Uttarakhand High Court
M/S Bhardwaj Enterprises Through vs The Nainital Bank Limited Through on 1 July, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 1529 of 2022
M/s Bhardwaj Enterprises through
its proprietor and another ... Petitioners
Vs.
The Nainital Bank Limited through
its authorized and Others ... Respondents
Advocates : Mr. Narendra Bali, Advocate, for the petitioners
Dr. Kartikey Hari Gupta, Advocate, for the respondents Nos. 1 to 3
Mr. Suyash Pant, Standing Counsel, for the State
Hon'ble Sharad Kumar Sharma, J.
Brief facts of the case are, that the petitioners had secured a financial assistance of Rs. 50.00 lakh, by way of a cash credit limit loan from the respondent bank, the secured creditor, as back as in 2012, and as per the schedule of its instalments which were fixed under the terms of the Agreement, the entire loan amount was supposed to be deposited by the petitioner by the end of October 2019.
2. There was admittedly a default committed by the petitioners, as a consequence thereto, the proceeding under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (in short "the SARFAESI Act") was initiated against the petitioners, resulting into issuance of notice under Section 13(2) and 13(4) of the SARFAESI Act.
3. Consequence to the aforesaid notice, and faced with the recovery proceedings, the petitioners had already 2 invoked the jurisdiction of Debt Recovery Tribunal, under Section 17 of the SARFAESI Act, by filing SA No. 107 of 2021, M/s Bhardwaj Enterprises & Others Vs. The Nainital Bank Limited.
4. The proceedings, which were drawn by the petitioners before the Debts Recovery Tribunal, was ultimately laid to rest by the judgement dated 17th June 2022. As a consequence thereto, the proceedings under Section 17, was dismissed. Instead of approaching the DRAT under Section 18 of the Act, the petitioners have preferred this writ petition, expressing their willingness to deposit the entire amount, due to be paid, subject to the condition that some easy instalments are fixed by the Court.
5. Fixation of the installments in loan transactions, is not the prerogative of the writ Court under Article 226 of the Constitution of India, as the writ Courts in the exercise of its extraordinary equitable jurisdiction, cannot barge over the terms and conditions of the loan agreement, and adorn jurisdiction in itself, which is inter se binding between the borrower and the secured creditor. But by the judicial precedents an exception has been carved out, that the instalments could be fixed by the writ Courts, subject to the consensus being extended by the secured creditor, to accept the amount due to be paid by the borrower under the conditions acceptable by both the parties.
36. Based on the instructions which have been received by the learned counsel for the respondents/bank, he has submitted that he has received the instructions, if the petitioner deposits 50% of the total amount, which is now due to be paid within a period of one month from today, in order to enable him to express his bonafides, and later on if he deposits the balance 50% amount (inclusive of the interest accruing during this intervening period) within two equally quaternary instalments, the secured creditor would have no quarrel, qua the relief sought in the writ petition.
7. In view of the aforesaid consensus which has been extended by the secured creditor, which stands accepted by the petitioners' counsel, the writ petition is being disposed of with the following terms:-
(i) The total amount, which has fallen due to be paid as of now, as a consequence of the initiation of the proceedings under Section 13(2) of the SARFAESI Act, which now stands due to be paid, as a consequence of the decision of the Debts Recovery Tribunal dated 17th June 2022, the 50% of the total amount due to be paid would be deposited by the petitioner forthwith with the bank within a period of one month from today.
(ii) The balance 50% amount, as agreed by the parties to the proceedings of the writ petition, would be deposited by the petitioners in two equally quarterly instalment 4 thereafter the payment of first instalment provided by clause (i), as above.
(iii) It is made clear that the second quarterly instalment, which has been thus directed above, to be paid by the petitioners, would be inclusive of any interest, which accrues during the intervening period.
(iv) During this intervening period, the petitioners would not deal, in any manner whatsoever with the mortgaged property, against which the loan advances were extended.
(v). In an event of default in complying with any of the above directions, the entire recovery proceedings initiated as a consequence of the proceeding held under Section 13, would be proceeded with as per law by the secured creditor.
8. It goes without saying that so far the petitioners comply with the directions given above, no coercive action would be taken against them.
9. Subject to the aforesaid observations, the writ petition stands disposed of.
(Sharad Kumar Sharma, J.) 01.07.2022 Mahinder/