Writ Petition
Partha Roy
(Querist) 30 May 2010
This query is : Resolved
On 17/08/2007 I had filed a writ petition in the Calcutta High Court challenging a Repossession Notice served on us purportedly under provisions of the SARFAESI Act under the following questions of law:
A. Whether the respondent Bank authorities concerned can proceed under the provisions of SARFAESI Act, 2002 without any mortgage being created on the concerned property by deposit of title deeds?
B. Whether the respondent Bank can disburse the loan to the promoter-developer without creating any Equitable Mortgage and/or Security Interest by deposit of title Deeds in respect of the concerned property?
C. Whether the respondent Bank authorities can proceed under provisions of SARFAESI Act, 2002 when the Complainant had repeatedly expressed their willingness to repay their loan in full, but the Bank had not accepted their offer?
The Hon'ble Justice Shri Soumitra Pal had passed an order as under:
1. Action of the Bank shall abide by the result of the writ application.
2.The point of maintainability of the writ petition is being kept open for mention by either party.
3.Bank to file 'affidavit-in-opposition' by 21/09/2007.
Meanwhile I had handed over the property to the Bank pending disposal of the writ.
The Bank did not contest the case but handed over possession of the property to the Builder who claims to have sold it to a 3rd Party.
Recently, I asked the Bank to refund Rs.3.25 Lakhs in my account but was told that it could not do so pending disposal of our writ petition.
What is the best action I can take under the given circumstances.
To learn more about the case and view relevant documents/orders one can visit
http://sites.google.com/site/merlinprojectsunionbanksite/ and
http://merlingreens.blogspot.com/
Can some kindhearted legal expert represent me on costs + commission basis.
Regards
Partha Roy
Devajyoti Barman
(Expert) 31 May 2010
For professional help you can contact me on 9831174081,24007986.
Partha Roy
(Querist) 31 May 2010
Kindly indicate briefly the plan of action which you would recommend under the circumstances outlined above.
Kiran Kumar
(Expert) 31 May 2010
apparently the matter stands resolved now, as you have already handed them over the property....since the writ is pending, better will be to move an application in the pending writ petition so that the new circumstances and facts may be brought on record and I think the HC will be quick to decide such a petition.
Partha Roy
(Querist) 31 May 2010
Mr. Aravinthan
The auction was held on 18/12/07. However, this was carried out after a protest was lodged by our lawyer.
Mr. Kiran Kumar
The property was handed over with a letter dated 27/08/2007 that we wanted to immediately repay our loan and take back the property as per provisions of the SARFAESI Act.
The Bank confirmed that on repayment of loan, the property would be handed back to us with title, rights and interests by the Bank directly executing a Sale Deed in our favour as empowered u/s.13(6) (8) of the SARFAESI Act.
However, when we went to the Bank to repay the loan it was found that the Bank did not have any of the property related documents that form part & parcel of title deeds and it was apparent that in order to unduly favour the Builder, the Bank had sanctioned and disbursed the loan without verifying any property related documents.
Moreover, it was found that even under provisions of the SARFAESI Act, a Bank is not empowered to sell a property which had not been mortgaged to the Bank by deposit of title deeds.
This was clearly established by the fact that when the Bank wanted to sell the property to one of their Collection Agents, it had to collaborate with the Builder to execute a Sale Deed.
We had notified the Bank that since it could not directly transfer the property to us as confirmed in writing, no further action should be taken in regard to the property till the Calcutta High Court disposes off our writ.
Meanwhile, the State Commission (Consumer Court) directed the Builder to transfer the property to us and also pay us compensation & costs.
However, as the Builder had already sold the property on behalf of the Bank, the above Order was rendered infructous.
Can I even at this stage mention in the H.C that as the Bank did not contest our writ the property should be handed back to us?. Will the purported sale by the Builder on behalf of the Bank be considered valid? Can I file a criminal case against the concerned Bank officials for (a) sanctioning & disbursing the loan without verification of documents (b) for disbursing the loan without the property being transferred to us and mortgaged to the Bank by deposit of title deeds (c) for selling the property in violation of the Order passed by the H.C?
Regards
Roy
Uma parameswaran
(Expert) 01 June 2010
If there is forged documents created then only liable for a criminal case.Here the fault which was occurred in relation to the disposal of the loan can be cured by the authorities.Because loan has already disperse and its benefits was utilized by the debtor.So there is no chance for criminal case.File a detail IA in the existing WP.
Partha Roy
(Querist) 01 June 2010
Dear Ms. Uma Parameswaran,
The forged documents mentioned are in relation to a separate complaint filed by my wife which has been admitted U/s.156(3)Cr.P.C and is under Police investigation.
A criminal case lodged against the Bank U/S: 156(3)Cr.P.C for offenses U/s: 420/418/409/403/381/120B has also been admitted and is under investigation
My specific question is "Can I mention before the H.C that the Bank did not contest my writ petition challenging applicability of the SARFAESI Act in our case and yet sold the subject property to a 3rd Party although the H.C had directed that further action of the Bank must abide by the result of our writ application?"
Will be much obliged if I am advised on this specific issue only.
Rgds
Partha Roy
Uma parameswaran
(Expert) 01 June 2010
If the bank has gone against the High Court Order ,then you have the right to move contempt petition against Bank before High Court.
