assets.
We have perused all the records as produced with the writ petition as well as by the creditor-bank. Since Mr. Deb, learned counsel appearing for the petitioner has categorically submitted that the petitioner is ready to deposit 50% of the OTS amount, this court is of the view that since the OTS is a time bound programme this court cannot extend the OTS period. However, that aspect of the matter may later on be considered by us. Since in the circumstances of extreme urgency, the petitioner has approached this court, this court is of the view that if the petitioner deposits 50% of the sum of `35,47,866/- [the ledger outstanding as on 31.03.2017] on or before 08.01.2018, the bank authority, subject to final decision in this petition, shall hand over the possession back to the owner of the land. If no such amount is deposited, the respondents- bank may continue with their recovery proceeding in accordance with law. Further, if 50% of the amount as stated above is deposited by the petitioner or guarantor, the bank-respondents shall inform the court whether they can settle the due in terms of the OTS as proposed by the letter dated 12.09.2017, Annexure-3 to the writ petition, on the next date.
List this matter on 9th January, 2018.
JUDGE CHIEF JUSTICE
Sujay
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