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TMI Blog2014 (4) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... has neither a contractual or statutory right to do so. It is the claim of the respondent that it cannot be said that it is unable to pay its debts and would assert that the monies due to the respondent have even been repaid to an extent of Rs. 10.00 lakh and the balance sum of money in a sum of Rs. 47.22 lakh is sought to be repaid - In the alternative it is suggested that if the petitioner insists on an immediate and total repayment of the money with interest at least at the rate of 10% per annum, it would be possible if the apartment is permitted to be sold to a third party. The proceeds from such sale could not only satisfy the dues of the Bank, it would also satisfy the dues payable to the petitioner. This would however, require the petitioner to agree to give a quietus to all matters arising out of the transaction pending elsewhere, secondly, it would require the Bank to restrict its claim to interest on the principal amount at a reasonable rate and not as per the terms of the loan agreement. It would also be required of the petitioner and the Bank, to cooperate with the petitioner to bring the property in question to sale and permit the transfer in favour of a third party. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly and 90% of the payment had been released, it is alleged that it is thereafter that the respondent failed to complete the construction and hand over the apartment. It is claimed that the respondent has diverted large amounts of funds to other group companies. When it was evident that the respondent was not in a financial position to complete the construction, the petitioner is said to have made repeated demands for handing over of the apartment. When there was no further progress, the petitioner is said to have demanded refund of the money with interest, by a notice dated 31-5-2011. As the same did not evoke any response, except that the respondent is said to have issued a statement of account which confirmed the amount received by it, the petitioner is said to have issued a notice under Section 434 of the Act dated 13-6-2011. It appears the respondent had failed to make payment without reasonable cause. It is further claimed that Kotak Mahindra Bank started recovery of instalments from 10-6-2009. And had subsequently taken recourse to coercive measures and is claiming to have taken possession of the incomplete apartment to secure the recovery of the amount due to it, as on date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner has no rights whatsoever to terminate the agreement unilaterally, cancel the allotment or seek for refund of any monies. It further appears that the petitioner has assigned his rights in favour of the Bank in view of the Bank having paid the monies. In such a case, it is not open to the petitioner to make a claim for refund of the amounts in as much as the amounts have not been paid by him and the petitioner cannot unjustly enrich himself from any such claim and cannot contend that any amount is due to him on account of the contract not being allegedly performed within the time specified and therefore the petitioner has no locus standi to maintain this petition. There is no material to show that the petitioner has consulted or taken the consent of the Bank before seeking for refund of these monies. On the other hand, it appears that the petitioner has defaulted in the payment of monies to the bank. The bank has issued a notice recalling the loan under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Hereinafter referred to as the SARFAESI Act , for brevity). The bank appeared to have issued a notice under Section 13(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 13.04.2013 and again 16.04.2013 to provide information. The Bank has informed the respondent company that the petitioner is liable to pay Rs. 66,43,865.35 towards the outstanding amount of the petitioner in respect of loan A/c (HF-213439). Thereafter, the Bank has not come forward to negotiate with the respondent as proceedings have been initiated by the petitioner against the respondent for deficiency in service, which is still pending before the Karnataka State Consumer Disputes Redressal Commission, Bangalore. The Bank is insisting on a commitment to be made in relation to the said proceedings, which the respondent is unable to make, considering the fact that the proceedings are initiated by the petitioner making several allegations against the Bank. The Bank is not responding positively in the light of the aforesaid impediment and in view of the fact that the matter is subjudice before the State Commission. It is also contended that the respondent had made a payment of Rs. 10,00,000/- to the petitioner to enable them to negotiate with the Bank. The payment made over to the petitioner is recorded in the present proceedings. Thereafter, for reasons best known to the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.72,49,731/- 02. The respondent submits that M/s. Kotak Mahindra Bank ( Bank ) had initiated proceedings under the Securitization Act and has proceeded against Flat bearing No.704, Block F in the project Skyline Beverly Park ( Flat ). The Bank has taken possession of the Flat. The petitioner also has other issues with the above mentioned Bank. The respondent submits that the petitioner is required to sort out various issues with the Bank and furnish a Certificate showing the amount payable against the Flat and also release the Flat by handing over possession to the respondent company (hereinafter referred to as NOC for brevity). Since the Bank has taken possession of the Flat, the down payment is being made in favour of the Bank. The balance amount of Rs. 72,49,731/- shall be cleared in the following manner. Sl. No. Particulars Date Amount to be paid 01 Down payment paid in favour of Kotak Mahindra Bank 28.03.2014 Rs. 10,00,000/- Vide cheque bearing No. 004783 drawn on Kotak Mahindra Bank dated 25.03.2014. 02 First installment 1 month after producing NOC Rs. 12,49,950/- 03 Second installment 1 month after producing NOC Rs. 12,49,950/- 04 Third installment 3 months after obtaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending elsewhere, secondly, it would require the Bank to restrict its claim to interest on the principal amount at a reasonable rate and not as per the terms of the loan agreement. It would also be required of the petitioner and the Bank ,to cooperate with the petitioner to bring the property in question to sale and permit the transfer in favour of a third party. 7. In the above circumstances, it is evident that the respondent has sufficiently demonstrated that it is not incapable of paying its debts. The dismissal of the petition on the above finding would not however, be fair without resolution of the dispute which is attempted to be resolved by the respondent even making a part payment even during the course of these proceedings. Without reference to questions of jurisdiction and other legal niceties, while taking note of the petitioner s contention that the Bank may not have a legal right to lay claim to the property in question it would be in the interest of all concerned to abide by this order. The petitioner and the bank shall have no objection to the respondent identifying and enabling a sale of the apartment in favour of a third party. The sale proceeds shall be disbursed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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