The SC says it did the right thing under the circumstances
On 18th August 2016, a joint bench of Justice Tashi Chozom and Justice Rinzin Penjore of the Supreme Court passed its verdict on Dr Shacha Wangmo’s mother Tandin Bidha versus Sonam Phuntsho case.
The verdict essentially said that Tandin Bidha either had to pay Nu 18 mn to Ap Sp failing which she had to transfer nine of her apartment units to Ap Sp along with the BNB loan on them, which at the time was around Nu 10 mn.
However, there was pandemonium on 24th January 2017 after the defamation case withdrawal verdict, because Ap SP stated that his reason for withdrawing the libel case was that on 12th January the Supreme Court had ordered the Department of National Property (DNP) to auction half of Tandin Bidha’s building and pay the Nu 18 mn due to him.
Dr Shacha said that her mother Tandin Bidha, had earlier submitted to both the Supreme Court and the Bhutan National Bank (BNB) in writing that she cannot pay the Nu 18 mn in cash. She said that her mother in keeping with the 18th August 2016 verdict had agreed to instead transfer the nine apartments along with the loan due on them which had come down to around Nu 8.5 mn after the stalled rent payments from the Royal Bhutan Police were released by the Supreme Court last year.
“They have changed the verdict and we are not even informed about it,” said Dr Shacha reacting to the DNP auction revelation by Ap SP.
Dr Shacha accused the Supreme Court of not honoring its own verdict and instead changing it through the enforcement order only so that Ap SP could get the Nu 18 mn without having to take over the nine apartments and pay the loan.
Dr Shacha said that the first verdict in the Supreme Court had said that Tandin Bidha should either pay Nu 18 mn or lose the 9 apartments. Based on an appeal to the Gyalpoi Zimpon by both Tandin Bidha and BNB (which had a loan on the building), there was a command to review the case again.
The second and final Supreme Court judgment on 18th August 2016 essentially upheld the previous judgment but with a major change that Ap SP would have to pay the Nu 10 mn loan for taking over the nine apartments.
At the time of the judgment both parties were unhappy, including Ap SP who in a then interview to this paper said that he did not want to pay the Nu 10 mn loan.
“We wanted to back out and end this somewhere with the defamation case going on among other things and so we decided that Ap SP can take the nine apartments along with the Nu 8 mn plus loan on them as per the verdict. However, it now emerges he does not want to pay the loan and so the Supreme Court is changing the verdict,” Dr Shacha said.
“If one person like Ap SP is unhappy then they don’t even consider the Constitution. I don’t understand how the whole system can work for just one person,” she added.
Dr Shacha said that since the verdict was issued on August 18th they had three months until November 19th to comply. So on November 18th 2016 her mother wrote to BNB informing them that she is ready to transfer the nine apartments and also requested the bank to transfer the loan amount to Ap SP.
The BNB confirmed receiving such communication from Tandin Bidha. However, Ap Sp declined to take the nine apartments and accept the loan.
On 10th December 2016 the Supreme Court asked Tandin Bidha to come to court on 15th December and state her stand. She went with a written statement saying she was already ready to transfer the nine apartments and the loan along with them to Ap SP as per the verdict.
Ap SP was also called separately and asked to state his stand and he formally said that he did not want the apartments and the loan but only the money owed to him.
Consequently on 12th January 2017 the Supreme Court in a ‘Kasho’ or enforcement order to the DNP stated that since the original verdict was not implemented, the court, under Article 21 section 10 of the Constitution directed the DNP to auction the 9 apartments at a base price of Nu 2.44 mn each coming to a total of Nu 22 mn.
This would mean that even if DNP could get the base price the loan amount to the BNB would still be short by Nu 5 mn to 4 mn. As a result this loan liability would be transferred to Tandin Bidha instead of Ap SP.
Article 21 section 10 of the Constitution says, “The Supreme Court and the High Court may issue such declarations, orders, directions or writs as may be appropriate in the circumstances of each case.”
However, here Dr Shacha said that the Supreme Court in its enforcement order should enforce its own verdict and make Ap SP take the nine units and the loan.
She said that when she approached the Supreme Court she was told by a Judge that since Ap SP did not want the nine units and the loan a way had to be found to pay the Nu 18 mn to Ap SP and so that is why the enforcement order was given to auction half the building.
