Punjab-Haryana High Court
Ranjit Singh vs Vijay Kumar Thapa & Another on 23 November, 2009
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
COCP No.1805 of 2008(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
COCP No.1805 of 2008(O&M)
Date of decision: 23.11.2009
Ranjit Singh ......Petitioner(s)
Versus
Vijay Kumar Thapa & another ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. R.K.Verma, Advocate for the petitioner.
Mr. O.P. Narang, Advocate for respondent No.1.
Rakesh Kumar Garg, J.
CM No.21066-CII of 2008 Application is allowed subject to all just exceptions. COCP No.1805 of 2008 This judgment of mine shall dispose of COCP Nos.1805 of 2008 and 1738 of 2008 as both the petitions have been filed on identical facts. However, for the sake of convenience facts are taken from COCP No.1805 of 2008.
As per the averments made in this petition, the petitioner secured a loan for an amount of Rs.4,00,000/- in the year 2000 for construction of his house in dispute against equitable mortgage created in favour of LIC Housing Finance Limited by deposit of title deeds etc. The petitioner defaulted in making the payment of instalments of loan and the respondent-Company recalled the entire loan on 23.4.2004 and thereafter, issued the notice under Sections 13(2) and 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( for short the "Act"). The petitioner filed CWP No.3242 of 2005 COCP No.1805 of 2008(O&M) 2 challenging the aforesaid notice on various grounds. This Court, vide order dated 28.2.2005, directed the parties to maintain status quo regarding the possession of the mortgaged property as it existed on the date of the order. During the pendency of the aforesaid writ petition, vide order dated 16.9.2005 this Court passed the following order:
"List the application for disposal on 3.10.2005. In the meanwhile, we direct that interim order, dated 28.2.2005, shall continue to be in operation, subject to petitioner's depositing with respondent No.2 all the equated monthly installments at the rate of Rs.7786/- for the period from May, 2001 to 30.9.2005. It is clarified that if the said amount is not paid, the interim order shall stand vacated and the said respondent shall be free to take further proceedings for the recovery of the said amount."
The writ petition was disposed of by this Court vide judgment dated 15.12.2005 which reads as follows:
"The issues raised in this writ petition stand concluded by the decision of this Court, delivered on 8.12.2005, in CWP No.2550 of 2005-M/s Kalyani Sales Company and another v. Union of India. Consequently, the writ petition is disposed of in terms thereof.
However, we direct that in case the petitioner chooses to avail of the statutory remedy, in view of the pendency of the present writ petition, the period of limitation, as prescribed in Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, shall commence from today. COCP No.1805 of 2008(O&M) 3 At the same time, we may clarify that this order shall not be construed as an expression of opinion on the merits of the appeal, if so preferred by the petitioner. The same shall be considered on its own merits. We further direct that if the petitioner has complied with the terms of the interim order, passed in this petition, the same shall continue till the prayer for interim relief is considered and decided by the Tribunal.
Dasti."
Thereafter, the petitioner had filed a statutory appeal before the Debt Recovery Tribunal which came up for hearing on 30.1.2006 and after hearing the appeal, the learned Tribunal ordered to continue the interim order of protection granted by this Court till the next date. It is the further case of the petitioner that he further deposited a sum of Rs.2,00,000/- on 23.7.2007 with the respondent along with the representation that the applicant wants to settle the account in respect of the loan by making the full and final payment if the penal interest as well as the unnecessary expenses added in the account are deducted from the loan account.
According to the petitioner in spite of the fact that the stay order granted by the Tribunal was in operation yet the respondent issued notices under Sections 13(2) and 13(4) read with Rule 8 and 9 of the Security Interest (Enforcement) Rules 2002, and fixed the auction of the house in dispute on 24.7.2007 by calling tenders. However, the aforesaid auction was stayed by the Tribunal. The respondent filed an affidavit before the Tribunal on 15.3.2008 to the effect that the petitioner did not deposit the full amount calculated as per orders but had deposited only Rs.3,77,600/- on 3.10.2005 which was deficient. Since the petitioner did COCP No.1805 of 2008(O&M) 4 not deposit the full amount and as such the interim order stood vacated. This fact was noticed by the Tribunal vide its order dated 17.4.2008. The stand of the petitioner before the Tribunal was that the petitioner had paid the full and correct amount as per the orders of the Court. However, it is not in dispute that vide order dated 24.7.2008, the Tribunal restrained the respondent-Company from going ahead with the auction of the property in question till further orders.
