Condonation of Delay: Post-dismissal of HC suit for restoration
I am senior citizen of 76 residing in Thane, near Mumbai.
A PS Bank's HC Suit filed in 1992 against my family P Ltd Co. for Rs.8 Lakhs was dismissed ex-parte in Mar-2011. An amount of Rs.2.6 Lakhs was paid in 1995 as per HC interim order to the Court Receiver as part payment at the interim stage.
The HC order of Mar-2011 closed the suit, handing over physical possession of the Co.'s property from the Court Receiver to me, on behalf of the Co., which was implemented in Jun-2011.
Thereafter, I discovered that the Mortgage of the factory land and building, given to the Bank in early 70's had not been discharged.
Despite my repeated offers (written and personal) to settle the suit as per RBI's OTS 2000 scheme, the Bank have not replied or reponded till now. After rejecting my specific offer in 2001,without giving any reason, not asingle letter or Notice have been replied.
My last notice in Apr-2014 to the CMD of the Bank to hand over discharge of the mortgage has not been acknowledged or replied.
I can't file a suit in the city civil court just to get the mortgage.
Can I file a Writ petition to get the mortgage, and or get refund of the Rs.2.6 Lakhs, and or get compensation for mental agony and harassment etc.?
My email is firstname.lastname@example.org. My Home phone No. is 022-21717227
Asked 2 years ago in Civil Law from Thane, Maharashtra
1) if suit has been dismissed you have to apply for release of amount of Rs 2.6 lakhs to the court receiver
2) if said amount has been invested as per court orders you would be entitled to refund with interest .
3) if you have not paid bank dues bank wont release the mortgaged properties .
4) if you want to claim compensation for mental agony and harassment you have to file suit for damages
1. Since the suit has been dismissed you can apply to the court to release the amount which you had paid in pursuance of the interim order of the court and which is lying with the court receiver. If the order dismissing the suit ex-parte has been challenged by the bank then the amount will not be released.
2. A writ petition cannot be filed to get the mortgage.
3. You have to file a suit to get the mortgage properties released. To recover the amount of Rs.2.6 lakhs you have to apply to the court to order the court receiver to release the amount to you. No writ petition will lie for either of these two reliefs.
1. You have paid the said Rs.4.2 lakhs to the Court receiver before the case was dismissed,
2. So, you shall have to file an application for getting the said amount released from the Receiver which uou had paid as per Court order,
3. Has the outstanding dues of the Bank has been paid by you? If yes, you can demand the deed of the property mortgaged and file an application for the same,
4. If not, then you shall have to clear of your dues to the mortgaee Bank,
5. The Bank has already rejected your OTS proposal,
6. It is not mandatory to reply to all your notices sent to the Bank.
Sorry. But the title of my Q is only indirectly related to its contents, due to some mental cobwebs.
a) I am 76 and I have time to file a suit and wait for another 20-25 years.
b) I have only 3 daughters, all professional and married and earning more than me.
c) All my son-in-laws are the same. None of them is at all interested enough to know any facts / background of the matter.
d) Who will brief the advocates to fight the case after my death?
e) The property is today worth 100 times the notional collateral debt (which I am advised, has been extinguished with the dismissal of the suit).
f) My main problem is "How to bring the Bank to the table for releasing the mortgage, so I can sell my co. with the property?"
g) The Bank have gone back twice on their oral offers by their AGM and GM for Rs.5.36 Lakhs and Rs.11 Lakhs in 2009 and 2010, before the suit was dismissed. After the dismissal, the first letter to the back informing of dismissal and asking them to discharge the Mortgage not rel;ied and simply an application to HC for restoration of the suit and condonation of the delay, without serving any notice to me or my Co. The Bombay HC on hearing in 2014, said that the jurisdiction of the HC has since been increased to Rs.1 Crore and to serve the notice to the defendants in the suit and file a fresh application in the City Civil Court, which the bank has yet to do.
g) After that I deposited the balance amount offered by me in 2001 under RBI's OTS scheme, Rs.2.2 Lakhs (though not legally due), as FD, pledged to ICICI Bank. I served a Notice to the CMD of the Bank with a copy of the FD receipt, asking the Bank to discharge the mortgage across the table to get the amount of the FD in Apr-2014. The Bank did not even reply.
I have done all these legally as advised by Senior Advocates in High Courts.
I want some smart Advocate to think "OUT OF THE BOX" which gives me a solution of the problem.
All the legal advise given suggest going to the courts, which I DO NOT WANT, as I wlll loose any other recourse I will then fall into a LEGAL TRAP with no solution before I die.
Asked 2 years ago
1) since you are a senior citizen you can make application to court for expedited hearing of your case .
2) application made to court receiver for release of Rs 2.6 lakhs wont take 20 years to be disposed of
3) in the event your legal heirs dont want to proceed with the case on your demise proceedings would abate . it is not necessary that your legal heirs attend court on each and every date if they continue the proceedings on your demise
4) since the bank has yet to take any steps for restoration of suit it is in your interest to personally met the concerned officers of the bank to amicably resolve he matter .
5) try to catch hold of some recently retired officers of bank who have started consultancy work after retirement to expedite final settlement
1. The Bank is expected to file a fresh application claiming their dues and in such event the result will be unpredictable,
2. As an empanelled lawyer of few PSU Banks, I have experienced that they want to get rid of Court cases if they are given a way out,
3. So, it is suggested that submit an improved OTS proposal before the Bank after negotiating with them,
4. You can get desirable result duly avoiding Court.
1. Your only remedy under the framework of law is to apply to the court to release the amount lying with the court receiver. This should not take more than a few months.
2. After your lifetime your legal heirs can be brought on record. It is not necessary that they have to appear in the court on every hearing, the presence of their lawyer shall suffice.
3. Since the bank has not yet applied for restoration of the suit it manifests that the bank is also disinterested in walking through the court process again.
4. The only ''Out of the box solution' that can be conceived is to hold parleys with the concerned officers of the bank to reach a mutually acceptable solution.