IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 29.01.2024
Pronounced on:31.01.2024
WP(C) No.07/2023
MS. GOUSIA TRADERS PETITIONER(s)
…
Through: Mr. Mudasir Bin Hassan. Advocate.
V/s
THE J&K BANK LTD. & ORS.
…RESPONDENT(S)
Through: Mr. Adil Asmi, Advocate.
CORAM:
HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
(JUDGMENT)
1. Heard learned counsels for the parties.
2. The petitioner- a proprietary concern had availed a cash credit
facility from the respondent-Bank and continued to deposit the
installments in accordance with the terms and conditions of the sanction
of facility accorded by the respondent-Bank. It is stated that in the year
2018, the Aircel-company was declared bankrupt, as a result of which,
the petitioner suffered huge loss. Thereafter due to abrogation of Article
370 and Covid-19 Pandemic, financial health of the petitioner-concern
further deteriorated.
3. In the year 2021, the petitioner took money from the private
financiers for reviving its business. The petitioner, as such, approached
the respondent Bank in the year 2022 informing them about the loss
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suffered by the petitioner and apprised the Bank that it was ready to
make settlement with the Bank but the Bank officials, instead of
showing any sympathy towards the petitioner, started harassing and
humiliating the petitioner. Thereafter the petitioner approached the
Secretary, Legal Services Authority, Pulwama, for taking a sympathetic
view. The Branch Manager of the respondent Bank appeared before the
District Legal Services Authority and stated that no settlement was
possible and the petitioner can approach the Bank authorities for
appropriate adjustment of the accounts. The petitioner thereafter
submitted a legal notice-representation with the respondents for taking a
sympathetic view in the matter by waving the interest from the year
2018 and further permitting the petitioner to liquidate the principal
amount in easy installments.
4. The petitioner further claims to have submitted another
representation dated 14.12.2022 with the respondents but to no effect.
The petitioner, as such, has filed the present writ petition for the
following reliefs:
I. Issue a writ of Mandamus or any other appropriate
writ order or direction, the respondents be directed
to re-structure the CC account bearing No.
047602010000082 of the petitioner firm so that it
would be in a position to pay installments regularly.
II. By issuance of writ of Mandamus or any other
appropriate writ order or direction, the respondents
be directed to extend the benefit of One Time
Settlement Scheme of 2022 to the petitioner firm
also so that the petitioner would be in a position to
settle the accounts with the respondent bank and
pay the installments regularly thereof.
III. By issuance of writ of mandamus or any other
appropriate writ order or direction, the respondents
be directed not to harass the petitioner or its
guarantors and not to deduct any amount from
their salary.
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5. The respondents have filed the response stating therein that the
writ petition is not maintainable because none of the rights of the
petitioner has been infringed or invaded by the respondents. It is stated
that the petitioner had been enjoying cash credit facility for distribution
of Aircel products in District Pulwama since 2005 with limit of Rs.15.00
lacs, which was subsequently enhanced to Rs.45.00 lacs in the year
2017. The facility was sanctioned against the mortgage of two storied
shop along with land measuring 02 marlas comprising Survey
No.2145/1436 situated at Main Market, Pulwama, and third-party
guarantee of two persons. It is stated that in order to help the petitioner
to mitigate the loss suffered by it, the respondent Bank supported the
petitioner properly and even disbursed an additional amount of Rs.8.99
lacs in the form of GECL facility with moratorium of one year as re-
structured loan to revive its business. It is further stated that the
petitioner never approached the respondent-Bank for re-structuring of
the loan account but requested for settlement of the account. In the year
2022, the petitioner approached the respondent Bank for One Time
Settlement but as per the policy of the Bank, OTS cannot be done in
accounts which are standard and, as such, the proposal was declined
after consultation with the Law Department of the respondent Bank. The
respondents have further stated that the mortgaged property is valued at
Rs.65.75 lacs as per valuation report dated 05.08.2022 i.e. well above the
loan amount, therefore, OTS is not possible in the instant case.
6. From the record, it is evident that the petitioner has availed cash
credit facility of Rs.45.00 lacs from the respondent Bank. The petitioner
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has also not denied to have received an additional amount of Rs.8.99
lacs on account of GECL facility with a moratorium of one year from the
respondent Bank, as averred in the response filed by the respondents.
-Performing
The account of the petitioner has not been declared as ‘Non
Asset’. The relationship between petitioner and the respondents is that of
creditor-debtor governed by the terms and conditions of the grant of
facility by the respondent-bank. It is admitted by the petitioner that the
loan has been secured by the guarantee. The petitioner has not denied
that his account is standard and in view of the fact that the relationship
between petitioner and the respondent Bank in respect of liquidation of
the loan facility is governed by the agreement between them, this Court
cannot issue any direction to the respondent Bank to re-structure the CC
Account of the petitioner as it would amount to modifying the terms and
conditions of the facility granted by the bank and also no direction can
be issued against the respondent-bank to extend the benefit of OTS of
2022 to the petitioner. The petition is found to be misconceived, as such,
the same is dismissed.
(RAJNESH OSWAL)
JUDGE
Srinagar
31.01.2024
“Bhat Altaf, PS”
Yes/No
Whether the order is reportable: