Babu Singh And Another vs Kurmanchal Nagar Sahkari Bank Ltd. And Another

Sharad Kumar Sharma, J

Few facts, which are apparent in the writ petition are, that on 26.07.2016, the petitioner had applied for a financial assistance of a sum of Rs. 12.00 lakh from the respondents/bank. As per the terms of the loan agreement, the said amount was payable by the petitioner in 180 EMIs. But, since there was admittedly a default committed by the petitioner, the account was declared NPA on 30.04.2018, and thereafter, since the default persisted, a Notice under Section 13(2) of the Securitization and reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "SARFAESI Act, 2002") was issued against the petitioner on 17.02.2020, and consequent to it, the possession notice under Rule 8(1) of the Rules framed under the Act was issued on 10.08.2021. Hence, the petitioner has preferred this writ petition for the following reliefs:-

"I. Issue a writ or order or direction in the nature of certiorari quashing the entire recovery proceeding of home loan initiated by respondents against the petitioners along with the impugned notice U/s 13(2) SARFASI Act, 2002, on 07.02.2020, the possession notice 26.08.2020 issued under rule 8(1) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the notice dated 10.08.2021 issued by the respondent no. 3 intimating him to take possession (as contained Annexure no. 1,2 & 4 to this writ petition).

II. Issue a writ of mandamus commanding the respondent to grant some more reasonable time the repay the loan amount and in instalment and further directed the respondent restructure his home loan account.

III. Issue a writ of mandamus commanding the respondent to decide the representation of the petitioner dated 6.09.2021.

IV. Issue any other writ order or direction which this Hon'ble Court deem fit and proper in the facts and circumstances of the case.

V. Award the cost of the petition to the petitioner."

This Court being conscious of the fact that the provisions of the SARFAESI Act, 2002, being special statute and its a self contained code, it provided its own forum and mechanism for recovery, before which, the petitioner can agitate his claim by raising all his contentions. But, the only exception, which could be carved out in exercising of inherent jurisdiction under article 226 of the Constitution of India, particularly in relation to the financial matters, its where the liability has to be discharged by the borrowers of the loan, in order to override any proceedings, which has been resorted to by the financial institution for recovery of the amount, an entertainment of the writ petition to carve out an exception, could only be subject to the condition of a consent, being extended by the respondent/bank to accommodate the petitioner.

The respondents herein, who are represented through Mr. Siddhartha Sah, Advocate, submits, that based on the instructions, which he has received from the respondents/bank, they are willing to accommodate the petitioner, subject to the condition that the petitioner deposits the entire amount, which are due to be paid by him, under the notice which was sent to him under Section 13(2) of the SARFAESI Act, 2002, within a period of six months from today. The bank is agreeable to the said offer of the petitioner, to pay the entire amount due under the proceedings of SARFAESI Act, 2002.

Since it is a consensus, which has been extended by the respondents/bank, this writ petition is being disposed of with the following terms and conditions:-

(i) The petitioner would submit an undertaking by way of an affidavit, before the respondents/bank, that he would be remitting the entire amount due to be payable by him under Section 13(2) of the SARFAESI Act, 2002, within a period of six months from today.

(ii) It is made clear, that if there is any default committed by the petitioner in remitting the entire amount; within the aforesaid period of six months, it will be open for the respondents/bank to have its recourses resorted to as permissible under the SARFAESI Act, 2002.

Subject to above observations, the writ petition stands disposed of.