Ajay Kumar Mittal, J. - (1.) - The petitioners pray for quashing the impugned order dated 7.6.2016, Annexure P.13 passed by Debt Recovery Tribunal-I, Chandigarh (in short, DRT-1) whereby appeal under section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) has been dismissed. Further prayer has been made for quashing the notices issued by the Bank under section 13(2) of the SARFAESI Act and the application for possession of the property filed by the respondent Bank. Direction has also been sought to the respondents not to initiate coercive methods against the petitioners under the SARFAESI Act.
(2.) A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. Petitioner Nos. 1 and 2 applied for housing loan for the purchase of a residential house and its construction with the intention to create an asset and also derive income from the same and repay the loan amount. Respondent No.1 Bank sanctioned housing loan of Rs. 3.63 crores i.e. Rs. 2.43 crores for the purchase of the house and Rs. 1.20 crores for the construction. Accordingly, a loan agreement for housing loan was executed on 24.3.2013, Annexure P.2 between petitioner No.1 along with his wife Smt.Seema Sharma and Punjab National Bank, Sector 17, Chandigarh. The monthly instalment of Rs. 2,42,607/- was to be paid by petitioner Nos. 1 and 2 who authorised the Bank to recover the said amount from Account No.1418000107058478 in case of default. Out of the sanctioned amount of loan, an amount of Rs. 2,43,00,000/- only was disbursed on 18.7.2013 in the loan account No.008700NC00721877 in the name of petitioner No.2. The balance amount has not been disbursed by the respondent Bank till date. Petitioner No.2 had provided necessary documents of the property i.e. sale deed for the purpose of mortgaging the same with the bank. According to petitioner No.1, due to business exigencies, the payments due were irregular but a lump sum amount amounting to 3-4 instalments were duly disbursed from time to time in one go with the Bank and till August 2015, only an amount of Rs. 8,82,000/- was overdue towards them. Respondent Bank did not disburse the loan amount for construction purposes. Complaint under Section 138 of the Negotiable Instruments Act, 1881 (in short, '1881 Act') was also lodged against petitioner Nos. 1 and 2 as well as their company and partnership firm i.e. Petitioner No.3 and Lotus Refineries Pvt. Limited. According to the petitioners, an amount of Rs. 48,73,485/- over a period of two years from the date of the start of the loan account has been deposited even after attachment of the properties as well as freezing of the accounts of petitioner No.1. Respondent Bank through its counsel issued a legal notice dated 26.8.2015, Annexure P.8 to petitioner No.1 and 2 in their individual capacity stating that they had borrowed housing loan to the tune of Rs. 32 lacs for construction of house and the same has not been paid by them and in case they fail to keep upto their obligation, their assets would be declared as Non Performing Asset (NPA). In the meantime, respondent Bank filed a complaint under section 138/142 of the 1881 Act dated 19.10.2015 before the trial court for dishonouring of one of the cheque dated 25.8.2015. Respondent Bank also filed CWP No. 23165 of 2015 (Punjab National Bank v. Estate Office and others) with a prayer for creating a charge over the assets besides marking lien on the revenue records of the property which was dismissed by this court vide order dated 31.10.2015, Annexure P.9. The Estate Officer vide letter dated 8.7.2014, Annexure P.6 informed that the lien could not be marked as the said property had been secured in the interest of the investors of the National Spot Exchange Limited scam. Accordingly, respondent Bank issued notices for the possession of the property under Section 13(4) of the SARFAESI Act against the petitioners. The petitioners approached this court through CWP No.4874 of 2016. Vide order dated 15.3.2016, Annexure P.11, the writ petition was dismissed with the liberty to the petitioners to approach the DRT-I, Chandigarh. In the meantime, symbolic possession was taken by the respondent Bank which was intimated through notice dated 18.3.2016, Annexure P.12. The petitioners approached the DRT-I Chandigarh by filing SA No.83 of 2016 to bring forth the lapses as well as shortcomings which were the mandatory technicalities to be followed by the respondent Bank before the process of sale of property was initiated but the same were not followed. The proceedings after the declaration of the NPA were upheld to be in consonance with the provisions of the SARFAESI Act as well as the rules vide order dated 7.6.2016, Annexure P.13. According to the petitioners, the auction process was held by the bank but the Bank was not able to sell the property on the prescribed date of auction i.e. 7.6.2016. Hence the instant writ petition by the petitioners.
(3.) We have heard learned counsel for the petitioners.;