Bombay High Court
Sushaam Suresh Shewale vs State Of Maharashtra Thr Tahasildar And ... on 8 February, 2022
Author: Madhav J. Jamdar
Bench: G.S. Patel, Madhav J. Jamdar
905-ASWPST-878-2022.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 878 OF 2022
Sushaam Suresh Shewale ...Petitioner
Versus
State of Maharashtra through Tahasildar & Ors ...Respondents
Mr Niket Rasal, for the Petitioner.
Mr KS Thorat, AGP, for Respondents Nos. 1 to 4-State.
Mr Pratap Patil, for Respondents Nos. 5-bank.
CORAM G.S. Patel &
Madhav J. Jamdar, JJ.
DATED: 8th February 2022
PC:-
1. The matter is listed today for dismissal since the Advocate for the Petitioner was not available on the last occasion. He points out that he has joined online but he cannot be heard. He is online today and has no objection to the matter being taken up.
2. By consent, we take up the Petition for hearing and final disposal.
SHEPHALI SANJAY MORMARE 3. In our view this Petition is thoroughly misconceived. It assails Digitally signed by SHEPHALI SANJAY MORMARE the execution at the instance of the 4th Respondent, the Recovery Date: 2022.02.08 17:24:34 +0530 Officer of the Baramati Cooperative Bank Limited, Baramati, Pune Page 1 of 7 8th February 2022 905-ASWPST-878-2022.DOC ("the BCBL") of a recovery of outstanding amounts admittedly payable by the Petitioner against loans that the Petitioner and his family took from that bank. Prayer clause (a) of the Petition seeks a declaration that the execution by the Respondent against the Petitioner is null and void. Prayer clause (b) assails orders of 3rd March 2020 by the District Magistrate, Pune under Section 156 of the Maharashtra Cooperative Societies Act ("MCS Act") read with Rule 107 and possession notices of the Tehsildar or Circle Officer for taking possession of the property mortgaged by the Petitioner as security for the repayment of these loan.
4. On the face of it, a plain reading of the prayers indicates that the reliefs sought by the Petitioner cannot be possibly be granted. There is no manner of doubt that from 2016, the Petitioner and its family took as many as eight separate loans in their names and in the names of their family firms from the BCBL to the tune of Rs.6.5 crores. With this loan the Petitioner, his family and their firms started a business of polyhouse farming on land in Taluka Haveli, District Pune.
5. Admittedly the Petitioner, his family and firms defaulted in repayment of these loans. In 2018, the BCBL initiated recovery proceedings under Section 101 of the MCS Act.
6. There is also no doubt that the repayment of the loans was secured by a mortgage over the immovable properties.
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7. The Petitioner appeared in the execution proceedings. He asked that the loan accounts "be revived", meaning that instead of recovery, the Petitioner/his family/his firms be permitted to continue to service the loans.
8. On 20th February 2019, eight separate orders were passed allowing the recovery proceedings at the instance of the BCBL. This was followed by a notice of 13th March 2019 by the bank in regard to possession.
9. According to the Petitioner, he has not received copies of the orders of 20th February 2019. It is not explained in the Petition what the Petitioner has done since that date to obtain copies of these orders.
10. Curiously in March 2019, the Petitioner and other borrowers admittedly executed and signed certain documents. These apparently sought revival of the loan accounts.
11. Then came the order of 3rd March 2020 by the District Magistrate, Pune under Section 156 of the MCS Act authorizing the Tehsildar to take possession of the mortgaged properties.
12. By different orders dated 27th December 2021, the Tehsildar informed the Petitioner and other borrowers that pursuant to the District Magistrate's order, the Circle Officer, Hadapsar would proceed to take possession of the mortgaged properties on 11th January 2022 at 11.00 am.
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13. The mortgaged land in question of which possession is sought is at Village Andhalgaon, Taluka Shirur, District Pune, admeasuring about 20 ares. There is a borewell on that land.
14. The Petitioner claims to have made inquiries with the bank for a One Time Settlement ("OTS") but the bank has not responded. This the Petitioner's complaint.
15. The only submissions before us are that the Petitioner has standing crops on the land. The indebtedness to the bank is not disputed. The defaults are not disputed. The OTS proposal itself indicates the indebtedness by the Petitioner and other borrowers to the bank.
