1. Sri D.K. Pathak, advocate assisted by Sri P.K. Bajpai, advocate has appeared for Kotak Mahindra Bank and has produced the original loan
agreement executed by the I.C.I.C.I. Bank and the deed of assignment executed by the I.C.I.C.I. Bank transferring the loan amount to Kotak
Mahindra Bank. In the two documents the lender Bank includes assigns, and therefore, the I.C.I.C.I. Bank had full right to assign the present loan
to Kotak Mahindra Bank Ltd.
2. In view of the above, we are of the considered opinion that the Kotak Mahindra Bank was well within its right to take proceedings under the
provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
3. The petitioner was granted loan of Rupees 5,45,000/- by the respondent Bank. According to the petitioner, due to unforeseen circumstances
and reasons beyond his control, he could not repay the amount due in time. According to him, prior to default he had regularly deposited the
amount with the Bank. Now the Bank is proceeding against the petitioner under the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter referred to as ""the Act"") for the realisation of loan amount etc.
4. We have heard Sri Dileep Kumar Mishra, learned Counsel for the petitioner and Shri Maneesh Trivedi and Sri P.K. Bajpai, learned Counsel for
the respondent-Banks and have perused the averments made in the writ petition.
5. Learned Counsel appearing for the petitioner states that the petitioner is prepared to repay the entire outstanding dues along with interest and
expenses on pro-rata basis in instalments.
6. The learned Counsel appearing for the respondent-Bank submitted that although the petition is not maintainable since sufficient opportunity has
already been given to the borrower for clearing up the outstanding dues but the Bank has no objection if some indulgence is given by this Court
regarding payment of dues in instalments as the bank is interested in realisation of its dues.
7. We are aware that Hon''ble the Apex Court in Civil Appeal No. Nil of 2010 arising out of SLP (c) No. 10145 of 2010 United Bank of India v.
Satyawati Tondon and Ors., decided on 26.07.2010 has held that the High Courts should restrain themselves from staying the recovery
proceedings started under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, by exercising
their powers under Article 226 of the Constitution. If the High Courts stay the recovery proceedings under the aforesaid Act then the very purpose
of enacting the said Act will be frustrated. It has further been held that Section 13 of the SARFAESI Act contains detailed mechanism for
enforcement of security interest, in which not only the right to file objections against the notice u/s 13(2) has been provided but at the same time an
effective remedy has further been provided u/s 17 of the said Act.
8. We have given our thoughtful consideration to the said judgment of the Apex Court and various submissions made by the learned Counsel for
the parties. The object of the Act is to provide speedy recovery of the loans advanced by the financial institutions and the Banks by selling of the
security which has been offered. This provision even though has been enacted for the benefit of the Bank and financial institutions but appears to be
a time consuming process and further in the auction the property is sold at a throw away price and after the amount is realized from such an
auction, it may not be sufficient to clear the entire outstanding dues and in that event the Bank/Financial Institution would again have to take
recourse to filing a claim petition before the Debt Recovery Tribunal or a regular suit in the Civil Court, as the case may be, which will again be a
time consuming process. In the case at hand we are not staying the recovery proceeding or deciding the dispute but giving an opportunity to the
defaulter/guarantor to pay the entire outstanding dues on the basis of consent given by the petitioner and the Bank.
9. As the petitioner himself has volunteered to clear off the entire outstanding dues along with interest, penal interest and expenses on pro-rata
basis in instalments and has undertaken to pay the regular instalments as and when they become due, taking into consideration the solemn
undertaking given by the petitioner as well as the consent given by the counsel for Bank, we consider it appropriate and in the interest of justice
that a last opportunity be afforded to the petitioner to clear the entire outstanding dues in instalments. The Bank is only interested in recovering its
money and if the petitioner is ready and willing to clear off the outstanding dues, we see no reason as to why the petitioner''s property should be
put to auction.
10. We, therefore, disposed of the writ petition with the following directions:
1. The petitioner will clear off the entire outstanding dues along with interest, penal interest and expenses on pro-rata basis.
2. The entire outstanding dues shall be paid in four equal instalments. The first instalment shall be paid within a month from today and thereafter, the
three remaining instalments shall be paid quarterly.
3. Initially the recovery proceeding is stayed for a month. On depositing the first instalment, impugned proceeding shall remain stayed up to the
date of next instalment and the process shall continue until the last instalment has been paid.
4. If the petitioner deposits the entire amount as undertaken by him in the manner indicated above, the proceedings shall stand withdrawn.
5. If the petitioner fails to deposit the amount of any one instalment within the stipulated period the bank shall at liberty to proceed in accordance
with law.
6. The cost and recovery charges, if any, shall be paid along with the last instalment.
11. It is made clear that this order has been passed on the statement made by the learned Counsel for the petitioner as well as learned Counsel for
the bank and we have not adjudicated the claim on merits.
12. The writ petition is disposed of with the aforesaid direction and observation.