DISTRICT: NORTH 24-PARGANAS
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W. P. No. (W) of 2015
In the matter of
An
application under Article 226 of the Constitution of India
And
In the matter of
A writ in the nature of Mandamus and/or in the nature
of Certiorari and/or in the nature of Prohibition and/or any such other
appropriate writ/writs, order/orders and/or direction/directions under the
Constitution of India
And
In the
matter of
Violation
of the Principles of Natural Justice
And
In the
matter of
Article
14, 19, & 21, of the Constitution of India
And
In the
Matter of
The
Securitisation and Reconstruction of Financial Assets & Enforcement of
Security Interest Act, 2002
And
In the Matter of
Rule 8(6) and Sub- Rule (5) paragraph (f) of Security Interest
(Enforcement) Rule, 2002
And
In the matter of
Rule 9 (9) of the Security Interest (Enforcement) Rules, 2002,
And
In the
Matter of
letter being Ref. no. IDBI.SCB. No. 9284 / Recovery (GKTPL), dated 13/2/2013,
And
In the
Matter of
Section 35 of the SARFAESI Act
And
In the
matter of :
Shri
Santosh Kumar Tiwari, Son of Sri Balram Tiwari, residing at 2nd
Floor, P-304/D, CIT Road, Scheme VI M, Kankurgachi, Kolkata – 700 054.
_______ Petitioner.
Versus
1. IDBI Bank Limited,
Specialized Corporate Branch, Recovery Department, 4th Floor, IDBI
House, 44, Shakespeare Sarani, Kolkata – 700 017;
2. The Authorised
Officer, IDBI Bank Limited, Specialized Corporate Branch, Recovery Department,
4th Floor, IDBI House, 44, Shakespeare Sarani, Kolkata 700 017;
3. The General Manager,
IDBI Bank Limited, Specialized Corporate Branch, Recovery Department, 4th
Floor, IDBI House, 44, Shakespeare Sarani, Kolkata 700 017.
4. The Deputy General
Manager, IDBI Bank Limited, Specialized Corporate Branch, Recovery Department,
4th Floor, IDBI House, 44, Shakespeare Sarani, Kolkata 700 017.
5. The Recovery
Manager, IDBI Bank Limited, Specialized Corporate Branch, Recovery Department,
4th Floor, IDBI House, 44, Shakespeare Sarani, Kolkata 700 017.
………Respondents
To
The Hon’ble Mrs. Manjula Chellur,
Chief Justice and Her Companion Justices of The said Hon’ble Court
The humble petition on behalf of
the petitioner above named Most Respectfully
Sheweth: -
1.
That
Your petitioner is a citizen of India and is permanently residing at the
address mentioned in the Cause Title hereinabove.
2.
That the Petitioner is an
employee of AXIS Bank Limited, presently working for gain at 1, Shakespeare Sarani,
Kolkata- 700 071, formerly your petitioner was an employee of IDBI Bank, and
was working for gain at 101, Park Street, Kolkata.
3.
That the Respondent no. 1
i.e. IDBI Bank Limited published one Public Notice for Sale of Residential
Flats at Kolkata on 31st day of October’ 2012, through it’s
Authorized Officer, under the provisions of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act’
2002, in respect of the Flat no. I and IV, admeasuring 1850 Sq. ft. and 1210
Sq. ft. respectively ( super built up area ) on the 8th floor in
block –B, in the building named “Garden Tower” with an open car parking space
at the ground floor of the building with undevided proportionate share in the
land of the said premises having an area of Land admeasuring 3 bighas 2 Cottahs
1 Chhitacks 15 Sq. ft. at premises being No. 256, Picnic Garden Road ( formerly
premises No. 256, 258, and 260 ), Kolkata – 700 039, Mouza – Bondel Gram,
Division – 5, Sub Division -1, Police Station – Tiljala, in daily news paper
and on website.
A Photocopy of the Publication or Advertisement of Public
Notice For Sale of Residential Flats at Kolkata, dated 31st day of
October’ 2012, published by the respondents / opposite parties, is annexed
herewith and marked as Annexure P1
to the instant writ application.
4.
That the Respondent Bank IDBI Bank, published such notice
on 31st day of October’ 2012, cited as PUBLIC NOTICE FOR SALE OF
RESIDENTIAL FLATS AT KOLKATA, and wherein the date of inspection and collection
of Bid Form, was given as 26th day of November’ 2012 to 30th
day of November’ 2012, Last date of submission of sealed bids was on 03rd
day of December’ 2012, at 1:00 pm. And the date and place of opening of bids
was on 03rd day of December’ 2012, at 3:00 pm. at IDBI Bank,
Specialized Corporate Branch, Recovery Vertical, 4th Floor, IDBI
House, 44, Shakespeare Sarani, Kolkata – 700 017. Terms and conditions
contended as “ Intending bidders may arrange to obtain bid forms ( Form 1 and
Form 2 ) from IDBI Bank at Specialized Corporate Branch, Recovery Verticle, 4th
Floor, IDBI House, 44, Shakespeare Sarani, Kolkata – 700 017, or download the
same from website and bids should be submitted in same formats only on date and
time mentioned therein. The successful bidders would be informed in writing
about the acceptance of his / her bid / offer by the AO and will be required to
deposit 25% of the price ( less the amount of EMD deposited ) immediately by
demand draft / pay order drawn in favour of “IDBI Bank Limited” payable at
Kolkata, balance amount of the sale price shall have to be paid within 15 days
of acceptance of the bid. The defaulting bidder shall forefeet all claims to
the assets or to any part of the sum for which it may be subsequently sold.
Property is being sold on “As is Where is”, “As is What is & whatever there
is Basis”. All statutory liabilities / housing society tax / maintenance fees /
electricity / water charges etc. outstanding as on date and yet to fall due
would be ascertained by the bidder and would be borne by successful bidder.
Bank does not take any responsibility to provide information on the same.
Successful bidders will have to bear all costs, charges and expenses in
connection with registration of sale certificate including Stamp duty,
registration fee, incidental charges etc.”
A photocopy of form -1, and form – 2, and copy of demand
draft of EMD of Rs. 5,25,000/-, are collectively annexed herewith and marked as
Annexure P2 to the instant
writ petition.
5.
That on 26th day of November’ 2012, your
petitioner went to the IDBI Bank, at their given address, for the purpose of
inspection, and whereas the Recovery Officials accompany him and reached at the
property address for inspection. Your petitioner visited the property being
Flat no. I, at premises no. 256, Picnic Garden Road ( formerly premises no.
256, 258, 259, and 260 ), Kolkata – 700 039, Mouza – Bondel Gram, Division – 5,
Sub-Division – 1, Police Station – Tiljala, and asked for the papers and or
documents of the property related to the title and others, which has not been
given and provided by the appointed recovery Officials of IDBI Bank, and they
said that they have taken the physical possession of the property from the
borrower and all the papers are ok and there was no discrepancies in papers of
the title of the property, and it would be shared only after being selected as
highest bidder, and on such assurance your petitioner decided to go ahead to
fill the prescribed form of bid. Your petitioner was also confident that IDBI
Bank would cooperate, would not hide any information, would not put him in
trouble being his old employer.
