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2014 DIGILAW 234 (CAL)

Big Boss Infotech Ltd. v. State Bank of India

2014-03-18

D.DATTA

body2014
JUDGMENT : Dipankar Datta, J. 1. This writ petition is directed against an order dated 19th February, 2014 passed by the Chief Metropolitan Magistrate, Kolkata (hereafter the CMM) in exercise of power conferred by Section 14 of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (hereafter "the Act"). It appears from the records of Application No. 43/13, being the application under Section 14 of the Act filed by the secured creditor, that the same was presented before the CMM on 25th November, 2013. The affidavit accompanying the application declared that no case was pending before the Debts Recovery Tribunal and there was no stay order from any Court of law against the secured creditor in respect of immovable secured assets mentioned in the schedule of the application. 2. It is not in dispute that in December, 2013, the petitioners had moved an application under Section 17 of the Act before the Debts Recovery Tribunal-1, Kolkata (hereafter the Tribunal), registered as SA No. 84 of 2013, and on 16th December, 2013, the Tribunal had passed an order reading, inter alia, as follows: "18. In the above circumstances, it is ordered that ORDER (a) The applicant is directed to deposit Rs. 50 lacs in addition to the Rs. 1.55 crore already deposited with the Bank within 3 weeks time with a detailed proposal stating out the modalities of payment and source of fund to the Bank. (b) Upon such proposal is being received along with Rs. 50 lacs within the time as mentioned above, the local Bank authority would place the matter before the competent authority of the Bank for their consideration. The competent authority of the Bank are directed to passed a reasoned order and communicate the same to the Applicants and till such time the Bank should not take any coercive action against the secured assets. (c) All other issues are kept open. (d) Let the matter be fixed for further hearing on 24.1.2014." 3. I have been informed that the said order has been carried in appeal by the secured creditor before the Debts Recovery Appellate Tribunal but no stay has since been obtained. 4. It is further not in dispute that in terms of the Tribunal's order, deposit of Rs. (d) Let the matter be fixed for further hearing on 24.1.2014." 3. I have been informed that the said order has been carried in appeal by the secured creditor before the Debts Recovery Appellate Tribunal but no stay has since been obtained. 4. It is further not in dispute that in terms of the Tribunal's order, deposit of Rs. 50 lacs was made and that the proposal for one time settlement which had been submitted, is yet to be disposed of by the secured creditor. 5. On 20th February, 2014, the petitioners by filing an application sought to invite the notice of the CMM that the Tribunal had interfered on their application under Section 17 of the Act and had restrained the secured creditor from taking coercive steps. However, unfortunately for the petitioners, the CMM had disposed of the application under Section 14 of the Act a day before such application was filed. 6. Be that as it may, it does not appear from the order of the CMM that the secured creditor had brought to his notice the fact of payment of Rs. 50 lacs in compliance with the order dated 16th December, 2013. Once the Tribunal had restrained the secured creditor from taking coercive steps against the borrowers, the application under Section 14 of the Act could not have been proceeded with by the CMM. 7. Since the secured creditor has not yet disposed off the proposal of the borrowers for one time settlement in terms of the order dated 16th December, 2013, the said order is subsisting and binds the parties to the application under Section 17(1) of the Act. In such circumstances, the order dated 19th February, 2014 passed by the CMM cannot be sustained in law and consequently stands set aside. The result is that the application under Section 14 of the Act would stand revived and further proceedings thereof shall remain stayed until SA No. 84 of 2013 is either finally disposed off or the interim stay is vacated by the Tribunal allowing the secured creditor to proceed with the application under Section 14 of the Act or the Appellate Tribunal sets aside the order dated 16th December, 2013. 8. 8. Needless to observe, except to the extent mentioned above, I have not examined the rival claims on merits and all points available in law to the parties are left open for being agitated before the appropriate Forum. 9. Let the records of Application No. 43/13 placed before this Court in terms of the order dated 11th March, 2014, be returned by the office to the Court of the CMM at once. Urgent certified photocopy of this order be made available to the parties, if applied for, upon compliance with all requisite formalities.