SONIA GOKANI,J. - (1.) By way of this petition, the petitioner challenges the orders dated 10.04.2018 and 26.10.2018 passed in Criminal Misc. Application No.8877 of 2017 by the learned Chief Metropolitan Magistrate, Ahmedabad. The present petitioner obtained certain credit facilities from the respondent-Bank, which the petitioner could not repay to the Bank. So the account of the petitioner was declared as non performing account by the respondent-bank. The respondent filed Application under Section 14 of the Secutarization & Reconstruction of Financial Assets and Enforcement of Security Interest Act , 2002 (herein after referred to as " SARFAESI Act ", against the petitioner and others for taking physical possession of the securities. The Chief Metropolitan Magistrate allowed the said application vide order dated 10.04.2018 and the same was challenged before the Debt Recovery Tribunal in Securitisation Application No.68 of 2018. The Debt Recovery Tribunal-I, Ahmedabad passed an order dated 18.05.2018.
(2.) Before the Debt Recovery Tribunal, learned counsel for the petitioners had submitted that owing to the financial crisis, the petitioners would not be in a position to deposit the amount and adhere to financial discipline of the Bank. However, the learned counsel for the petitioners and petitioners present in-person as noted by the Debt Recovery Tribunal, submitted that they would be paying the entire dues of the Bank as per the demand notice issued under Section 13(2) of the SARFAESI Act, 2002 for the sum of Rs.1,67,12,030.60Ps including all expenses as on 30.06.2016 along with agreed rate of interest from 01.07.2016 and actual expenses incurred by the Bank in process under the Securitisation Act within 6 months from 01.07.2018 and would also pay minimum RS.10,00,000/-on or before 30.06.2018 and further would pay Rs.3,00,000/- in every block of two months to be commenced from 01.07.2018, but would pay the entire dues within 6 months. The petitioners had waived and relinquished all the grounds taken in the Securitisation application and on a Single default, the Bank was permitted to be entitled to execute the order passed by the learned Chief Judicial Magistrate under Section 14 of the SARFAESI Act, 2002.
(3.) Accordingly the following consent terms were recorded by the Debt Recovery Tribunal : "I have heard the Ld. Counsel for the parties and I feel judicious to pass following orders on the consent of both the parties. i. The applicants will deposit entire due amount of the bank as per the Demand Notice issued under Section 13(2) of the SARFAESI Act, 2002 i.e. Rs.1,67,12,030.60Ps including all expenses as on 30.06.2016 alongwith agreed rate of interest from 01.07.2016 (without any penal interest) and actual expenses incurred by the bank in process under Securitisation Act within 6 months from 01.07.2018 and will pay minimum Rs.10,00,000/- on or before 30.06.2018 and further would pay Rs.3,00,000/- in every block of two months to the commenced from 01.07.2018, but would pay the entire dues within 6 months. In case of single default applicants will be liable to pay the amount claimed in the demand notice alongwith agreed rate of interest include penal interest. ii. It will be the duty of the applicants to have the calculations from the bank and they will not raise any excuse at any point of time that bank has not supplied calculations. iii. In case of single default the bank will be at liberty to proceed under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act , 2002 on the process already initiated. iv. Applicants waive their all grounds and objections taken in secularization application. Time is/ will be the essence of this compromise and applicants will not be entitled for any time extension in future. v. Applicants will not raise any objection to the said process in any manner. vi. The minimum payable amount will be payable on or before last day of respective each block of two months. vii. If this is complied with bank will not take any coercive measures against the security. However, in case of default and even non-deposit of Rs.10,00,000/-, the bank will be able to proceed to take possession in accordance with law. viii. Any amount recovered under this compromise will not be considered as amount recovered by Secularization Agency and as such on this amount the bank will not be able to charge or deduct or pay any amount to any enforcement agency by way of commission or fee. However, any amount already paid will be recoverable from borrower. In terms of the proposal given by counsel for the applicants this present S.A. is disposed of. This compromise will not effect other rights and remedy of the bank against the other borrowers/co- borrowers or guarantors even otherwise available to bank in accordance with law. This order has been passed at the instance of applicants and on their commitment that they will pay the amount within stipulated period as such time will be the essence of this order." ;