6.
That the Petitioner downloaded the Form 1 and Form 2,
from the website, and duly filled up and submitted as on 3rd day of
December’ 2012, within the given time frame, for the property as Flat no. I, at
premises no. 256, Picnic Garden Road ( formerly premises no. 256, 258, 259, and
260 ), Kolkata – 700 039, Mouza – Bondel Gram, Division – 5, Sub-Division – 1,
Police Station – Tiljala, having Reserve Price of Rs. 52.24 Lakhs ( Rupees
Fifty Two Lakhs and twenty Four Thousand ) only. Before handing over the sealed
envelope to the concerned officials of the bank your petitioner again requested
to disclose/inform any related material information on the property. But reply
of the bank official named Arindam Biswas (Manager, Recovery) was the same that
property papers are ok except dues to municipal authorities, promoter,
electricity etc. For the petitioner, discussion with IDBI Bank officials gave
good level of comfort as he was ex-employee of the bank and there was no ground
of suspicion/distrust. Moreover petitioner is an employee of the bank having
rich exposure in banking and knows the level of technical and physical
inspection done by the bank prior to creation of security, lending, revaluation
of NPA assets, Valuation prior to auction etc on Flat ready for possession
after registration, Bank has prescribed a minimum qualification for empanelment
of valuers. Different qualifications may be prescribed for different classes of
assets (e.g. land & building, plant & machinery, agricultural land,
etc). While prescribing the qualification, banks may take into consideration
the qualifications prescribed under Section 34AB (Rule 8A) of the Wealth Tax Act,
1957.Banks are also guided by the relevant Accounting Standard issued by the
Institute of Chartered Accountants of India. The petitioner given the Quotation
price of such property as of Rs. 55,51,000/- ( Rupees Fifty Five Lakhs and
Fifty One Thousand ) only. Your petitioner enclosing therewith the EMD as asked
for Rs. 5,25,000/- ( Rupees Five Lakhs and Twenty Five Thousand ) only, through
a Demand Draft being no. “006430”, dated 03-12-2012, drawn on AXIS Bank
Limited, Kolkata, in favour of IDBI Bank Limited, payable at Kolkata.
7.
That your petitioner in the said Bid arranged by the IDBI
Bank Limited, on 3rd day of December’ 2014, selected as highest
bidder at the sale price of Rs. 64,75,000/- ( Rupees Sixty Four Lakhs and
Seventy Five Thousand ) only, and bid was confirmed by the Autorized Officer in
favour of the Petitioner vide Letter being Ref. no. IDBI SCB No. 7816 /
Recovery ( GKTPL ), dated 3rd day of December’ 2012, and thereby
asking for payment of Rs. 10,93,750/- ( Rupees Ten Lakhs and Ninety Three
Thousand and Seven Hundred and Fifty ) only by 7th day of December’
2012 and Rs. 48,56,250/- ( Rupees Forty Eight Lakhs Fifty Six Thousand and Two
Hundred and Fifty ) only, by 18th day of December’ 2012.
A Photocopy of Letter being ref. no. IDBI. SCB. No. 7816
/ Recovery ( GKTPL ), dated 3rd day of December’ 2012, issued by the
respondent Bank, is annexed herewith and marked as Annexure P3 to the instant application.
8.
That on 3rd day of December 2012 your
petitioner contacted DGM, GM, Appointed recovery officer and Authorised officer
of the Bank to get the paper, no one was entertaining the request and they
requested to submit 25% of EMD to get copy of the document. This was the moment
when your petitioner lost sense for few seconds. He immediately contacted Home
Loan vertical of IDBI Bank so that he can arrange home loan to pay the
requested amount. But refusal by Authorised Officer of IDBI Bank recovery
department aroused the suspicion in his mind against the property. On 4th
day of December’ 2012, your petitioner tried all available sources to get
property papers at the office of the IDBI Bank Limited, but no one entertaining
his such request as he was not the owner of the said property. Your petitioner
felt depressed and went for discussion to the respondents, and the respondents
intimated that General Manager, would be available only on 8th day
of December’ 2012.
9.
That in view of such facts your petitioner did not pay
the amount as was asked for by the Respondents, and more particularly as
property papers were still not in the hands of your petitioner for inspection.
On 8th day of December, your petitioner met with General Manager,
IDBI Bank Limited, who arranged only Sale Deed number and given the address of
borrower to source other information.
10.
That on 10th day of December’ 2012, the
Respondent Bank, on visit of your petitioner provided the Xerox copies of Sale
Deed, Valuation Report, and Municipal tax receipt of 2009, but did not give
sanctioned municipal plan of building as same was not available with the
respondent bank.
11.
That thereafter your petitioner sent those available
documents for inspection to his learned lawyer, and valuer and whereas on
receipt of those documents, they requested your petitioner for sanctioned
building plan, inventory, panchanama, physical measurement, no due certificate
in favour of Kankani Construction Pvt. Limited etc. for verification and such
request has been forwarded by the petitioner to the respondent bank on 11th
day of December’ 2012, through a letter to the Manager, Recovery Department, of
the respondent Bank, but the same was not acknowledged by him, and informed
your petitioner that he can provide the documents subject to the internal
approval and availability of documents.
12.
That on 14th day of December’ 2012, the manager,
Recovery Department, called your petitioner to discuss the issue with DGM (
Deputy General Manager ), who arranged inventory, and Panchnama, but the DGM
did not supply sanctioned building plan, completion certificate etc. of the property documents and
asked your petitioner to visit the property on 17th day of December’
2012, for property inspection of such documents as was asked for by the
petitioner.
13.
That on 17th day of December’ 2012, while the
Petitioner visited the Recovery Vertical of the Respondent Bank, he allowed
inspection of the property in presence of Manager Arindam Biswas but did not
supply any of the documents to your petitioner, and said to complete the
payment on or before 21st day of December’ 2012, at first.
14.
That the Recovery Department of the Respondent Bank,
shows incapability to provide sanctioned municipal plan of building as same was
not available with the said department. However your petitioner arranged such
sanctioned building plan from Kankani Construction Pvt. Limited ( Promoter of
Garden Tower ).
15.
That after inspection your petitioner received
information from valuer that construction does not match with the given
sanctioned municipal plan of the building being plan no. 2003080070, dated 15th
day of July’ 2003, and there should be one revised building sanctioned plan for
current structure and the valuer asked your petitioner to provide completion /
occupancy certificate of the building.
16.
That your petitioner immediately on 19th day
of December’ 2012, went to the respondent bank and met with the Arindam Biswas Manager,
Recovery Department, and with the Deputy General Manager Sanjog Gokhle, of
Recovery Vertical and asked for those documents. But the Recovery Department
shows incapability to provide revised sanctioned municipal plan of the
building, and occupancy / completion certificate, as the same was not available
with the concern recovery department.
17.
That your petitioner states that Sanctioned municipal
plan and revised building plan, approved completion plan, completion /
occupancy certificate is important part for existence of legal construction. As
per Kolkata Municipal Corporation Rules no person should occupy a building
erected or re-erected or altered under KMC Building Rules, 2009, in respect of
which a completion certificate under rule 29 has not been issued by the Kolkata
Municipal Corporation.
