ASHOKE KUMAR DASADHIKARI,J. - (1.) THE subject matter of appeal relates to an order of the learned Single Judge refusing to entertain the writ petition filed by the writ petitioner with a prayer to release the movable and immovable assets not hypothecated and mortgaged to the respondent bank, to allow him to operate the locker with the Bank and give appropriate accounts of loan amount Rs.9,75,152.37 after adjustment of matured value of fixed deposits Rs.4,40,00 and for releasing all security assets held since 11th December, 2003 on complete realization of the loan of Rs.9,75,152.37. The appeal arose against the judgment and order dated 17th April, 2012.
(2.) THE writ petitioner was carrying on business in the name of East India Chemical Products and East India Trading Company. State Bank of India Ektiashal Branch sanctioned credit facilities in favour of East India Trading Company to the tune of Rs.5,00,000/- against STDR value Rs.50,900/- and Rs.75,000/- as collateral security with equitable mortgage property of Hyderpara in the District of Jalpaiguri. Similarly, credit facilities were also sanctioned by the Bank Authorities in favour of East India Chemical Products i.e. cash credit to the tune of Rs.3,00,000/-, clean medium loan to the tune of Rs.1,95,000/- and medium term loan for Rs.95,000/- against STDR of Rs.1,00,000/- as collateral security and by creating equitable mortgage in respect of 30 cottah of land at Dabgram in the District of Jalpaiguri. A loan of Rs.40,000/- was also sanctioned in favour of the petitioner for purchasing a motor cycle. The petitioner failed to repay the aforementioned loans and the Bank issued a notice upon the petitioner under Section 13 (2) of the SARFAESI Act with regard to outstanding dues in the name of East India Trading Company and took over the possession of mortgaged property at Hyderpara on 13th December, 2003. Writ petition being W.P. No.1384 (W) 2004 was moved, inter alia, challenging the steps taken by the Bank Authorities under the SARFAESI Act. The writ petition was dismissed by this Hon'ble Court on 21st September, 2004 giving opportunity to petitioner to apply before the Debts Recovery Tribunal and an order was also passed directing the Bank to return the house hold articles of the petitioner lying with the Bank. Contempt application was filed for non-compliance of the order. Special Officer was appointed and ultimately non-mortgage goods were returned by the Bank to the petitioner. Thereafter contempt application was filed which was withdrawn with leave to file afresh. Pursuant to leave granted, another contempt application was filed and this Hon'ble Court directed Inspector General of Police (N) to submit a detail report as regards the writ petitioner's complaint. Chief Manager State Bank of India was also directed look into the matter and make an enquiry and file a report before this Court. Reports were filed stating that the goods have already been returned in terms of the order and accordingly third contempt application was also dismissed. It was clarified in the order that the said order would not stand in the way of the petitioner to take any further step before the appropriate forum in accordance with law. Bank Authority issued sale notice in respect of secured assets in question and the said notice was challenged by the petitioner in W.P. No.3624 (W) of 2007 before this Court the said writ petition was again dismissed on 4th July, 2008 on the ground that the earlier writ petition had been dismissed with liberty to the petitioner to approach the Tribunal. This order was challenged before the Hon'ble Division Bench. The Hon'ble Division Bench also dismissed the appeal on 25th September, 2008 with a direction that the petitioner will be liberty to seek remedy in accordance with law. This is the third writ application moved by the writ petitioner, inter alia, praying for return of non-mortgage goods, permission to operate his locker, settlement of his accounts and other reliefs. One application being C.A.N. No.6732 of 2012 was also filed praying for interim direction to Bank to return keys of the locker to the petitioner. The Hon'ble Single Judge upon hearing the parties dismissed the petition holding that the issues were decided in the earlier writ petitions and nothing new is there to decide. The writ petition is barred by principles of res judicata.
(3.) INITIALLY writ petitioner himself appeared and argued the matter in person but subsequently some learned Lawyers assisted him and made some arguments. The petitioner submitted that he visited the Branch and found locker is broken and nothing is inside. He submitted that the Bank has wrongfully sold the mortgage property without proper assessment made by any Chartered Valuer and also without fixing the base price before holding the sale. There is no account of sale proceeds. The writ petitioner pointed out that the Bank Authorities on different occasion mentioned different amounts as their claim. He drew our attention to a letter dated 23rd December, 2005 wherein the Bank Authorities informed petitioner's learned Advocate that total outstanding would amount to Rs.9,09,128.15. Again the Bank by their letter 23rd dated April, 2006 informed the petitioner that the total outstanding as on 31st March, 2006 would amount to Rs.9,92,577.15 Thereafter by another letter dated 9th to be paid by petitioner. April, 2008 it was informed by the Bank that Bank wanted to compromise the dues to the tune of Rs.1,42,48,948.06 at Again by a letter issued on 9th June, 2008 the Rs.11,00,000/-. Bank communicated total outstanding of Rs.6,53,496.61. There are several communications sometime lakhs and sometime crores but without any basis and/or proper calculation. Writ petitioner submitted that the Bank Authorities did not give the actual figure to him after adjustment of fixed deposits which were lying with the Bank. It was also submitted, suit was also filed for recovery of Rs.6,00,000/- and odd and the said suit is still pending. It was further submitted that the price of the immovable property mortgage to the Bank was much more than the loan amount of Bank. Bank Authorities always kept the writ petitioner in dark and they did not give proper accounts what was the actually due and what they had received by selling the property and the balance to be received by him. According to him, the immovable property that was mortgaged by the Bank, were all valuable properties and in one case about 22 bighas of land was mortgaged and the property value per cottah of that area was not less than Rs.3,00,000/-, therefore, for a meager sum of the loan amount including the interest Rs.9,75,152.37 the entire property was sold at a throughway price without following the procedure and norms and also without any information to the petitioner. He would submit that the action of the Bank was illegal, unfair and they being authority under Article 12 of the Constitution of India were required to act fairly and reasonably and obliged to give all details about the loan amount fallen due. It was submitted, there was no necessity of selling the entire property. The respondent Bank could have sold a portion of the property which was required to saturate the loan amount but in the instant case the entire property was sold even without appropriate assessment of market value.;