Dr Shacha said that even the BNB was left in the dark.
The BNB MD Kipchu Tshering confirmed that the bank was not even informed about the DNP order. He said that as per the Property Act, BNB has first right over the building which was mortgaged to the bank much before Ap SP entered the picture. He said that the bank will write to the Supreme Court citing the Property Act and RMA regulations.
He also confirmed that Tandin Bidha following the court verdict had informed the bank that she wanted to give up the nine apartments and also transfer the loan to Ap SP but Ap SP refused to do so.
The MD said that the order by the Supreme Court to the DNP would affect all future cases in the financial sector as it would set a precedent. He said that the very sanctity of the mortgage deed would be lost.
He said that even within Financial Institutions the law is that the oldest loans get first priority. He said in the Deki money lending case in Paro, BNB was given first preference to auction and collect its loan only after which the remaining amount was given to the district court which in turn distributed the money to other moneylenders.
The MD said that BNB had appealed to the Gyalpoi Zimpon in the first place since BNB had been left out in the first verdict. Then the final verdict had mentioned BNB getting its loan amount but now the enforcement order has left the bank out again.
The Supreme Court
The Bhutanese talked to both the Supreme Court Judges about the case but for the sake of legal propriety the paper cannot directly quote the Judges or individually attribute statements to them but can only mention any statements being from the Supreme Court.
Therefore, the Supreme Court said that the court had given a three month time from the time of the verdict to both parties to implement the judgment. After the three month period the court found that the judgment was not implemented because neither had Tandin Bidha given the Nu 18 mn in cash nor had Ap SP accepted to take the nine units and the consequent loan along with it.
The court then called all parties for separate hearings and took written statements to the effect. In the meantime Ap SP had also repeatedly approached the court saying that he wanted the money and not the nine units and the loan claiming that he had to pay millions for a giant statue he had ordered from Nepal.
The court said that since either sides would not budge and the debt had to be paid the court on 12th January 2017 issued an order to auction the building at a base price so that Ap Sp would get his Nu 18 mn and there would also be some money left to pay a part of the bank loan.
The court said that there were different kinds of loans on the whole building including one which had to do with construction of another building. This verbal statement of the court give to the paper was not officially mentioned either in the final verdict or the order to DNP.
The Bhutanese checked the loan records and found five different BNB loans coming to a total of Nu 35 mn in loans on the total building of which the loan to construct another building in Kawajangsa was a 19 mn loan taken separately by Tandin Bidha and so had nothing to do with the Nu 10 mn loan taken by the Sonam Wangmo and her husband on their half of the property which is the nine apartments. So while the court is correct in verbally pointing out different loans on the building the then Nu 10 mn loan now reduced to around Nu 8.5 mn loan is due on the nine specific apartments. This was also pointed out in the final verdict while the court was calculating the loan liabilities on the nine apartments.
There is, however, another Nu 30 mn loan taken from T-Bank by Sonam Wangmo and her ex-husband Choki Gyaltshen based on a forged version of the buildings Thram which the Supreme Court did not entertain in its final verdict.
The court said that there was no point mentioning the auctioning of the nine units in the final judgment as at the time it was not known whether the money or property would be given. However, the court did mention that since Ap SP wanted only the money and not the building, the court could not force him to take the building and the loan and so the buildings had to be auctioned.
The court said that this is the final decision and it will not be changed at all no matter what submissions are put up.
Dr Shacha on her part pointed out that the final verdict had said that that it would be a contempt of court to not follow the judgment.
She questioned that while she and her mother were ready to follow the judgment why there was no contempt charges against Ap SP for openly refusing to accept the final verdict.
Meanwhile Ap SP said that he is neither Tandin Bidha’s husband to pay the Nu 10 mn loan nor did he ever stand as the guarantor of the loan. He said that since the court has accepted that Nu 18 mn is owed to him he wants the money and not some apartments and a loan. He said that Nu 18 mn combined with the Nu 10 mn loan would cost him a total Nu 28 mn which is much higher than the market value of the nine apartments. “The building is not made of gold and silver that I can accept such a loss,” he said. He also claimed to be ignorant of the SC order saying he found it out only from DNP.
Not backing down
Dr Shacha said that with the latest twists and turns she and her mother have now decided they would not pay the money or part with the building, come what may. She said that they have also appealed to the office of the Gyalpoi Zimpon.