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2013 DIGILAW 320 (CAL)

Subrata Sarkar v. United Bank of India

2013-06-05

SAMBUDDHA CHAKRABARTI

body2013
Judgment :- Sambuddha Chakrabarti, J. By this writ petition the petitioner has inter alia prayed for a writ in the nature of Mandamus directing the respondents not to take any action against the petitioner on the basis of certain documents under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the rules made thereunder, a writ in the nature of Mandamus directing the respondents to refund the title deeds of the petitioner deposited with the bank and to enquire into the allegations of the petitioner which was submitted on December 17, 2009 and for other reliefs. The case of the petitioner inter alia is that the private respondent no. 6 herein had introduced him as the Director of Messrs. Calcutta Impex Private Limited, i.e., the respondent no. 5 and approached him for financial assistance. An agreement was entered into between the petitioner and the said respondent on September 2, 2005 with certain terms and conditions contained therein. As per the agreement the private respondent no. 6 availed himself of the financial assistance of 1.5 crores in the form of a letter of credit and packing credit limit from the United Bank of India in the name of the said company. It was further agreed that the private respondent no. 6 shall pay a sum of Rs. 30 lacs which would be refunded along with simple interest of 12 per cent. per annum. The petitioner also in turn had mortgaged a property at Netaji Subhas Chandra Bose Road, Kolkata – 700 040 as collateral security. Subsequently the petitioner came to learn that that the respondent no. 6 had already withdrawn Rs. 50 lacs from the bank by depositing the title deed of the said property without paying Rs. 30 lacs to the petitioner. The petitioner lodged a complaint with the local police station. The petitioner subsequently stated that he had not performed as a Director of the company at any material time and no statutory compliance or formalities have been executed for that purpose. By a letter dated February 8, 2006 the petitioner informed the statutory authorities about the resignation from the respondent no. 5 company and sent a lawyer’s notice to the private respondents demanding refund of Rs. 30 lacs from them. The grievance of the petitioner is that without considering the situation and the status of the petitioner the respondent no. By a letter dated February 8, 2006 the petitioner informed the statutory authorities about the resignation from the respondent no. 5 company and sent a lawyer’s notice to the private respondents demanding refund of Rs. 30 lacs from them. The grievance of the petitioner is that without considering the situation and the status of the petitioner the respondent no. 4 issued a notice dated December 4, 2008 under Section 13(2) read with Section 13(3) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the said Act) in order to grab the property of the petitioner. The petitioner gave a reply to that. The petitioner filed an application under the Right to Information Act for certain documents which were supplied to him. According to the petitioner after receiving the same he was surprised to discover that all the documents on the basis of which the respondent bank had acted under the said Act have been forged and contain fictitious signatures of the petitioner. He, through his learned Advocate, served a notice upon the respondent no. 4 and requested him not to take any action on the basis thereof and also initiated criminal proceeding before the competent authority against the respondent no. 6. The petitioner is aggrieved that the bank had committed a fraud on the statute to grab the property and the concerned Act is not applicable to the petitioner. He alleges that the bank invoked the provisions of the Act without any reasonable basis and as such he has filed the present writ petition. It may be mentioned that this writ petition was admitted in January, 2010 when liberty was granted by a learned single Judge to the respondents to file an affidavit-in-opposition. But in spite of this direction no such affidavit was filed by the respondents and the matter was heard treating the same as ready for hearing. It may be mentioned that none appeared for the respondent bank. Mr. Guhathakurata, the learned advocate for the petitioner, has assailed the action of the bank on several grounds. The crux of his submission is that the documents he received pursuant to the application under the Right to Information Act revealed that the signature of the petitioner had been forged for which he has already served notice through his learned advocate upon the bank authorities. The crux of his submission is that the documents he received pursuant to the application under the Right to Information Act revealed that the signature of the petitioner had been forged for which he has already served notice through his learned advocate upon the bank authorities. The other limb of submission of the petitioner is that the Act has been applied to the instant case without any statutory basis and the respondent authorities had in exercising their power exceeded their jurisdiction. According to him no security agreement had been created which is the principal condition for applying the provisions of the Act and as such the bank also in its turn could not take any action under the Act. He has also relied on Section 49 of the Registration Act contending that the agreement of loan was not a registered one and as such this agreement will not create any security in the concerned property which, because of its non-registration, has no force in the eye of law. He has also argued that the property in question is a joint property and as such the bank cannot take the property without taking consent from other co-owners and co-sharers of the said property. Thus the petitioner trades manly into the area of factual dispute. The points urged by him that he had never executed an unregistered agreement, that he never acted as a Director of the respondent no. 5 company and no statutory compliance and formalities had been executed by him are all disputed questions of fact. The assertion of the petitioner that the documents on the basis of which the bank had acted were forged and his signatures were fake, cannot be decided in a writ jurisdiction. Whether the petitioner had really signed those documents or whether forgery was committed are matters to be decided by a fact finding court as these are matters which are to be decided on evidence. The writ court cannot arrogate to itself the functions of other courts where such disputed questions are established in trial on evidence. In other words these are issues for which a proper adjudication from a proper forum is necessary. The writ court cannot arrogate to itself the functions of other courts where such disputed questions are established in trial on evidence. In other words these are issues for which a proper adjudication from a proper forum is necessary. True is it that while admitting the writ petition the question of maintainability has not been kept open and it is also equally true that after the exchange of affidavits a writ petition should not ordinarily be decided on the ground of alternative remedy. But no affidavit-in-opposition has been filed by the respondents in this case. Additionally the nature of dispute involved in this case being such that the writ court cannot decide the same and the petitioner also has filed the present petition without first exhausting the statutory remedies provided in the Act itself. In such view of it the writ petition is disposed of without granting any relief as prayed for. The petitioner, however, will be at liberty to file an appropriate appeal before the authority mentioned in the Act and also to take appropriate steps against the respondents in a proper forum for adjudication of his case. I direct the appropriate authorities that if an appeal is filed within four weeks the same shall be heard on merits. The writ petition is disposed of. There shall, however, be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.