18.
That your petitioner states that such necessary documents
was not available with the Bank at the time of Bid and at the time of
Publication of advertisement, and the same has not ever been acknowledged by
the respondent bank.
19.
That your petitioner communicated such facts to the
General Manager, of the IDBI Bank Limited, through his Letter dated 19th
day of December’ 2012, and requested therein to get a copy of the revised
sanctioned plan of the building and occupancy / completion certificate of the
building.
20.
That on 19th day of December’ 2012, your
petitioner sent mail to the respondent bank as “ Refer our discussion in
morning, Still I have not received final approved municipal sanction plan of
the property and same is also not available with bank. I went to corporation
office also but was not able to get any material information and document. I
would request your support as still I do not have full set of property papers
for inspection. From certain sources I came to know that still completion and
occupancy certificate has not been released for this building and construction
is not done as per sanctioned municipal plan”.
21.
That on 20th day of December’ 2012, your petitioner
sent mail to the respondent bank as “ Further to technical inspection done on
17th day of December’ 2012, I received report that construction does
not match with sanction municipal plan no. 2003080070, dated 15-07-2003.
Revised Sanction plan has also not been approved after erection of building
till date. Further I came to know that completition certificate has not been
issued for Garden Tower, 256, Picnic Garden, Kolkata – 700 039, and as per
Kolkata Municipal Corporation Rules no person should occupy a building erected
or re-erected or altered under KMC Building Rule’ 2009, in respect of which a
completion certificate under rule 29 has not been issued by Municipal
corporation. Above document was not available with the bank at the time of bid
and advertisement and same is not highlighted in the bid and advertisement. I
would request you to arrange the same and give me some time after arranging these
documents for inspection and making the payment”.
A Photocopy of the letter of your petitioner, dated 19th
day of December’ 2012, and a Photocopy of the printout of the email dated 19th
day of December’ 2012, and 20th day of December’ 2012, are
collectively annexed herewith and marked as Annexure
P4 to the instant
petition.
22.
That the Respondent Bank did not reply and or answer on
the representation made by your petitioner. The petitioner again made one
representation dated 8th day of January’ 2013, to the General
Manager, IDBI Bank Limited, stating inter alia described about the encumbrances
as of a) Flat layout and physical structure is different from Sanctioned Floor
layout plan mentioned in Sale Deed being no. 2003080070, dated 15-07-2003, and
initial Sanctioned Floor layout plan is not available with bank. b) Sale deed
does not state anything on revision of sanction plan. c) No mutation has ever
been done by the borrower since there is a problem under continuation as to
sanction of revised plan. d) Revised Sanction plan of the property is not
available and construction is not regularized. e) Approved completion plan is
not available and not even applied for. f) Completion certificate is not
available and not even applied for. g) As per Kolkata Municipal Corporation
Rules no person should occupy a building erected or re-erected or altered under
KMC Building Rules, 2009, in respect of which a completion certificate under
rule 29 has not been issued by Municipal Corporation. So, property is not
legally inhabitable as per KMC Building Rules’ 2009.
A Photocopy of the
Letter dated 8th day of January’ 2013, copy of the Letter being Ref.
no. IDBI.SCB. No. 8916 / Recovery ( GKTPL ), is annexed herewith and marked as Annexure P5 to the instant
writ petition.
23.
That your Petitioner states that such material
encumbrances were never informed to your petitioner by the respondent Bank,
during inspection before commencement of auction and such discrepancies affects
the nature and value of the property.
Even after bid there has been delay in providing property documents and
your petitioner received 1st lot of incomplete set of property
document on 08th day of December’ 2012, and 2nd lot on 14th
day of December’ 2012, and physical inspection for technical valuation with
respect to property documents had happened on 17th day of December’
2012, which caused delay in obtaining legal and technical valuation of the
property. Non availability of states documents leads to serious litigation /
encumbrances and is threat to the existence of the said constructed property.
24.
That your petitioner states that Rule 8(6) and Sub- Rule
(5) paragraph (f) of Security Interest ( Enforcement ) Rule’ 2002, mandates the
Secured creditors to set out in the terms of sale notice and any other thing
which the authorized officers considers it material for a purchaser to know in
order to judge the nature and value of the property, and it would also include
the encumbrances as otherwise he / she will be purchasing the property and
simultaneously buying the litigation as well and an intending purchaser may not
bid in the event he / she came to know of any encumbrance over the property.
25.
That on 21st day of January’ 2013, the
respondent Bank through it’s authorized officer served one Letter being Ref.
no. IDBI.SCB No. 8916 / Recovery ( GKTPL ), dated 21st day of
January’ 2013, upon your petitioner, and thereby asking for the payments of Rs.
59, 50,000/- ( Rupees Fifty Nine Lakhs and Fifty Thousand ) only, within a
period of fifteen days, and also states that in the event of failure the EMD
amount shall be forfeited without notice. It is to state that no reply and or
answer has ever been given by the respondent bank in the said letter to your
petitioner.
A photocopy of Letter being Ref.
no. IDBI.SCB No. 8916 / Recovery ( GKTPL ), dated 21st day of
January’ 2013, is annexed herewith and marked as Annexure P6 to the instant writ petition.
26.
That your petitioner made reply dated 4/2/2013, of the
letter dated 21st day of January’ 2013, given by the Respondent
Bank, and requested for refund of EMD amount of Rs. 5,25,000/- ( Rupees Five
Lakhs and Twenty Five Thousand ) only, which are the hard savings money of your
petitioner.
A photocopy of Letter dated 4/2/2013,
being reply of the Letter dated 21st day of January’ 2013 of the
Respondent Bank, is annexed herewith and marked as Annexure P7 to
the instant writ application.
27.
That on 13/2/2013, your petitioner sent letter to the
respondent Bank and again requested for refund of EMD money to your petitioner.
A photocopy of printout of letter
dated 13/2/2013, is annexed herewith and marked as Annexure
P8 to the instant writ
petition.
28.
That on 13/2/2013, the respondent Bank, through its
authorized officer given a letter being Ref. no. IDBI.SCB. No. 9284/Recovery
(GKTPL), dated 13/2/2013, stating inter
alia in reference to the Letter dated 4th day of February’ 2013,
they cannot accede the request of your petitioner to refund of EMD.
A photocopy of the Letter being Ref. no. IDBI.SCB.
No. 9284/recovery (GKTPL), dated 13/2/2013, issued by the Respondent Bank, is
annexed herewith and marked as Annexure P9
to the instant application.
29.
That on 21/2/2013, your petitioner made a representation
to the respondent Bank, and requested therein for the refund of EMD amount to
your petitioner.
A photocopy of the
representation of your petitioner dated 21/2/2013 is annexed herewith and
marked as Annexure P10 to the instant petition.
30.
That the respondent Bank on 12/2/February’ 2013, again
Published one Public Notice For Sale of Residential Flat at Kolkata, in respect
of Flat No.1, admeasuring 1850 Sq. ft. ( Super Built up area ), on the 8th
floor in Block –B, in the building named “ Garden Tower” with an open car
parking space at the ground floor of the building , in daily news papers and on
website, without refunding the EMD amount to your petitioner, the respondent
Bank put it’s effort at the Second Bid.
A photocopy of Copy
of Second Advertisement of Public Notice for Sale of Residential Flats at
Kolkata, in respect of earlier subjected flat no. 1, dated 12/2/February’ 2013,
is annexed herewith and marked as Annexure
P11 to the instant writ petition.
31.
That on 6/3/2013, your petitioner made one representation
to the Reserve Bank of India on came into knowledge about the second bid public
notice in respect of the said flat No.1,
admeasuring 1850 Sq. ft. ( Super Built up area ), on the 8th floor
in Block –B, in the building named “ Garden Tower” with an open car parking
space at the ground floor of the building, and whereas the respondent Bank vide
it’s Letter being reference no. IDBI. SCB. No. 10286 / Recovery ( GKTPL ), dated
14th day of March’ 2013, denied all grievances of your petitioner,
and confirmed their own purported activities as of correct and denied to refund
the EMD amount to your petitioner.
A photo copy of the
Letter dated 6th day of March’ 2013, made by your petitioner, and a
copy of Letter being reference no. IDBI. SCB. No. 10286 / Recovery ( GKTPL ),
dated 14/3f March’ 2013, issued by the Respondent Bank, are collectively
annexed herewith and marked as Annexure P12
to the instant writ petition.
32.
That your Petitioner made several representation to the
Respondent Bank and Reserve Bank of India during 2013 – 2015, through several
mails, though no favourable reply has ever been made by the respondent Bank or
Reserve Bank of India.
A photocopy of
e-mail during 2013-2015, are collectively annexed herewith and marked as Annexure P13 to the instant writ application.
33.
That your Petitioner approached Banking Ombudsman,
Kolkata, but of no result as the Banking ombudsman rejected the complaint as
complaint was not on the ground of complaint referred to in clause 8 or
otherwise not in accordance with sub clause (3) of clause 9 of the Banking
Ombudsman Scheme 2006, and suggest to take the shelter of other forum to
resolve the grievances of your petitioner.
A photocopy of Complaint to Ombudsman and reply thereof,
are Collectively annexed herewith and marked as Annexure P14 to
the instant petition.
34.
That your Petitioner lodge his complaint with the
Customer Service Department of Reserve Bank of India, and whereas the Customer
Service Department through it’s letter being reference no. 3735 / 13.23.15 /
2013-14, dated 02-01-2014, intimated it’s inability to resolve the issues of
your petitioner as such the related issue of your petitioner did not cover
their powers to intervene into.
A photocopy of the Complaint lodged with the
Customer Service Department of RBI, and the Letter being reference no.
3735 / 13.23.15 / 2013-14, dated 02-01-2014, are collectively annexed herewith
and marked as Annexure P15 to
the instant application.
35.
That your petitioner wrote several letters and
representation to the RBI for intervention into the matter of his complaint
related to the respondent Bank IDBI Bank, but all are in vain.
36.
That your petitioner made one RTI application to the IDBI
Bank, for his queries related to his complaint of the subjected bid / auction,
vide his letter dated 26th day of March’ 2014, and whereas the
Public Information Officer, replied such queries of the petitioner vide Letter
dated 29th day of April’ 2014, being Ref. no. RD/RTI/2014/520,
wherein stated as admitted facts that copy of approved sanction plan is not
available with IDBI Bank, copy of completion certificate and mutation documents
of property are not available with IDBI Bank, and other queries are not replied
as regretted with inability.
A Photocopy of RTI application made to IDBI Bank and reply
thereof, are Collectively annexed herewith and marked as Annexure P16 to
the instant petition.
37.
That your petitioner made one RTI application to the CPIO
of the Reserve Bank of India, vide application dated 19th day of
January’ 2014, and in respect of such application requisite fees has been paid
on 18th day of February’ 2014, and whereas the CPIO of the Reserve
Bank of India, property valuation report of IDBI Bank dated 15-Oct-2012,
clearly shows that Bank had provided sanction plan to valuer Haripriya
Associates Pvt. Limited which contradicts all correspondences of IDBI Bank with
your petitioner, shows misconduct & misrepresentation of IDBI Bank
including the replies provided by IDBI Bank under RTI Act. Valuation report
dated 24-May-2009 of actual disbursement of loan also arouse suspicion on
conduct of official involved in actual loan disbursement to Gurukrupa
Tradeworth Private Limited. your petitioner preferred one appeal against the
CPIO, of the Reserve Bank of India, which is of no result as such the appellate
authority confirm the reply of the CPIO of the Reserve Bank of India.
A photocopy of RTI application to CPIO, RBI, and reply
thereof, are enclosed collectively herewith and marked as Annexure P17 to the instant writ petition.
38.
That your petitioner states that the petitioner can get
refund of the 25% earnest money, deposited with the secured creditor / bank
after procreation as a highest bidder in auction, conducted by the secured
creditor / bank, more particularly while the said property is encumbered, and
such encumbrances has never been shown in the advertisement for sale in public
auction / bid, under the Securitisation and Reconstruction of the Financial
Assets and Enforcement of Security Interest Act’ 2002. and whereas the bidder /
purchaser / petitioner found that the property was duly registered in favour of
the borrower though no mutation has ever been done by the borrower since there
is a problems under continuation as to sanctioned of revised plan in respect of
the apartment, wherein the said property, i.e. Flat situated, also learn that
for the said revised plan the concerned promoter / developer paid duly assessed
penalty to the Kolkata Municipal Corporation, though still awaiting to get such
sanction and completion certificate in
respect of the said newly constructed building / apartment.
39.
That your petitioner states that Notwithstanding above, yet another aspect which have to consider is the
effect of Section 35 of the SARFAESI Act which reads as under : "The
provision of the fact shall have effect, notwithstanding anything inconsistent
therewith contain in any of the law for the time being in force or any
instrument having effect by virtue of any such law." The effect of Section
35 would be that the disposal of the secured assets would be in terms of the
provisions of the SARFAESI Act. Therefore, it may independently examine the
legal provisions of the SARFAESI Act, upon which title is transferred by
issuance of sale certificate without reference to the Transfer of Property Act
since the right under SARFAESI would prevail over the other right. The right is
conferred of all the Bank, as secured creditor to realize money by disposal of the
property, over which the security is created. In case of public auction, the
purchasers are put on notice that sale of properties in question was "as
is where is and as is what is condition". Before commencement of the
auction, the original documents pertaining to the property as well as copies of
other parent documents and the relevant file are made available for all the
participants for inspection. The Bank have to exercise due diligence on the
security before the same is put on sale for the reason to rule out fraud, if
any perpetrated by borrower and to rule out that the property is free from any
encumbrance. Multiple mortgages are created by single borrower with different
Bankers/FI and the secured creditor may or may not be aware of the any encumbrance
on the property despite conducting due diligence. In view of the uncertainty in
secured creditor being unaware of any encumbrance on the date of inspection of
the property by the purchaser, whether the auction of the secured creditor is
immune from challenge while recourse to action under Section 13(4).
