~~~~~~~~~~~ The petitioner has approached this Court challenging the steps taken by the respondent Bank while invoking the remedy under the SARFAESI Act for realisation of the amount due in connection with the business loan availed by the petitioner. When the matter came up for consideration before this Court, on 1.10.2014, following interim order was passed. “The learned counsel for the respondent Bank submits that, the petitioner has sold a portion of the secured property without the knowledge or consent of the Bank, besides sale of the hypothecated items.
2. The learned counsel for the petitioner submits that, the business was being carried on in a rented premises and the rented building, along with the land, was sold by the land owner, pursuant to which, the business has been shifted to another place at Chittoor.
3. The petitioner is required to file an affidavit as to the factual particulars.”
2. Pursuant to the said order, the petitioner has filed an affidavit dated 23.10.2014 stating that the stock retained in the particular premises had to be shifted to another building situated nearly 16 kms away from the respondent Bank for the reason that the premises were sold to a stranger by the landlord of the building and the petitioner was required to quit. It is also stated that, stock worth about Rs.25 lakhs is still available in the shop; the particulars of which have been given in the said affidavit.
3. However, in response to the submissions made by the learned counsel for the respondent Bank that part of the secured property has already been subjected to sale without the consent, knowledge or involvement of the Bank, the version of the petitioner as contained in paragraph 5 of the affidavit is in the following terms.
“5. That one of the secured assets mortgaged with the respondent bank was 15 cents nilam which had to be sold to raise fund for doing business and the same fetched only an amount of Rs.1,10,000/-. However, the remaining item was also agreed to be sold for Rs.13.75 lakh in August, 2012 in favour of one Mr.Jayakrishnan, S/o.Aaru, Odachira, Vndithavalam. However, sale did not take place as expected as he could not arrange the amount for settlement of the bank debt. The present value of the mortgaged item remaining with the bank is more than Rs.18,00,000/-.”
4. The factual position has been sought to be asserted as per the statement dated 23.10.2014 filed by the respondent Bank, also producing a copy of the 'encumbrance certificate' dated 30.9.2014 issued by SRO, Chittoor as Annexure R1(d). The learned counsel for the Bank submits that there is a further attachment by the SBT as well, in view of the financial assistance availed by the petitioner from the said Bank.
5. The fact remains that part of the secured assets mortgaged with the respondent Bank was sold by the petitioner without consent, knowledge or involvement of the Bank. This being the position, this Court does not find it as a fit case to grant any relief to the petitioner as sought for. However, considering the submissions made by the learned counsel for the petitioner assuring and undertaking that the petitioner will liquidate the entire liability within two months and also taking note of the submission made by the learned counsel appearing for the Bank that the bonafides of the petitioner could be tested by granting such time also incorporating a specific default clause, the petitioner is directed to satisfy the entire outstanding amount to the Bank within 'two months' from today.
It is also made clear that, if any default is committed, in satisfying the liability as above, it will be open to the respondent Bank to proceed against the petitioner for realization of the entire amount in a lump, from the stage where it stands now. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the concerned respondent for further steps.
Writ Petition stands disposed of.
Sd/- P.R.RAMACHANDRAMENON, JUDGE.
ps/30/10/2014