The grievance of the petitioner in this contempt petition is that the action of the respondent-Company by issuing notice under Section 13 (2) and Section 13(4) of the Act vide Annexures P-3 and P-7 are contemptuous because the aforesaid notices were issued by the respondent despite the fact that the stay orders granted by this Court as well as the Tribunal on 30.1.2006 were in operation and the same were not vacated. The petitioner has also raised the grievance that the respondent has filed a false affidavit before the Tribunal in spite of the fact that the petitioner paid an amount of Rs.6,10,563/- whereas he had received a loan of Rs.4,00,000/- only and thus, respondent No.1 is guilty of committing contempt and is liable to be punished.
In response to the show cause notice issued by this Court, reply by way affidavit of Vinay Kumar Thapa, previously posted as Area Manager/Authorised Officer of LIC Housing Finance Limited, Chandigarh was filed wherein it was submitted that in view of the order dated 16.9.2005 the petitioner was required to deposit an amount of Rs.4,10,538/- i.e. at the rate of Rs.7746/- for 53 months i.e. May, 2001 to September, 2005 whereas he deposited only an amount of Rs.3,77,600/- on 3.10.2005 and thus, an amount of Rs.32,938/- was deposited less and as per the aforesaid order, the interim order passed by this Court stood vacated and the respondent-Company was free to proceed further to recover its dues in COCP No.1805 of 2008(O&M) 5 accordance with law. It has been further submitted in this reply that the case before the Tribunal is still pending and there is no finding recorded against respondent No.1 to state that affidavit dated 15.3.2008 filed by respondent No.1 before the Tribunal was incorrect/false. It has been further stated that the petitioner has failed to clear his dues in spite of many opportunities given and a sum of Rs.4,12,334.35 paise as per Closure statement and other charges were still payable to the respondent- Company. It has been also stated that the present contempt petition has been filed by the petitioner so as to create the pressure upon respondent No.1 for getting undue benefit of remission and waiver in the dues payable by the petitioner to the Company. A further defence has been taken that the status quo order passed by this Court and the Tribunal was in respect of the possession of the property in question and the same has not been disturbed till date, as the respondent-Company has not taken physical possession of the property and the petitioner has not been dispossessed from the mortgaged property and therefore, the present petition is liable to be dismissed.
I have heard learned counsel for the parties.
From the perusal of the order dated 28.2.2005 and the subsequent orders passed by this Court in CWP No.3242 of 2005, it is crystal clear that the status quo regarding the possession of the property in dispute was ordered. It is not in dispute that till date the petitioner has not been dispossessed. Moreover, whether the petitioner has made the payment of instalments as per the interim order passed by this Court on 16.9.2005 or not, is a disputed question of fact and the determination of this question is still pending before the Tribunal. Moreover, the interim orders dated 28.2.2005 and 16.9.2005 passed by this Court had merged into order dated 15.12.2005 whereby the writ petition was disposed of COCP No.1805 of 2008(O&M) 6 giving the protection to the petitioner of the interim order till his prayer for interim relief was considered and decided by the Tribunal.
Admittedly, the Tribunal has passed the order of stay in favour of the petitioner vide order dated 24.7.2008 whereas the present contempt petition has been filed after passing of the aforesaid order on 1.10.2008. It is not the case of the petitioner that the respondent has violated the aforesaid order dated 24.7.2008. No reasons are forthcoming on behalf of the petitioner for not filing the contempt petition of the alleged violation by the respondent on the date of issuance of Annexures P-3 and P-4. Moreover, the grievance in this regard was raised by the petitioner before the Tribunal and the Tribunal had stayed the auction sale vide order dated 30.7.2008 and thus, the grievance raised by the petitioner in this regard was redressed and he never raised his grievance in this regard till he filed the contempt petition on 1.10.2008.
Thus, keeping in view all the aforesaid facts of the case, I am not inclined to proceed further in these contempt petitions any further as it cannot be held that there was any wilful disobedience on the part of the respondent.
Rule discharged.
November 23, 2009 (RAKESH KUMAR GARG) ps JUDGE COCP No.1805 of 2008(O&M) 7 COCP No.1805 of 2008(O&M) 8