40.
That your petitioner states
that Rule 8(5) of the Security Interest (Enforcement) Rule, 2002, the manner of
sale of the immovable secured assets / property include : (a) by obtaining
quotations from the persons dealing with similar secured assets or otherwise
interested in buying the such assets; or (b) by inviting tenders from the
public;(c) by holding public auction; or(d) by private treaty. The relevant
provision of Rule 8(6) of the Security Interest ( Enforcement ) Rules, 2002
which deals with the procedure for bringing the immovable secured assets for
sale is extracted hereunder : "The authorised officer shall serve to the
borrower a notice of thirty days for sale of the immovable assets under sub-rule
(5) : Provided that if the sale of such secured asset is being effected by
either inviting tenders from the public or be holding pubic auction , the
secured creditor shall cause a public notice in two leading newspapers one in
vernacular language having sufficient circulation in the locality by setting
out the terms of sale, which shall include,-(a) the description of the
immovable property to be sold, including the details of the encumbrances known
to the secured creditor;(b) the secured debt for recovery of which the property
is to be sold;(c) reserve price, below which the property may not be sold;(d)
time and place of public action or the time after which sale by any other mode
shall be completed;(e) depositing earnest money as may stipulated by the secured
creditor;(f) any other thing which the authorised officer considers it material
for a purchaser to know in order to judge the nature and value of the
property."
41.
That your petitioner states
that on bare reading of Rule 8(6) makes it very clear as to what are the
relevant particulars to be furnished in the sale notice, as per which the
description of the property to be sold among other particulars including the
details of the encumbrance and any other thing which authorised officer
considers it material for a purchaser to know in order to judge the nature and
value of the property shall be known to the secured creditor by setting out the
same in the public notice. Any asset
sold under the SARFAESI Act is sold on "as is where is" and "as
is what is" basis unless specified otherwise. Sale under SARFAESI is
governed by terms and conditions of sale forming part of the sale process.
42.
That your petitioner states
that the Bank, while publishing its notice for auction sale of the property,
inter-alia incorporates the following and brings to the notice of the
public/bidders : "Sealed tenders by way of submission of offer are invited
from the general public for purchase of the immovable property possession of
which have been taken by the bank under SARFAESI and the rule made there under
on "as is where is" and "as is what is" condition under the
said Act, for realisation of outstanding dues from the borrowers." And
"The Authorised Officer or the Bank shall not be responsible for any
charge , lien, encumbrance, property or any other dues to the Government or
anyone else in respect of property auctioned" and after inviting the
general public for purchase of the property under Public Auction, the following
are the three stages under which payment is made by the successful bidder and
upon completion of sale, the authorised officer shall issue sale certificate :
(1) Earnest money deposit (at the time of bidding), (2) 25 per cent of the
accepted sales price (including EMD) after successful bidding, (3) 75 per cent
of the balance amount within 15 days of the auction.
43.
That your petitioner states
that during the intervening period between the depositing of earnest money and
till the balance sale consideration is paid, the auction bidder/purchaser after
making part payment or full payment , may either demand to refund the amount
from the authorised officer or request to cancel the sale if sale certificate
is already issued on the ground that there exists encumbrance on the property
or on the apprehension that title may not be proper and that the bank may not
be competent to deliver possession of the auction property without encumbrance
and free from any future litigation.
44.
That your petitioner states
that under the above circumstances, enforcement of securities and realising the
liability through non-adjudicatory procedure are per se challenged and
consequently the rights of the secured creditor under SARFAESI are not right in
absolute.
45.
That your petitioner states
that the provision of Section 55(1) of Transfer of Property Act, 1882
stipulates as under : "Rights and liabilities of buyer and seller.-In the
absence of a contract to the contrary, the buyer and the seller of immovable
property respectively are subject to the liabilities, and have the rights,
mentioned in the rules next following, or such of them as are applicable to the
property sold : (1) The seller is bound- (a) to disclose to the buyer any
material defect in the property or in the seller's title thereto of which the
seller is, and the buyer is not, aware, and which the buyer could not with
ordinary care discover; (b) to produce to the buyer on his request for
examination all documents of title relating to the property which are in the
seller's possession or power; (c) ...............................A mere perusal
of the provision would show that duty is cast upon the authorised officer to
disclose to the auction purchaser any material defect in the title, failing
which it could be construed that purchaser was misled.
46.
That your petitioner states
that in Jai Logistic v. The Authorized Officer, Syndicate Bank, the Hon'ble
High Court of Madras directed the Respondent Bank to refund the earnest money
to the Petitioner and suggested that it is for the Bank and financial
institutions to indicate the encumbrance both by way of alienation in respect
of the property or other statutory liabilities of the company or the individual
as the case may be. In this case, the sale notice was published on 7th October,
2009, auction conducted on 9thNovember, 2009 and Petitioner paid earnest money
deposit, however, refused to pay the balance sale consideration when Petitioner
applied for encumbrance on 10thNovember, 2009 and came to know that a
settlement deed had been executed by the owner of the land on 21st September,
2009. The earnest money deposit was forfeited by the Respondent Bank and it was
contended that when the sale notice was issued, the Bank was not aware of the
encumbrance and therefore the publication did not carry the encumbrance. The
Hon'ble High Court while allowing the claim of the Petitioner, distinguished
the judgment of the Hon'ble Supreme Court in United Bank of India v. Official
Liquidator & Others, observed that provisions of the Security Interest
(Enforcement) Rules as applicable in the present case are not applicable to the
official liquidator. Rule 8(6)(f) mandates the secured creditors to set out in
the terms of sale notice any other thing which the authorized officers
considers it material for a purchaser to know in order to judge the nature and
value of the property and the Hon'ble High Court interpreted that the said rule
would also include the encumbrance relating to the property and the intending
purchaser to be put on notice as to the encumbrance, as otherwise he/she will
be purchasing the property and simultaneously buying the litigation as well and
an intending purchaser may not bid in the event he/she came to know of any
encumbrance over the property.
47.
That your petitioner states
that a similar provision governing the Corporation as above is envisaged under
the SARFAESI Act. Section 13(6) of the SARFAESI Act contemplates that any
transfer of a secured asset would be considered as a transfer made by the owner
of such secured asset. Rule 9(10) of the Security Interest (Enforcement) Rule
states that the certificate of sale to be issued by the authorised officer
shall specifically mention that whether purchaser has purchased the immovable
secured asset free from any encumbrance known to the secured creditor or not. A
plain reading of the SARFAESI Act/Rules would cast duty upon the Bank to
furnish those encumbrances which are known to them on the property which are
sold by them. However, Rule 8(6)(f) mandates additional duty on the authorised
officer to make known to the bidders before auction any other thing which the
authorised officer considers it material for a purchaser to know in order to
judge the nature and value of the property. Therefore, now the rule of caveat
emptor is replaced by caveat venditor (seller beware) and when the Bank put the
property on sale, they must show clear title to the said property.
48.
