Decided on May 21,2020

Dhira Sahoo Appellant
H.D.F.C. Bank Ltd Respondents


Mohammad Rafiq, C.J. - (1.) This writ petition has been filed by Dhira Sahoo-petitioner, inter alia, with the prayer that a writ of mandamus may be issued to the respondents-Bank to hand over the possession of his house situated at Kaibaly Vihar, P.O.- Nayabazar, P.S. Chauliaganj, Dist-Cuttack, pursuant to the order of the Debts Recovery Tribunal, Cuttack (for short "the Tribunal") dated 04.01.2020 passed in SA. NDN.2548 of 2019 and O.A. No.618 of 2017.
(2.) The background facts giving rise to this writ petition are that the petitioner is the proprietor of M/s. Maa Tarini Enterprises, the principal borrower in the loan account with the respondents-Bank. The said firm was engaged in the work of cleaning the used liquor bottles relating to Mc.Dwell Liquor Company. It availed cash credit loan for its business to the tune of Rs.35.00 lakhs from the respondents-Bank and an amount of Rs.10.00 lakhs was given as fixed deposit. The petitioner stood guarantor for the said loan and mortgaged his house for that purpose. Since the Mc.Dwell Company was closed down, the business of the said firm had to be stopped. The firm defaulted in making payment of the loan amount, therefore its loan account was declared NPA. According to the petitioner, he approached the respondents-Bank for settlement of the loan account, but the Bank refused to entertain the request. The Bank then initiated recovery proceeding under the SARFAESI Act and took possession of the residential house of the petitioner on 03.12.2019 which was mortgaged against the loan account for which the petitioner stood the guarantor. The petitioner filed the aforesaid SA challenging the action of the Bank in taking over physical possession of his house.
(3.) According to the case set up by the petitioner before the Tribunal, loan was of Rs.35.00 lakhs as cash credit limit to the firm of the petitioner. An amount of Rs.10.00 lakhs was given as fixed deposit to avail such loan. The Bank charged interest @ 18% on Rs.35.00 lakhs but paid interest at a very low rate on the fixed deposit of Rs.10.00 lakhs. While the petitioner was paying dues regularly, but due to business loss, he could not pay few installments. He then approached the respondents-Bank to avail the benefit of one time settlement (for short, 'OTS') and therefore, submitted an application to close the account on settlement. But the Bank did not entertain such request. According to the petitioner, his family members including four daughters are facing grave hardship as all of them are residing in a small rented room.;

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