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Mrs V P Maragathamani vs The Authorised Officer ( Recovery ) And Others

Madras High Court|10 January, 2017
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JUDGMENT / ORDER

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.01.2017 CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
W.P.No.23708 of 2016 W.M.P.No.20312 of 2016
Mrs.V.P.Maragathamani .. Petitioner versus
1. The Authorised Officer (Recovery), REPCO Bank (Government of India Enterprise), REPCO Towers, No.33, North Usman Road, T.Nagar, Chennai 600 017.
2. The Assistant General Manager, REPCO Bank, Ramanathapuram Branch, No.750-D, R.N.Mallika Complex, Trichy Road, Ramanathapuram, Coimbatore 641 045. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondents to permit the petitioner to remit the balance outstanding amount to the bank in 10 (ten) equal and successive monthly installment and continue to keep up the regular installment payments as per the original loan schedule, consequently forbearing the respondents from taking any further action pursuant to the notice, dated 13.05.2016 in Ref.SRF.773, 774, 775, 776/2016/LAD, issued by the 1st respondent.
For Petitioner : Mr.S.P.Sudalaiyandi For Respondent : Mr.A.Ilangovan
ORDER
(Order of the Court was made by S.MANIKUMAR, J.) Writ petition is filed seeking for a Mandamus, directing the respondents to permit the petitioner to remit the balance outstanding amount to the bank in 10 (ten) equal and successive monthly installment and continue to keep up the regular installment payments as per the original loan schedule and consequently forbearing the respondents from taking any further action pursuant to the notice, dated 13.05.2016 in Ref.SRF.773, 774, 775, 776/2016/LAD, issued by the 1st respondent.
2. Though Mr.S.P.Sudalaiyandi, learned counsel for the petitioner placed reliance on a decision of the Kerala High Court in M/s.Sundaram BNP Praibas Home Finance Ltd., v. Nisha reported in AIR 2016 Kerala 63 and submitted that the Writ Court has jurisdiction to allow the debtor to remit the loan amount in easy installments, during the course of hearing, when a specific question was posed to the learned counsel, as to whether, he is aware of a decision of this Court in M/s.Digivision Electronics Ltd., Retistered Office at No.A5 & 6, Industrial Estate, Guindy, Chennai - 32 v. Indian Bank, rep. by its Deputy General Manager, Head Office, 31, Rajaji Salai, Chennai-1 and another, reported in 2005 (3) LW 269, the answer was in the negative.
3. In M/s.Digivision Electronics Ltd., Retistered Office at No.A5 & 6, Industrial Estate, Guindy, Chennai - 32 v. Indian Bank, rep. by its Deputy General Manager, Head Office, 31, Rajaji Salai, Chennai-1 and another, reported in 2005 (3) LW 269, at paragraph No.42, a Hon'ble Division Bench of this Court held as follows:
"42. Some of the learned counsel submitted that the Court should direct one time settlement or fixing of installment or rescheduling the loan. In Tamilnadu Industrial Investment Corporation Vs. Millenium Business Solutions Private Limited, 2004 (5) CTC 689, it has been held that this Court cannot pass any such order in writ jurisdiction, since directing one time settlement or granting installments is really re-scheduling the loan, which can only be done by the bank or financial institution which granted the loan. This Court under Article 226 of the Constitution cannot reschedule a loan. A writ is issued when there is violation of law or error of law apparent on the face of the record, and not for rescheduling loans. The Court must exercise restraint in such matters, and not depart from well settled legal principles".
At paragraph No.46 of M/s.Digivision Electronics' case (cited supra), a Hon'ble Division Bench further held as follows:
"46. Writ is a discretionary remedy, and hence this Court under Article 226 is not bound to interfere even if there is a technical violation of law, vide R.Nanjappan Vs. The District Collector, Coimbatore, 2005 WLR 47, Chandra Singh Vs. State of Rajasthan, JT 2003 (6) SC 20. The Managing Director, Tamil Nadu State Transport Corporation (Madurai Division-IV) Ltd., Dindigul Vs. P.Ellappan, 2005 (1) MLJ 639, Ramniklal N.Bhutta and Another Vs. State of Maharashtra, 1997 (1) SCC 134, etc."
4. Earlier, after considering a catena of decisions on the legal right of a person to seek for a writ of mandamus, a Hon'ble Division Bench of this Court in Tamilnadu Industrial Investment Corporation Vs. Millenium Business Solutions Private Limited reported in 2004 (5) CTC 689, at Paragraph Nos.7,8,16 and 18, held as follows:
"7.In our considered opinion it is not proper for the Court to interfere in such matters relating to recovery of loans. Such matters are contractual in nature and writ jurisdiction is not the proper remedy for this. A writ lies when there is an error of law apparent on the face of the record, or there is violation of law. No writ lies merely for directing one time settlement or for directing re-scheduling of the loan or for fixing instalments in connection with the loan. It is only the bank or the financial institution which granted the loan which can re-schedule it or fix one time settlement or grant instalments. The Court has no right under Article 226 of the Constitution to direct grant of one time settlement or for re- scheduling of the loan, or to fix instalments.
