The petitioner has approached this Court with the following prayers:
“i. Issue a writ of mandamus to the respondents to re-fix the reserve price of the property taking into consideration the prevalent market value of the property from department of revenue and registration.
ii. Issue a writ of mandamus to the respondents to grant permission to the petitioner to sell the property by private sale within a period of six months and remit the amount due to the Bank.”
2. The issue is mainly in respect of the steps taken by the third respondent invoking the machinery under the SARFAESI Act for realization of the amount due under a loan transaction. The petitioner borrowed a sum of ₹3.25 lakhs from the respondent Bank creating security interest over the property in question. Admittedly, there occurred some default when the Bank proceeded with further steps under the SARFAESI Act. Petitioner approached the DRT, Ernakulam by filing S.A. No. 112 of 2013, which was disposed of as per Ext.P2, permitting the petitioner to liquidate the liability in a phased manner. But the payment could not be effected on time. The property now stands notified for sale to be held on 6.12.2014 as borne by Ext.P5, which made the petitioner to approach this Court, mainly contending that the 'upset price' fixed is very low and hence seeks to intercept the sale.
3. Heard the learned counsel for the respondent Bank as well, who points out that the full sequence of events has not been disclosed in the writ petition. It is stated that, by virtue of chronic default on the part of the petitioner, the Bank initiated proceedings under the SARFAESI Act, when the petitioner approached the DRT, Ernakulam by filing S.A. No. 522 of 2009 in the year 2009. The said S.A was dismissed by the Tribunal and thereafter, the petitioner approached this Court by filing W.P.(C). No. 16061 of 2012. Referring to the outcome of the S.A 522 of 2009, this Court declined interference and the writ petition was dismissed as per judgment dated 10.12.2012. It was thereafter that the petitioner approached the DRT, Ernakulam again by filing S.A. No. 112 of 2013, wherein some orders were passed as aforesaid.
4. Ext.P2 is the final order passed by the DRT, Ernakulam on 18.2.2013, the operative portion of which as discernible from paragraph '4' is extracted below, for convenience of reference:
“4. Having regard to the submissions made by the learned Counsel, the Tribunal considered the materials on record and the relevant aspects. It is seen that there is no dispute with regard to the availment of the credit facility (Rs.3.25 lakhs in the year 1999) and the creation of security interest over the subject secured asset. Admittedly, there is default in compliance with the demand made under S.13(2) of the Act. No doubt, the applicant is a chronic defaulter; and the original loan amount availed in the year 1999, remains outstanding with an amount of Rs.9.05 lakhs as on 22.12.2012. In the circumstances considering the nature of the grievances of the applicant, and the bonafide of the applicant atleast now to settle the matter, it is felt desirable to grant an opportunity to settle the matter amicably to the mutual benefit and interests of both the parties. Accordingly the Tribunal is inclined to pass an order permitting the applicant to settle the entire dues in the following manner.
a. That the applicant shall initially remit a sum of Rs.1,00,000/-, on or before 09.03.2013 (upon compliance of this condition the 1st defendant shall furnish the copy of the statement of account to the applicant, duly indicating the upto date interest, costs and expenses, so as to enable the applicant to settle the matter within the stipulated time);
b. That a further sum of Rs.4,00,000/- shall be remitted on or before 31.03.2013; and
c. That the entire remaining dues shall be settled on or before 30.04.20123, even under any OTS”
5. As per paragraph '5' of Ext.P2, a default clause was incorporated, permitting the defendants to proceed with the sale in the manner as specified therein, if at all any lapse or failure was there on the part of the petitioner in satisfying the due amount. After disposal of the matter, the petitioner did not satisfy the due amount, but for effecting some part payments and thereafter, the petitioner filed I.A 2890/2013 seeking for reference to the 'Lok Adalath'. Observing that no such course was proper, as the proceedings have already been finalized as per Ext.P2 judgment, the Tribunal still extended some leniency and Ext.P4 order was passed on 31.10.2013, giving appropriate direction to the Bank to cause the matter to be considered in the next Lok Adalath for an amicable settlement.
6. The learned counsel for the respondent Bank submits that, though the concerned officer of the Bank was made to wait in the Lok Adalath proceedings, the petitioner did not turn up. This is sought to be rebutted by the learned counsel for the petitioner stating that, it is the other way round. This Court however, does not propose to go into such factual particulars.
7. The only question to be considered is whether, interference is possible at the hands of this Court, especially when the writ petition filed earlier on a different ground, of course referring to the finalization of the proceedings before the DRT. The said question cannot but be answered in the negative; more so when, the petitioner had approached the DRT, even after dismissal of the said writ petition and obtained Ext.P2 order. The present grievance of the petitioner with regard to the wide disparity between the 'upset price', shown in Ext.P1 valuation report submitted by an approved valuer as ₹43.72 lakhs and the upset price shown in Ext.P5 sale notice as ₹31.20 lakhs. This is a matter which is to be considered by the competent forum, which exercise is not liable to be pursued by this Court, invoking the discretionary jurisdiction under Article 226 of the Constitution of India. Of course the learned counsel for the petitioner has made a reference to the decision rendered by the Apex Court reported in Ram Kishun v State of U.P AIR 2012 SC 2288 to the effect that, the financial institutions like the respondent Bank are not supposed to act as private money lenders or real estate dealers and that wider questions are there, also in relation to the correct valuation to be effected and the steps to fetch maximum value to the property, these are factual aspects to be considered by the appropriate forum, if at all any challenge is there with regard to the sale and the procedure to be followed. Interference by the writ Court has to be a seldom exercise, in view of the law declared by the Apex Court in United Bank of India v. Satyawati Tondon and Others 2010 (8) SCC 110.
In the said circumstance, interference is declined and the writ petition is dismissed without prejudice to the rights and liberties of the petitioner to pursue other appropriate remedy, if any, in accordance with law.
P.R. RAMACHANDRA MENON, JUDGE.
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