9911796707
TMI Blog2008 (3) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of 8 per cent per annum, which is prevailing rate of interest on the FDR investment. - SPECIAL CIVIL APPLICATION NO. 22089 WITH 22093 OF 2007 - - - Dated:- 18-3-2008 - JAYANT PATEL, J. Jal Soli Unwala for the Petitioner Ms. Nalini S. Lodha for the Respondent JUDGMENT 1. Rule. Ms. Nalini S. Lodha learned counsel waives service of notice of rule for respondent Nos. 1 and 2. 2. With the consent of the learned counsel appearing for both the sides, the matter is finally heard today. 3. The short facts of the case appear to be that the petitioners in the respective petitions, who are husband and wife, had taken housing loan and as the loan was not paid, the proceedings were initiated before the Debts Recovery Tribunal ('DRT'), and ultimately, thereafter the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('the Securitisation Act') were initiated for disposal of the property. It appears that when the process of disposal of the property was undertaken, the petitioners had challenged the action of the bank, by preferring writ petition and the said writ petition was dismissed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion may not be issued by this court to refund the amount to the petitioner. It is also submitted that after filing of the petition, respondent-bank has moved appropriate application before the DRT, in the proceedings of O.A. No. 110 of 2004, preferred against the company in liquidation for attachment of the aforesaid amount, but as the present petition is pending, the matter has remained as it is before the DRT. Learned counsel for the respondent-bank has also submitted that as such if the matter arise for challenging action of the bank under the Securitisation Act, the petitioner had the remedy of approaching before the DRT, and if the petitioner is relegated for such purpose, the very DRT, is considering the proceedings of O.A. No. 110 of 2004, preferred against the company and also the petitioner, therefore, this court may not exercise the power under article 226 of the Constitution, for giving direction to the respondent-bank to return the amount. 7. Ms. Lodha, learned counsel for the respondent-bank, lastly submitted that in the event, this court is inclined to issue direction, the rights may be kept open of the respondent-bank to seek appropriate orders from the DRT, as m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er different transactions by the petitioner with the bank, and the security interest created over the property, which is sold by the bank is on account of such loan transactions for housing loan only. ( c )The bank has exercised the power under the Securitisation Act. ( d )The bank has already appropriated of the outstanding amount qua security interest created from the housing loan transaction. ( e )There is surplus amount of Rs. 16,75,890.75 ps. with the bank, as the secured creditor after realisation of money, and after recovery of all dues pertaining to housing loan transaction of the security interest created thereon. 12. In view of the aforesaid factual scenario, the provisions of section 13(7} of the Act, which is relevant for the purpose of the present petition, is to be considered ; the same reads as under : "13. (7) Where any action has been taken against a borrower under the provisions of sub-section (4), all costs, charges and expenses which, in the opinion of the secured creditor, have been properly incurred by him or any expenses incidental thereto, shall be recoverable from the borrower and the money which is received by the secured creditor shall, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the power, such power can be exercised within four corners of conferment of such power. Any action beyond the scope of conferment of such power would be without jurisdiction or without any competence or authority. It further deserves to be recorded that when any power is conferred, such power can be read for taking any action, which may be incidentally required to be taken for exercise of such power, but it cannot be co-related or permitted to be transgressed beyond the scope and ambit of the very loan transaction, for which the security interest was created. 14. Therefore, it appears that on a true construction of section 13(7), the bank can exercise the right under the contract, if it is so conferred upon it by the loan transaction or the agreement pertaining thereto through which, the security interest is created or any incidental thereto. Such use of the language "in absence of any contract to the contrary" cannot be related to altogether different contract of different loan transaction or different property altogether. 15. There are two additional circumstances, as expressly made clear by the Legislature under section 13(7) of the Act, one is that such amount is to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract Act, for different loan transaction, but such right has to be for the very loan transaction. He also relied upon the another decision of Orissa High Court in case of Alekha Sahoo v. Co-operative Bank Ltd. AIR 2004 Ori. 142 for contending that such right of lien for different loan transaction over the amount of the present loan transaction cannot be enforced by the bank. 18. Whereas as per the respondent-bank, in view of the deed of guarantee dated 19th January, 2000 and more particularly clause (8), it was contended that bank has the right of lien on all securities, now or hereafter held by the bank, and all moneys now or hereafter standing to the credit with the bank on any account or any other account. Therefore, it was submitted that the bank could exercise the right of lien. 19. It appears to the court that it is not necessary for this court, in the present petitions, to examine and conclude, as to whether under the Contract Act rights of lien could be exercised by the bank over the surplus amount of Rs. 16,75,890.75 ps. and the reason being that the bank has received custody of the money, not on account of any contractual agreement, but on account of the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the rights under the Securitisation Act, it would equally be a matter for discharging of the obligation under the Securitisation Act, and the reason being that rights of the secured creditors under the Securitisation Act, are not the rights in absolute, but by way of inbuilt mechanism under the Act, it also creates an obligation as conceived and expressly provided under the Act. In view of the observations and discussions, the right is conferred upon respondent-bank, as the secured creditor to realise money by disposal of the property, over which the security interest has created, and obligation is also by virtues of later part of section 13(7) to return the residue of the amount to the person concerned whose property is sold. Therefore, if the matter is covered for creation of the right and of obligation under the Securitisation Act, the same would prevail over any other rights created under any other law for the time being enforced. 23. Hence, so-called right of lien of the bank under the Contract Act, for different loan transaction all together, cannot be read to dilute overriding effect of section 35 of the Securitisation Act, as provided under section 35 of the Securiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
