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2014 DIGILAW 28 (ORI)

Binati Samal v. Bank of Baroda

2014-01-13

A.K.GOEL, A.K.RATH

body2014
JUDGMENT : A. K. Rath, J. Challenging the auction sale notice issued by the Authorized Officer, Bank of Baroda, vide Annexure-5, and acceptance of bid of the auction holders, vide Annexure-6, the petitioner has filed the aforementioned writ application. An ancillary prayer has been made for interim protection of the suit property purchased by the petitioner till inter se dispute between the parties is resolved in C.S No.306 of 2010 pending in the court of learned Civil Judge (Senior Division), Angul. 2. The case of the petitioner is that she is neither the borrower nor guarantor. She is a bona fide purchaser of the suit property. The suit property is a residential building. Prior to her purchase, the same was mortgaged with the State Co-operative Bank on 6.5.2003. On negotiation, she paid the entire outstanding dues of the borrower to the Bank, whereafter the property was released and sold to her, vide Annexure-1. While the matter stood thus, the State Bank of India-the opposite party No.3, published a possession notice under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, the SARFAESI Act) in the daily newspaper. The Sambad on 24.2.2010, which shows that the property had been mortgaged to the said Bank. On 19.5.2010, the Bank of Baroda, opposite party No.1, published possession notice in respect of the said property. On 28.5.2010, opposite party No.1 also published the sale notice in the daily Newspaper. The Indian Express. The property was put to auction by opposite party No.1 on 26.6.2010. The auction purchaser had deposited the EMD of Rs.60,000/- out of reserve price of Rs.12,00,000/-. The further case of the petitioner is that opposite party No.3 filed the suit against opposite party No.2 in the court of learned Civil Judge (Senior Division), Angul, which is registered as Civil Suit No.306 of 2010 for injunction. The petitioner has also filed C.S. No.305 of 2010 in the same court for permanent injunction against both the Banks. 3. Pursuant to issuance of notice, opposite parties 1 and 2 filed a counter affidavit. Apart from challenging the maintainability of the writ application, a stand has been taken that it is the duty of the petitioner to enquire into the status of the land in question before purchasing the same. Furthermore, the trial court has dismissed the interim application filed by the petitioner for injunction. 4. Apart from challenging the maintainability of the writ application, a stand has been taken that it is the duty of the petitioner to enquire into the status of the land in question before purchasing the same. Furthermore, the trial court has dismissed the interim application filed by the petitioner for injunction. 4. We have heard Mr. I.C. Das, learned counsel for the petitioner, Mr. G. Kar, learned counsel for opposite party No.2, Mr. D.P. Sarangi, learned counsel for opposite party No.3 and Mr. D.K. Sahoo, learned counsel for opposite party No.5. 5. In course of hearing, Mr. Das, learned counsel for the petitioner, submits that no valid equitable mortgage was created in respect of the selfsame property in favour of three Banks such as, opposite parties 2 and 3 and State Co-operative Bank and any action taken by the opposite parties 2 and 3 taking recourse to SARFAESI Act is liable to be quashed. He cited a decision of the Apex Court in the case of United Bank of India Ltd. v. Lekharam Sonaram & Co., AIR 1965 SC 1591 . Mr. Kar and Mr. Sarangi, learned counsel submit that both the suits have been dismissed by the learned Civil Judge in the meantime. They further submit that the property has been put to auction and the auction purchaser has deposited the entire amount which is sufficient enough to meet the liability of both the Banks. 6. Having heard learned counsel for the parties, we are of the considered opinion that the factual aspects cannot be gone into in a writ of certiorari in the absence of any perversity or illegality. Creation of valid equitable mortgage is essentially a question of fact. The tribunal constituted under the SARFAESI Act is competent to adjudicate the valid issue, if an appeal under Section 17(1) of the Act is filed. 7. The matter may be examined from another angle. The suits filed by the State Bank of India as well as by the petitioner have been dismissed by the trial court. The said judgments have not been challenged by any of the parties and have attained its finality. 8. In view of the same, we are not inclined to entertain this writ petition and the same is accordingly dismissed. We make it clear that it is open to the petitioner to avail any other remedy under law. Petition dismissed.