16. We see no legal infirmity in the amount by the Respondent. There is no right that vests to the Petitioner to demand an OTS. No order can be passed against lender bank to accept some OTS proposed by the Petitioners or even to consider an OTS proposal.
17. In The Bijnor Urban Cooperative Bank Ltd v Meenal Agarwal & Ors,1 the Supreme Court recently observed:
9. Even otherwise, as observed hereinabove, no borrower can, as a matter of right, pray for grant of benefit of One Time Settlement Scheme. In a given case, it may happen that a person would borrow a huge amount, for example Rs. 100 crores. After availing the loan, he may deliberately not pay any amount towards installments, 1 See the Supreme Court decision in The Bijnor Urban Cooperative Bank Ltd v Meenal Agarwal & Ors, 2021 SCC OnLine SC 1255 Page 4 of 7 8th February 2022 905-ASWPST-878-2022.DOC though able to make the payment. He would wait for the OTS Scheme and then pray for grant of benefit under the OTS Scheme under which, always a lesser amount than the amount due and payable under the loan account will have to be paid. This, despite there being all possibility for recovery of the entire loan amount which can be realised by selling the mortgaged/secured properties. If it is held that the borrower can still, as a matter of right, pray for benefit under the OTS Scheme, in that case, it would be giving a premium to a dishonest borrower, who, despite the fact that he is able to make the payment and the fact that the bank is able to recover the entire loan amount even by selling the mortgaged/secured properties, either from the borrower and/or guarantor. This is because under the OTS Scheme a debtor has to pay a lesser amount than the actual amount due and payable under the loan account. Such cannot be the intention of the bank while offering OTS Scheme and that cannot be purpose of the Scheme which may encourage such a dishonesty.
10. If a prayer is entertained on the part of the defaulting unit/person to compel or direct the financial corporation/bank to enter into a one-time settlement on the terms proposed by it/him, then every defaulting unit/person which/who is capable of paying its/his dues as per the terms of the agreement entered into by it/him would like to get one time settlement in its/his favour.
Who would not like to get his liability reduced and pay lesser amount than the amount he/she is liable to pay under the loan account? In the present case, it is noted that the original writ petitioner and her husband are making the payments regularly in two other loan accounts and those accounts are regularised. Meaning thereby, they have the capacity to make the payment even with respect to the present loan account and despite the said fact, not a single amount/installment has been paid in the present loan Page 5 of 7 8th February 2022 905-ASWPST-878-2022.DOC account for which original petitioner is praying for the benefit under the OTS Scheme.
11. The sum and substance of the aforesaid discussion would be that no writ of mandamus can be issued by the High Court in exercise of powers under Article 226 of the Constitution of India, directing a financial institution/bank to positively grant the benefit of OTS to a borrower. The grant of benefit under the OTS is always subject to the eligibility criteria mentioned under the OTS Scheme and the guidelines issued from time to time. If the bank/financial institution is of the opinion that the loanee has the capacity to make the payment and/or that the bank/financial institution is able to recover the entire loan amount even by auctioning the mortgaged property/secured property, either from the loanee and/or guarantor, the bank would be justified in refusing to grant the benefit under the OTS Scheme. Ultimately, such a decision should be left to the commercial wisdom of the bank whose amount is involved and it is always to be presumed that the financial institution/bank shall take a prudent decision whether to grant the benefit or not under the OTS Scheme, having regard to the public interest involved and having regard to the factors which are narrated hereinabove.
(Emphasis added)
18. Even if there is no direct prayer for a mandamus to the Bank to accept a OTS, the real submission advanced before us is that the Petitioner will make a OTS by registered post and, until he does, and it is either accepted or rejected, there should be a stay on execution of the recovery certificate. This is simply a different way of saying the very thing the Supreme Court deprecated in Bijnor Urban Cooperative Bank.
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19. No legal right of the Petitioner is shown to have been infringed. No legal duty is shown to have been owed to the Petitioner by the authorities but not performed.
20. At the end, we cannot lose sight of the fact that the Petitioners have admittedly borrowed monies from the bank. The amount is not small. It simply cannot be that when it comes to repayment all kinds of arguments and pleas are taken up only in order to evade the responsibility of repayment.
21. We reject the Petition.
22. In the facts and circumstances we make no order as to costs.
23. The previous orders of stay are vacated forthwith.
24. All concerned will act on production of a digitally signed copy of this order.
(Madhav J. Jamdar, J) (G. S. Patel, J)
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