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"8. Therefore, as per the guidelines issued, the grant of benefit of OTS Scheme cannot be prayed as a matter of right and the same is subject to fulfilling NC: 2024:KHC:46447 the eligibility criteria mentioned in the scheme. The defaulters who are ineligible under the OTS Scheme are mentioned in Clause 2, reproduced hereinabove. A wilful defaulter in repayment of loan and a person who has not paid even a single instalment after taking the loan and will not be able to pay the loan will be considered in the category of "defaulter" and shall not be eligible for grant of benefit under the OTS Scheme. Similarly, a person whose account is declared as "NPA" shall also not be eligible. As per the guidelines, the Bank is required to constitute a Settlement Advisory Committee for the purpose of examining the applications received and thereafter the said Committee has to take a decision after considering whether a defaulter is entitled to the benefit of OTS or not after considering the eligibility as per the OTS Scheme. While making recommendations, the Settlement Advisory Committee has to consider whether efforts have been made to recover the loan amount and the possibility of recovery has been minimised, meaning thereby if there is possibility of recovery of the amount, either by initiating appropriate proceedings or by auctioning the property mortgaged and/or the properties given as a security either by the borrower and/or by guarantor, the application submitted by the borrower for grant of benefit under the OTS Scheme can be rejected.

14. 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 NC: 2024:KHC:46447 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."

4. The principles laid down by the Apex Court in the aforementioned judgment, followed by the Division Bench, bind this Court. The possession notice issued by the respondent/Bank falls squarely within the domain of Section 17 of the SARFAESI Act. Consequently, the petitioner should not have approached the writ Court to challenge the impugned order.

5. The petitioner's grievance in the captioned petition is that the petitioner's OTS application is rejected by impugned endorsements, which are arbitrary and the respondent-authorities have not adverted to the bonafide offer made by the petitioner. This Court has given its anxious consideration to the grounds urged in the petition. Under OTS scheme, the petitioner-borrower cannot dictate the terms of settlement. The Hon'ble Apex Court in the case of Bijnor Urban Cooperative Bank Limited, Bijnor and Others vs. Meenal Agarwal and Others (2021) SCC Online SC 1255) has held that no borrower, as a matter of right, can claim the benefit of OTS scheme and no writ of mandamus can be issued by the Courts in exercise of powers under Article 226 of the Constitution of India directing the financial institution/bank to positively grant a benefit of OTS to a borrower. The grant of benefit of OTS Scheme is subject to the eligibility criteria and the guidelines issued from time to time.