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2013 DIGILAW 275 (JHR)

Anup Electronics, a proprietorship concern situated at Shree Durga Market, Dhanbad v. Bank of India

2013-02-25

APARESH KUMAR SINGH

body2013
ORDER 1. Heard learned counsel for the parties. 2. The order dated 15.10.2012 passed by the Presiding Officer, Debt Recovery Tribunal, Ranchi in SARFAESI Appeal No. 112 of 2012, Annexure-11, is under challenge by way of this writ petition. 3. The petitioner had preferred the said appeal being aggrieved by the notice issued under Section 13(4) of the SARFAESI Act, 2002 intending to take possession of the secured property and according to the learned counsel for the respondent-Bank, symbolic possession of the property has been taken. Learned counsel for the petitioner has, however, submitted that earlier there was an offer of one time settlement under which the petitioner had made certain payments and, thereafter, notices were issued for taking possession of the immovable property in question invoking the provisions of SARFAESI Act, 2002 by the Bank. It is submitted that the DRT, Ranchi has issued notice upon the petitioner, thereafter, the petitioner and other respondents have appeared, but the DRT, Ranchi has refused to grant interim order so far as the possession of the property is concerned against which the present writ petition has been preferred. 4. Learned counsel for the respondents, who has appeared and filed counter affidavit on behalf of the respondents, submits that total outstanding amount due against the petitioner is Rs. 51,00,000/- approximately. After due notice under Section 13(4) of the SARFAESI Act, 2002, the symbolic possession of the property has been taken under the provisions of the SARFAESI Act, 2002. The DRT, Ranchi has, however, refused to grant stay on the request of the petitioner. It is further submitted that the Appellate Tribunal is empowered to entertain Appeal even against interim orders under Section 18 of the SARFAESI Act, 2002. He submits that the Appellate Tribunal created by the fiscal statute like the Act of 2002 are specially constituted to entertain and decide such matters within a fixed time schedule and therefore, this Court should refrain from entertaining the writ petition where the efficacious alternative remedy is available under the law. 5. Learned counsel for the respondents has relied upon the judgment in the case of United Bank of India vs. Satyawati Tondon and other reported in (2010) 8 SCC 110 . 5. Learned counsel for the respondents has relied upon the judgment in the case of United Bank of India vs. Satyawati Tondon and other reported in (2010) 8 SCC 110 . He submits that in the said case arising out of the SARFAESI, Act, 2002, the Hon'ble Supreme Court has advised that the High Courts should be more circumspect in entertaining writ petitions in relation to the matters where fiscal statutes like SARFAESI Act are involved. It is submitted that legislative history and objects of the Act has also been discussed and it has been further reiterated that the aggrieved person has adequate remedy of Appeal under the provisions of the said Act. 6. Learned counsel for the petitioner has relied upon the judgment in the case of Union of India and others vs. Tantia Construction (P) Ltd. reported in (2011) 5 SCC 697 [2012(1) JLJR (SC) 240]. It is submitted that the existence of terms and conditions in agreement does not bar invocation of writ jurisdiction when injustice is caused and rule of law is violated. However, from the perusal of the said judgment relied upon by the petitioner it appears that they are based on different facts and circumstances in relation to the Arbitration and Conciliation Act, 1996 and existence of the Arbitration Clause in agreement between the parties. 7. I have heard learned counsel for the parties and have gone through the impugned order and relevant materials on record. The petitioner has preferred an appeal under Section 17 of the SARFAESI Act, 2002 being aggrieved by the notice under Section 13(4) of the said Act for taking possession of the mortgaged immovable property of the petitioner borrower. Provisions of Section 17(3) of the SARFAESI Act, 2002 clearly provides that the DRT if after examining the facts and circumstances of the case and evidence produced by the parties, comes to a conclusion that any action taken by the Bank or Institutions is not in accordance with law, Rules and Act, the DRT can direct to restore the possession of the secured assets to the borrower or restore the management to the borrower and also declare any of the recourse taken by the creditor invalid as also pass any appropriate and necessary order in relation to the same. It, therefore, appears that the Appellate Forum, the DRT, where the petitioner had preferred his appeal, is competent to consider and pass an appropriate order in accordance with law if the action of the respondents is found to be invalid. Even otherwise, the petitioner has a remedy under Section 18 of the SARFAESI Act, 2002 before the Appellate Tribunal, which is an alternative remedy provided in the fiscal statute in question itself. This Court in the writ jurisdiction, however, refrains from entering into the merit of the claims of the parties keeping into account the judgment rendered by the Hon'ble Supreme Court in the case of United Bank of India vs. Satyawati Tondon and other reported in (2010) 8 SCC 110 . 8. In that view of the matter, I am not inclined to interfere in exercise of the writ jurisdiction in the instance case arising out of the order dated 15.10.2012 passed in S.A. No. 112 of 2012 by the DRT, Ranchi. 9. Accordingly, this writ petition is dismissed.