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2003 DIGILAW 266 (MP)

Ravindra Agarwal v. Bank of India

2003-02-11

A.M.SAPRE

body2003
JUDGMENT By filing this writ under Article 226/227 of Constitution of India, the petitioners seek to assail the notice issued under section 13 of Securitisation and Reconstruction or Financial Assets and Enforcement of Security Interest Ordinance 2002, dated 30.1.2002 (annexures P. 3/P.4) issued by respondent Bank, calling upon the petitioner to pay the outstanding towards several credit limits/facilities alleged to he extended to petitioners for running their business. Heard Shri A.K. Sethi, L/c for the Petitioner. In substance the grievance of the writ petitioner is that notice under section 13(2) ibid sent by the Bank (respondent) is bad on facts. According to petitioners they have discharged their outstanding. It is also their case that when respondent has with them some property available for realisation of the dues, then no notice in question could be served on the petitioner in any event. It is also the grievance of the petitioners that they have replied to the impugned notice by submitting a detail factual reply dated 3.1.2003 (Annexure P-5) as also lawyers reply on their behalf dated 21.1.2003 (Annexure P-6) but the same has not been considered nor taken note of and hence writ to challenge the impugned notice. In my opinion, this Court at this stage cannot examine the legality of the impugned notices sent by the respondents-Bank to petitioner under section 13(2) ibid for the reason infer alia that no factual enquiry as to whether petitioner has repaid the money and, if so, when and how much? can be held in writ petition. A writ Court cannot be converted into a fact finding Court. It is for the petitioner to approach the respondent-Bank and satisfy them as to whether they paid or liquidated the outstanding or not and whether they arc interested to liquidate the outstanding and, if so, in what manner? In such exercise, no legal question/issue of any nature arises for consideration muchless for the writ Court. So far as jurisdiction of Bank in issuing such notice is concerned, the same cannot be questioned because admittedly the ordinance in question does empower the Bank to issue such notice and call upon the petitioner (borrower) to repay the outstanding. The petitioner has neither challenged the notice on jurisdictional point nor they can possibly put such challenge muchless successfully. So far as jurisdiction of Bank in issuing such notice is concerned, the same cannot be questioned because admittedly the ordinance in question does empower the Bank to issue such notice and call upon the petitioner (borrower) to repay the outstanding. The petitioner has neither challenged the notice on jurisdictional point nor they can possibly put such challenge muchless successfully. The petitioner has also not challenged the vires of such provision which empowers the Bank to issue such notice nor the same can be challenged in this writ. Submission of L/c for the Petitioner was that the impugned notice is not in the nature of notice but is in fact an order itself and can always be challenged in writ. I do not agree to this submission. Firstly, if the legislative intent is to give such power to Bank then it cannot be challenged on such ground. Secondly, such submission can be urged only when the vires or land constitutional authority of the very enactment/ordinance and in particular the impugned provision is assailed (which is not done nor can be done here). Thirdly, impugned notice cannot be questioned on the ground of malafides of an authority or in any event, it is not so challenged. L/c for the petitioner then made attempt to convince this Court with reference to factual documents filed in this writ by way of annexures and contended that the impugned notice is factually incorrect it is based on no factual foundation, and hence could not have been issued. I am afraid, this submission cannot be of any help to petitioner in a writ for the reason already taken not of supra. I will be travelling outside the purview of my writ jurisdiction if I were to entertain such factual plea. If the legislative intent is to allow such plea to be raised only in an appeal to be filed by an aggrieved before the D.R.T. under section 13(4) of the ordinance then such intention has to be given effect to at the instance of the parties only when such event occurs. The legislative intent must be allowed to prevail in its real perspective and it cannot be whittled down by the acts of the parties. The legislative intent must be allowed to prevail in its real perspective and it cannot be whittled down by the acts of the parties. While thus dismissing this writ inlimini, this Court feel it proper to observe that respondent - Bank will ensure examination of petitioner's case as contained in their two replies referred above in reply to Bank notice (impugned) in its proper perspective and with helping attitude to enable the petitioner to overcome the problems faced due t6 issuance of impugned notice and communicate its outcome to the petitioner. With these observations, the petition fails and is dismissed in limini.