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2015 DIGILAW 1264 (MP)

Jagdish and Company v. IDBI Bank Ltd.

2015-12-28

JARAT KUMAR JAIN, S.R.WAGHMARE

body2015
ORDER 1. By this writ appeal under section 2(1) of the Madhya Pradesh Uchha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, the appellant has challenged the order dated 10.12.2015 passed by the learned Single Judge in Writ Petition No.1371/2015 rejecting the petition of the petitioner, however, liberty was granted to file alternative remedy, but the interim order was vacated. 2. Counsel for the appellants has vehemently urged the fact that the mandatory provisions of law and procedure is available under section 13(3A) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI ACT) and rule 8 of the Security (Enforcement) rules have not been followed. Counsel further vehemently urged the fact that if the procedure is established to be followed, then according to the statute the manner prescribed must be adhered to very strictly. 3. He has placed reliance in the matter of Calcutta High Court passed in Writ Petition No.13388/2014 in the case of Ali Hussain v. Paschim Banga Gramin Bank to state that if section 13(3A) of SARFAESI Act and rule 8(1) and (2) provides to do a thing in a particular manne r, it has to be done in the same manner or not at all and in the present case rule 8(1) and (2) of the Security Rule and section 13(3A) of SARFAESI Act have not been followed. A notice as per requirement has not been sent to the petitioners, whereas the respondent-Bank has strictly taken coercive action against the petitioners by attaching his property concerned and trying to gain possession through the police. 4. Counsel for the appellants has also submitted that the respondent-Bank has accepted certain installments whereby a de-novo contract and a fresh cause of action accrued to the appellants which has not been considered by the writ Court at all, whereas the appellants are likely to suffer irreparable loss if their property is attached by the respondent–Bank. Counsel in light of the aforesaid has urged before this Court that the impugned order be set-aside. He further candidly admitted that the alternative remedy under the SARFAESI Act, 2002, before the concerning Tribunal was available to the appellants and he prayed for time to avail the same. 5. Considering the above submissions, it is directed that the appellants are granted six weeks' time to avail such remedy. He further candidly admitted that the alternative remedy under the SARFAESI Act, 2002, before the concerning Tribunal was available to the appellants and he prayed for time to avail the same. 5. Considering the above submissions, it is directed that the appellants are granted six weeks' time to avail such remedy. The writ Court has also directed such liberty to the appellants to approach the Tribunal but the interim relief was vacated and in this regard the impugned order is set aside. It is also hereby directed that till the expiry of the six weeks' no coercive action shall be taken against appellants and the application for grant of interim relief shall be moved before the said Tribunal and limitation, if any shall not stand in the way of the appellants. 6. With the aforesaid observations and directions, the appeal is partly allowed to the extent hereinabove indicated.