That your petitioner states
that the respondent Bank have misused the terms for “as is where is”. It was a
deliberate concealment of legal position of the title and property. It is clear
that at the inception only the intention of the respondent bank were to conceal
the defective title and property. Therefore the advertisement “as is where is”
created confusion in this present case. It is shows that the petitioner was
interested in participating in the public auction and requested the respondent
bank to provide the copies of the title deeds, sanction plan, and completion
certificate for verification prior to the date of auction but the respondent
bank did not provide it prior to the date of auction, and therefore the
petitioner was unable to verify those such documents related to the property of
subjection auction / bid.
49.
That your petitioner states
that the respondent bank was well aware about the defects and or encumbrances
on the title and on the property of the said auction, and with malafide
intention respondent bank not issued those documents to the petitioner for
verification of legal aspects of title and of the property. Bank’s malafide
intention is evident from the sanctioned plan and Valuation report held with
bank prior to auction and comparison of both the sale advertisement. Your
petitioner has sourced valuation report from RBI through RTI and it was evident
from valuation report that IDBI Bank was holding sanction plan but they neither
provided the same to petitioner nor disclosed the information on sanction plan
to the petitioner. At the time of publishement of 2nd advertisement,
they incorporated clause “as is where
basis, as is what basis……..without recourse”. This act or behavior of PSU
banking official is even against the banking integrity and strong
disqualification for being a banker. Disclosure of non-availability of
Property, completion sanction plan, completion & occupancy certificate in
sale advertisement was sufficient for not appearing in bid by your petitioner.
50.
That your petitioner states
that it is quite surprising to note that the respondent bank issued the copy of
title deed after completion of auction process and did not able to provide
other related documents i.e. sanctioned plan, completion certificate and
others, and therefore such defective title and property is of no use for the
petitioner.
51.
That your petitioner states
that even after successful bidding your petitioner tried his level best to get
the copy of the relevant and related documents of the property, and the
respondent bank failed to provide those such documents to your petitioner. Life
of the petitioner was hail during that period only because of the
non-disclosure of facts in sale advertisement.
It was very clear that your petitioner was buying flat for end use and
he is salaried person having tight professional schedule and transferrable job.
He would never invest a single paise of his hard earned savings and appear in
any such offer of sale where property documents are defective and may lead to
any kind of litigation.
52.
That your petitioner states
that the respondent bank is only responsible for such debacle by which your
petitioner did not get house and sustained loss despite he was a successful
bidder and suffering from mental agony and harassments, and for such
suffering the Petitioner assessed a sum of Rs. 5,00,000/- ( Rupees Five Lakhs )
only, plus FD interest as applicable from the date of payment to the date of
refund, to get from the Opposite Parties / Respondent Bank, in the
circumstances, as described herein above.
53.
That your petitioner states
that the respondent bank publishing or advertising such defective title
property for auction sale amounts to unfair trade practice and deficiency in
services as underlying consideration was unlawful. Contract becomes void if
consideration is unlawful. Hence, the action of the respondent bank in
forfeiting the earnest money is an illegal act.
54.
That the Petitioner states
and submits that your petitioner is
victim of the breach caused by the Respondent Bank, and great looser as
such your petitioner is still suffering since did not get flat, since 3rd
day of December’ 2012, from the Opposite Parties / Respondents, herein.
55.
That the Petitioner states and submits that the purported
activities of the Respondents / Opposite Parties from the beginning of the
auction, they motivated, and intentionally cause the breach since the date of
publication or advertisement, as such they are not cause any delivery and making
any endavour to supply the relevant and or related documents or papers of the
property, to your petitioners till date.
56.
That the Petitioner states and submits that the purported
activities of the Opposite Parties, which shows and established the deeds and
or acts of their deficiency in services in publishing or advertising at some
specific terms and conditions though willfully and deliberately failed to carry
out the same and / or failed to perform in accordance with the prescribed law.
57.
That the Petitioner states and submits that the
Petitioner solely seeks to get the refund of EMD ( Earnest Money Deposit ) with
the prevailing Banking interest therewith from the date of making actual
payments thereof, as the subjected flat of the said auction has been sold out
by the respondent bank through the second time auction / bid, conducted in the
month of February’ 2013.
58.
That the Petitioner states and submits that your
Petitioner approached before the Hon’ble State Consumer Disputes Redressal
Commssion, West Bengal, through an application under Section 17 of the Consumer
Protection Act’ 1986, vide Case being no. CC / 327 / 2014 { Santosh Kumar
Tiwari – Versus – IDBI Bank Limited & Others }, which on hearing at the
stage of Admission of the said Case before the Hon’ble Commission, on 10th
day of September’ 2014, the Hon’ble Commission passed the necessary order as
“the petition of Complaint is dismissed being not admitted”. Holding that the
Hon’ble Commission have no jurisdiction to dealt with.
A photocopy of the Order dated 10-09-2014,
passed by the Hon’ble State Consumer Disputes Redressal Commission, West
Bengal, in CC/327/2014, is enclosed herewith and marked as Annexure P18 to the instant writ petition.
59.
That
Your petitioner states that it is a settled principle of law that the
Government Bank while entering into contracts is expected not to act like a
private individual but should act in conformity with certain healthy standards
and norms and such actions should not be arbitrary, irrational or irrelevant.
60.
That
Your petitioner states that the impugned non action or in action is either a
fruit of the mala fide intention of the authorities or without applying
mind and in both cases it is liable to be set aside.
61.
That
Your Petitioner states that constitutional powers carry corresponding
obligations with them. This is the rule of law, which regulates the operation
of organs of Government functioning under a Constitution.
62.
That
Your petitioner states that in a case like the present, it is clearly shown
that the impugned inaction is arbitrary and, therefore, violative of Article
14, 19, & 21, of the Constitution, there can be no impediment in striking
down the impugned act irrespective of the question whether an additional right,
contractual or statutory, if any, is also available to the petitioner.
63.
That
Your petitioner states that under public law, it is the dispute between the
citizen or a group of citizens on the one hand and the State or other public
bodies on the other, which is resolved. This is done to maintain the rule of
law and to prevent the State or the public bodies from acting in an arbitrary
manner or in violation of that rule. The exercise of constitutional powers by
the High Court and the Supreme Court under Articles 226 and 32 has been categorised
as power of "judicial review".
64.
That
Your petitioner states that every executive or administrative action of the
State or other statutory or public bodies is open to judicial scrutiny and the
High Court or the Supreme Court can, in exercise of the power of judicial
review under the Constitution, quash the executive action or decision which is
contrary to law or is violative of fundamental rights guaranteed by the
Constitution.
65.
That
Your petitioner states the expanding horizon of Article 14 read with other
articles dealing with fundamental rights, every executive action of the
Government or other public bodies, including instrumentalities of the
Government, or those which can be legally treated as "Authority"
within the meaning of Article 12, if arbitrary, unreasonable or contrary to
law, is now amenable to the writ jurisdiction of this Court under Article 32 or
the High Courts under Article 226 and can be validly scrutinised on the
touchstone of the constitutional mandates.
66.
That
Your petitioner states that constitutional powers carry corresponding
obligations with them, and this is the rule of law which regulates the
operation of organs of the Governments functioning under the Constitution.
