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2014 DIGILAW 181 (GAU)

MAA FURNISHING v. STATE BANK OF INDIA

2014-02-13

A.M.SAPRE, UJJAL BHUYAN

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JUDGMENT A.M. Sapre, J. Heard Mr. P. K. R. Choudhury, learned counsel for the petitioners and Mr. B. Kalita, learned counsel for the respondent-Bank. By filing this petition under Article 226/227 of the Constitution of India, the petitioners in substance seek to challenge the notices issued by the respondent Bank under Section 13(2) read with Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the SARFAESI Act) dated 10.06.2013 (Annexure-IV) and 26.11.2013 (Annexure-IX), respectively. Without burdening our order by narrating more facts in detail and suffice it to say that subsequent to the issuance of impugned notices dated 10.06.2013 under Section 13(2) of the Act, the petitioner, a defaulting borrower of respondent Bank deposited a sum of Rs.93,424.00 on 6.11.2013 (Annexure-VII) with the respondent Bank against their total outstanding as is reflected in the accounts (Annexure-V). As a result of the said deposit made by the petitioner, the total outstanding balance, even according to the respondent Bank that remains now, works out to Rs.25,000/- approximately on the petitioner. In the light of all these undisputed facts, broadly, the only submission of the learned counsel for the petitioners was that the impugned notices under Section 13(2)/13(4) of the Act have become bad in law in the light of the embargo created under Section 31(j) of the Act. In other words, the submission was that the provisions of the SARFAESI Act does not apply to the case in which the amount due is less than 20% of the principal amount and interest thereon and since in this case, the petitioners’ total outstanding which is now payable is less than 20% of the principal amount and interest payable thereon and therefore the Bank has no right to take recourse to Section 13(1) for realization of the remaining outstanding from the petitioner by virtue of bar created under Section 31(j) ibid. Learned counsel appearing for the respondents fairly conceded to this legal issue arising in the facts of the case but at the same time contended that the Bank has a right to recover the remaining outstanding by taking recourse to any other remedy as may be available to them in law other than the SARFAESI Act and such right cannot be taken away. Having heard the learned counsel for the parties and on perusal of the records of the case, we find force in the submission of learned counsel for the petitioners and therefore we are inclined to allow this writ petition and quash the impugned two notices dated 10.06.2013 (Annexure-IV) and 26.11.2013 (Annexure-IX) by issuance of a writ of certiorari. Indeed since the respondents too did not dispute the legal position arising in the case as noted above, We do not consider it necessary to deal with this issue at length. We, however, grant liberty to the respondent Bank to take recourse to any other legal remedies as may be available to them in law for making recovery of the remaining outstanding from the petitioner. In case the respondent Bank takes recourse to any other legal remedy, the same shall be decided by the Court/Tribunal, as the case may be, in accordance with law notwithstanding allowing of this writ petition. Before parting with the case, we wish to make it clear that we did not apply our mind to the merits and demerits of the actual dues which now remains to be paid though otherwise they are below the ceiling of Section 31(j) ibid and therefore it will be for the parties to prove it on evidence in appropriate forum, to enable the Court/Tribunal to pass appropriate orders. With these observations, the petition succeeds and is allowed. Impugned notices dated 10.06.2013 (Annexure-IV) and 26.11.2013 (Annexure-IX) are quashed by issuance of writ of certiorari. No cost.