8. No doubt Article 226 on its plain language states that a writ can be used by the High Court for enforcing a fundamental right or for 'any other purpose'. However, by judician interpretation the words 'any other purpose' have been interpreted to mean the enforcement of any legal right or performance of any legal duty, vide Calcutta Gas Co.
v. State of West Bengal, AIR 1963 SC 1044. In the present case, the writ petitioner has really prayed for a Mandamus to the Corporation to grant it a one time settlement, but no violation of any law has been pointed out. In our opinion, no such mandamus can be issued in this case, and hence the writ petition should not have been entertained. A mandamus is issued only when the petitioner can show that he has a legal right to the performance of a public duty by the party against whom the mandamus is sought.
16. A loan is granted in terms of the contract, and grant of one time settlement or re-scheduling of the loan amount is really a modification of the contract, which can only be done by mutual consent of the parties, vide Section 62 of the Contract Act, 1872. The Court cannot alter the terms of the contract.
18. Before parting with the case we would like to mention that recovery of tens of thousands of crore rupees of loans of banks and financial institutions has been held up by Court orders under Article 226 proceedings which were really unwarranted. However, much sympathy a Court may have for a party, a writ Court must exercise its jurisdiction on well settled principles, and not a mere sympathy or compassion. No doubt, there be hardship to a party, but unless violation of law is shown the Court cannot interfere. Holding up recoveries of loans by unwarranted Court orders is causing incalculable harm to our economy, since unless the loan is recovered a fresh loan cannot be granted to needy persons. The Courts must keep these considerations in mind."
5. Decision of Kerala High Court in M/s.Sundaram BNP Praibas Home Finance Ltd., v. Nisha reported in AIR 2016 Kerala 63, is persuasive and as per the Hon'ble Full Bench of this Court in R.Rama Subbarayalu Reddiar v. Rengammal reported in (1962) 2 MLJ 318 (FB), wherein, at Paragraph 4, the Hon'ble Full Bench of this Court, held as follows:
“4. Before we deal with the question, involved in the appeal, it is necessary to examine the propriety of the procedure adopted by the learned District Judge. The normal rule as to the precedents is, that subordinate Courts are bound in the absence of any decision of the Supreme Court, to follow the decisions of the High Court to which they are subordinate. Where, however, there is a conflict between two decisions of the High Court, the rule to be adopted is as follows :--
Where the conflict is between the judgment of a single Judge and a Bench or between a Bench and a larger Bench, the decision of the Bench or the larger Bench as the case may be, will have to be followed. But where the conflict is between two decisions both pronounced by a Bench consisting of the same number of Judges, and the subordinate Court after a careful examination of the decision came to the conclusion that both' of them directly apply to the case before it, it will then be at liberty to follow that decision which seems to it more correct, whether such decision be the later or the earlier one. To enable the subordinate Court to do so, the two apparently conflicting decisions must directly relate to and expressly decide the question that arises before the Court; otherwise a subordinate Court should follow that ruling which specifically deals with the point. It will not be open to it for example to follow the other decision which only impliedly or indirectly or by way of a mere observation gave expression to a contrary view. It follows that the learned District Judge in the present case was not justified in refusing to follow the decision referred in Francis v. Varghese , for his preference a decision which impliedly decided the point as against the one that directly did so is neither consistent with established rules relating to precedents nor conducive to orderly administration of justice.”
6. Therefore, as per the decisions of this Court in Tamilnadu Industrial Investment Corporation Vs. Millenium Business Solutions Private Limited, reported in 2004 (5) CTC 689 and M/s.Digivision Electonics Ltd., Retistered Office at No.A5 & 6, Industrial Estate, Guindy, Chennai - 32 Vs. Indian Bank, rep. by its Deputy General Manager, Head Office, 31, Rajaji Salai, Chennai-1 and another, reported in 2005 (3) LW 269, this Court cannot compel the bank for any rephasement or One Time Settlement. Decisions cited by us, decide the principles of law to be followed, in the matter of rephasement and settlement of dues. Needless to say that it is well settled that a decision on the point of law raised, argued and decided, is binding on the Co-ordinate Bench. We deem it to follow the decision in M/s.Digivision Electronics Ltd., Retistered Office at No.A5 & 6, Industrial Estate, Guindy, Chennai - 32 v. Indian Bank, rep. by its Deputy General Manager, Head Office, 31, Rajaji Salai, Chennai-1 and another, reported in 2005 (3) LW 269.
7. In the light of the above discussions and decisions, the writ petition is dismissed. No costs.
[S.M.K., J.] [M.G.R., J.] 10.01.2017 Index: Yes/No. Internet: Yes/No skm
S. MANIKUMAR, J.
AND M.GOVINDARAJ, J.
skm
W.P.No.23708 of 2016
10.01.2017
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Title

Mrs V P Maragathamani vs The Authorised Officer ( Recovery ) And Others

Court

Madras High Court

JudgmentDate
10 January, 2017
Judges
  • S Manikumar
  • M Govindaraj