67.
That
Your petitioner states that the Government functions through its officials and
so long they are acting bona fide in pursuance of Government policy the
Government cannot be permitted to disown it as a citizen can have no means to
know if what was being done was with tacit approval of the Government.
68.
That Your
petitioner states that Welfare state like our republic is duty bound to protect
the citizen from unnecessary harassment. The Preamble of the Constitution
embodies the concept of social justice and equality and Constitution guarantee
equality before law.
69.
That
Your petitioner submits that when public wrongs are inextricably mixed up
justice requires the victim to take recourse of Article 226.
70.
That
Your Petitioner is enclosed a photo copy of Sale Deed, photocopy of Form 8 of the
Companies Act’ 1956, and photocopy of valuation report of the respondent Bank,
herewith and marked as Annexure P19 to the instant writ petition.
71.
That
Your Petitioner crave leave to produce the Sanctioned plan being no.
2003080070, dated 15-07-2003, at the time of hearing before the Hon’ble Court,
wherein your petitioner highlighted the difference in map registered with sale
deed and sanctioned plan, which ultimately forced the petitioner for not buying
the property from the respondent bank.
72.
That
being aggrieved by and dissatisfied with Impugned Clandestine acts through letter being Ref.
no. IDBI.SCB. No. 9284 / Recovery ( GKTPL ), dated 13th February’
2013, the petitioner herein
begs to move this application under Article 226 of the Constitution of India on
the following amongst other
G R O U N D S
I.
For
that the entire process is irreconcilable with what is right or reasonable or
the terms of which are so unfair and unreasonable that they ought to shock the
conscience of This Hon’ble Court.
II.
For that during the intervening period between the depositing of earnest
money and till the balance sale consideration is paid, the auction
bidder/purchaser after making part payment or full payment , may either demand
to refund the amount from the authorised officer or request to cancel the sale
if sale certificate is already issued on the ground that there exists
encumbrance on the property or on the apprehension that title may not be proper
and that the bank may not be competent to deliver possession of the auction
property without encumbrance and free from any future litigation.
III.
For that under the above
circumstances, enforcement of securities and realising the liability through
non-adjudicatory procedure are per se challenged and consequently the rights of
the secured creditor under SARFAESI are not right in absolute.
IV.
For that the provision of
Section 55(1) of Transfer of Property Act, 1882 stipulates as under :
"Rights and liabilities of buyer and seller.-In the absence of a contract
to the contrary, the buyer and the seller of immovable property respectively
are subject to the liabilities, and have the rights, mentioned in the rules
next following, or such of them as are applicable to the property sold : (1)
The seller is bound- (a) to disclose to the buyer any material defect in the
property or in the seller's title thereto of which the seller is, and the buyer
is not, aware, and which the buyer could not with ordinary care discover; (b)
to produce to the buyer on his request for examination all documents of title
relating to the property which are in the seller's possession or power; (c)
...............................A mere perusal of the provision would show that
duty is cast upon the authorised officer to disclose to the auction purchaser
any material defect in the title, failing which it could be construed that
purchaser was misled.
V.
For that your petitioner
states that in Jai Logistic v. The Authorized Officer, Syndicate Bank, the
Hon'ble High Court of Madras directed the Respondent Bank to refund the earnest
money to the Petitioner and suggested that it is for the Bank and financial
institutions to indicate the encumbrance both by way of alienation in respect
of the property or other statutory liabilities of the company or the individual
as the case may be. In this case, the sale notice was published on 7th October,
2009, auction conducted on 9thNovember, 2009 and Petitioner paid earnest money
deposit, however, refused to pay the balance sale consideration when Petitioner
applied for encumbrance on 10thNovember, 2009 and came to know that a
settlement deed had been executed by the owner of the land on 21st September,
2009. The earnest money deposit was forfeited by the Respondent Bank and it was
contended that when the sale notice was issued, the Bank was not aware of the encumbrance
and therefore the publication did not carry the encumbrance. The Hon'ble High
Court while allowing the claim of the Petitioner, distinguished the judgment of
the Hon'ble Supreme Court in United Bank of India v. Official Liquidator &
Others, observed that provisions of the Security Interest (Enforcement) Rules
as applicable in the present case are not applicable to the official
liquidator. Rule 8(6)(f) mandates the secured creditors to set out in the terms
of sale notice any other thing which the authorized officers considers it
material for a purchaser to know in order to judge the nature and value of the
property and the Hon'ble High Court interpreted that the said rule would also
include the encumbrance relating to the property and the intending purchaser to
be put on notice as to the encumbrance, as otherwise he/she will be purchasing
the property and simultaneously buying the litigation as well and an intending
purchaser may not bid in the event he/she came to know of any encumbrance over
the property.
VI.
For that a similar provision
governing the Corporation as above is envisaged under the SARFAESI Act. Section
13(6) of the SARFAESI Act contemplates that any transfer of a secured asset
would be considered as a transfer made by the owner of such secured asset. Rule
9(10) of the Security Interest (Enforcement) Rule states that the certificate
of sale to be issued by the authorised officer shall specifically mention that
whether purchaser has purchased the immovable secured asset free from any encumbrance
known to the secured creditor or not. A plain reading of the SARFAESI Act/Rules
would cast duty upon the Bank to furnish those encumbrances which are known to
them on the property which are sold by them. However, Rule 8(6)(f) mandates
additional duty on the authorised officer to make known to the bidders before
auction any other thing which the authorised officer considers it material for
a purchaser to know in order to judge the nature and value of the property.
Therefore, now the rule of caveat emptor is replaced by caveat venditor (seller
beware) and when the Bank put the property on sale, they must show clear title
to the said property.
VII.
For that the respondent Bank
have misused the terms for “as is where is”. It was a deliberate concealment of
legal position of the title and property. It is clear that at the inception
only the intention of the respondent bank were to conceal the defective title
and property. Therefore the advertisement “as is where is” created confusion in
this present case. It is shows that the petitioner was interested in
participating in the public auction and requested the respondent bank to
provide the copies of the title deeds, sanction plan, and completion
certificate for verification prior to the date of auction but the respondent
bank did not provide it prior to the date of auction, and therefore the
petitioner was unable to verify those such documents related to the property of
subjection auction / bid.
VIII.
For that the respondent bank
was well aware about the defects and or encumbrances on the title and on the
property of the said auction, and with malafide intention respondent bank not
issued those documents to the petitioner for verification of legal aspects of
title and of the property. Bank’s malafide intention is evident from the
Valuation report and sanction plan was held with bank prior to auction and
comparison of both the sale advertisement. At the time of publishement of 2nd
advertisement, they incorporated clause
“as is where basis, as is what basis……..without recourse”. This act or behavior
of PSU banking official is even against the banking integrity and strong
disqualification for being a banker. Disclosure of non-availability of
Property, completion sanction plan, completion & occupancy certificate in
sale advertisement was sufficient for not appearing in bid by your petitioner.
IX.
For that it is quite
surprising to note that the respondent bank issued the copy of title deed after
completion of auction process and did not able to provide other related
documents i.e. sanctioned plan, completion certificate and others, and
therefore such defective title and property is of no use for the petitioner.
X.
For that even after successful
bidding your petitioner tried his level best to get the copy of the relevant
and related documents of the property, and the respondent bank failed to
provide those such documents to your petitioner. Life of the petitioner was
hail during that period only because of the non-disclosure of facts in sale
advertisement.
XI.
For that it was very clear
that your petitioner was buying flat for end use and he is salaried person
having tight professional schedule and transferrable job. He would never invest
a single paise of his hard earned savings and appear in any such offer of sale
where property documents are defective and may lead to any kind of litigation.
XII.
For
that in the sphere of contractual relations, the State, its instrumentality,
the public authorities are enjoined to act in a manner, which is fair, just and
equitable.
XIII.
For
that The Government, while entering into contracts is expected not act like a
private individual but should act in conformity, with which certain healthy
standards and norms and such actions should not be arbitrary, irrational and
irrelevant.
XIV.
For
that every executive or administrative action of the State or other statutory
or public bodies is open to judicial scrutiny and the High Court or the Supreme
Court can, in exercise of the power of judicial review under the Constitution,
quash the executive action or decision which is contrary to law or is violative
of fundamental rights guaranteed by the Constitution.
XV.
For
that the expanding horizon of Article 14 read with other articles dealing with
fundamental rights, every executive action of the Government or other public bodies,
including instrumentalities of the Government, or those which can be legally
treated as "Authority" within the meaning of Article 12, if
arbitrary, unreasonable or contrary to law, is now amenable to the writ
jurisdiction of this Court under Article 32 or the High Courts under Article
226 and can be validly scrutinized on the touchstone of the constitutional
mandates.
XVI.
For
that constitutional powers carry corresponding obligations with them, and this
is the rule of law which regulates the operation of organs of the Governments
functioning under the Constitution.
XVII. For that Government functions
through its officials and so long they are acting bona fide in pursuance of
Government policy the Government cannot be permitted to disown it as a citizen
can have no means to know if what was being done was with tacit approval of the
Government.
XVIII.
For
that the Government while entering into contracts is expected not to act like a
private individual but should act in conformity with certain healthy standards
and norms and such actions should not be arbitrary, irrational or irrelevant.
XIX.
For
that it is a settled principle of law that in contractual relations, the State
does not stand on the same forting as a private person and the State, in
exercise of its various functions, is governed by the mandate of Article 14,
which excludes arbitrariness in State Actions and requires the State to act
fairly and reasonably and the State has to satisfy this criterion.
73.
That
Your petitioner states that the act of the respondent has left him with no
choice as such in the facts and circumstances of the present, any demand for
justice in writing will be nothing but an idle formality.
74.
That
your petitioner has no choice since there are no other equally, effective,
speedy, efficacious, inexpensive, suitable and adequate alternative remedy
available and the relief as prayed for if granted will be adequate.
75.
That
Your petitioner states that the Your petitioner has not moved any other
application before This Hon’ble Court on the self same cause of action.
76.
That
the cause of action or part of cause of action has arisen within the Appellate
jurisdiction of this Hon’ble Court.
77.
That
Your petitioner states that the records of the case are lying with the
Appellate Side Jurisdiction of This Hon’ble Court.
78.
That
Your petitioner submits that considering the fact that the instant petitioner
has no time left for exhausting all departmental and procedural remedies is
compelled to file the instant application to settle the grievances and are accordingly advised to
prefer the instant application before The Hon’ble High Court for exercising the
writ Jurisdiction.
79.
Your
petitioner states that there is no other alternative and speedy relief open to
your petitioner and the reliefs as prayed for, if granted would afford complete
relief to your petitioner.
80. Your petitioner states that that
the balance of convenience and in convenience rests entirely in favour of your
petitioner in granting the interim order as prayed for.
81.
That
Your petitioner submits that unless The order as prayed for be granted by this
Hon’ble Court, your petitioner will suffer irreparable loss and injury.
82.
That your Petitioners crave leave to produce all other
relevant documents and / or papers at the time of hearing, of the case matter
before the Hon’ble Court.
83.
That
this application is made bona fide and in the interest of
justice.
In the
circumstances as aforesaid your petitioner most humbly and respectfully prays
that your Lordship would be graciously pleased to issue:-
a)
a writ
in the nature of mandamus commanding the respondents, particularly the
respondent no. 2 to refund the EMD amount of Rs. 5,25,000/- ( Rupees Five Lakhs
and Twenty Five ) only, with prevailing Banking rate of interest since the date
of actual payment thereof to till the date of realization, to your petitioner ;
b)
a writ
in the nature of mandamus commanding the respondent no. 2, to pay Compensation
amount of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, for harrashment, to your
petitioner;
c)
A writ
in the nature of Certiorari by directing the respondents to transmit the entire
records before This Hon’ble Court and to certify the same so that after
perusing the same conscionable justice may be administered by issuing necessary
direction;
d)
Rule
NISI in terms of prayers (a), and (b) above;
e)
Ad-interim
order of injunction by directing the respondents and each of them his servants,
agents and sub-ordinates not to give any effect to the Order being Letter Ref.
no. IDBI.SCB. No. 9284 / Recovery ( GKTPL ), dated 13th February’
2013;
f)
Such
further Order/Orders, Direction/Directions be given as to this Hon’ble Court
may deem fit and proper;
And Your petitioner as in duty
bound shall ever pray.
A F F I D A V I T
I, Shri Santosh Kumar
Tiwari, Son of Sri BalramTiwari, aged about 35 years, by faith Hindu, by
Occupation Service, residing at 2nd Floor, P-304/D, CIT Road, Scheme
VI M, Kankurgachi, Kolkata – 700 054, do hereby solemnly affirm and
say as follows: -
1.
That I am the petitioner in the instant case, I am well-acquainted with
the facts and circumstances of the case and as such I am competent to affirm
this affidavit.
2.
That
the statements made in Paragraphs 1, 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15,
16, 17, 18, 23, 34, 35, 50, 51, 54, 55, 56, 57, 71, 72, 73, 74, 75, 77, 78, 79,
and 80 above are true to my knowledge, those made in Paragraphs 3, 7, 19, 20,
21, 22, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 49, 58, and 76 above are
true on the basis of records and the rest are my humble submissions before This
Hon’ble Court.
Prepared
in my office Deponent
Advocate Clerk
to
Advocate
Solemnly
affirmed before me
this day of December,
2015
C
O M M I S S I O N E R
DISTRICT: NORTH
24-PARGANAS
IN THE
HIGH COURT AT CALCUTTA
CONSTITUTIONAL
WRIT JURISDICTION
APPELLATE
SIDE
W. P. No.
(W) of 2015
Santosh Kumar Tiwari
…………. Petitioner
Versus
IDBI
Bank Limited & Others
……………….
Respondents
An application under Article 226
of the Constitution of India
Ashok
Kumar Singh,
Bar Association,
Room No. 15,
High Court, Calcutta,
Mobile No. 98368 29666 / 9883070666
E-mail : aksinghadvocate@rediffmail.com
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