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2015 DIGILAW 359 (GUJ)

Pratik Kanjibhai Vaghela v. IDBI Bank Limited

2015-03-30

R.M.CHHAYA

body2015
JUDGMENT : R.M. Chhaya, J. Heard Mr. K.I. Kazi, learned advocate for the petitioners. 2. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:- (a) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, quashing and setting aside E Auction Sale Notice dated 27.2.2015 published by the respondent No.1 in connection with property in question. (b) By way of interim relief pending hearing and final disposal of the present petition, direct the respondent No.1 to not to carry out any activity of auction which scheduled on 30.3.2015 in connection with E Auction Sale Notice dated 27.2.2015 in the interest of justice." 3. The facts which can be culled out from the record of the petition are as under: As such by way of this petition, the petitioners have challenged the education sale notice issued by IDBI Bank under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the SARFAESI Act"). It appears from the notice at Annexure E to the petition that the same is dated 27.2.2015 and the auction is to take place on 30.3.2015 i.e. today. It is an admitted position that the petitioners were aware about the notice having been published on 27.2.2015. It further appears that the petitioners, through their advocate even before issuance of the said public notice, have informed the Bank about the pendency of the proceedings and the order of status quo passed by the Labour Court, Ahmedabad. It is contended in the petition that as the salary was not paid for 10 months, the petitioners have approached the Labour Court under the provisions of Payment of Wages Act, 1936 for recovery of legal dues along with an application as provided under Section 17(A) of the Payment of Wages Act seeking attachment of the property. It is further contended that some workers of respondent No.2 have also preferred an application for recovery of their legal dues under the provisions of the Industrial Disputes Act. 4. Mr. Kazi, learned advocate for the petitioners vehemently submitted that in light of the aforesaid order passed by the Labour Court, the impugned notice is bad and illegal and the same deserves to be quashed as prayed for. 4. Mr. Kazi, learned advocate for the petitioners vehemently submitted that in light of the aforesaid order passed by the Labour Court, the impugned notice is bad and illegal and the same deserves to be quashed as prayed for. It is contended that if the property is sold in auction, the rights of the workers would be destroyed and it would be a heavy loss to the workers and employees. On perusal of the order passed by the Labour Court, it appears that the same is between one of the labourers in the Company and the Director. 5. No other or further submissions were made by the learned advocates appearing for the parties. 6. The petition is filed on the eve of actual auction which is to take place today after a prior notice of more than a month given by the Bank under the provisions of the SARFAESI Act. 7. It is no doubt true that the petitioners, through their advocate, have given notice on 3.3.2015, in opinion of this Court, it was open for the petitioner to lodge their objections before respondent No.1 Bank which, in fact, they have done and could have persuaded the same. The present petition is filed by 5 workers only to stall the proceedings of recovery. 8. The impugned notice clearly indicates that the property is put to auction on "as is where is" basis. In light of the aforesaid therefore, no further clarification is required to be made by this Court. It would be open for the petitioners to again lodge their claim before respondent No.1 Bank and take appropriate recourse available under the law as the issue is still pending before the Labour Court. 9. The petitioners are not concerned with the property as such, but they are concerned with the dues, if found to be legal and due and therefore, it would be open for the petitioners to lodge their claim for recovery of such amount as the property is to be sold on "as is where is" basis. The petition is misconceived and the same is filed on the eve of the e-auction only to see that the proceedings of auction under the SARFAESI Act are not undertaken. The petition is misconceived and the same is filed on the eve of the e-auction only to see that the proceedings of auction under the SARFAESI Act are not undertaken. It may further be noted that after issuance of the public notice, petitioner No.1 approached the authority under the Payment of Wages Act by way of filing P.W. Application No.341 of 2013, wherein the Labour Court has already passed an order dated 21.2.2015. As far as the petitioners are concerned, they are not directly concerned with any proceedings under the SARFAESI Act. The notice itself indicates that a symbolic possession as provided under Section 13(4) of the SARFAESI Act was taken at least on the date on which the impugned notice is issued on 27.2.2015. It may be noted that the action under the SARFAESI Act is between the Bank and the borrower and the security given by the borrower is subject matter of the impugned notice. In light of the orders passed by this Court, no interference under Article 226 of the Constitution of India is required as the auction notice was given by the respondent Bank after following due process of law. 10. The petition is thus liable to be rejected and the same is hereby rejected. There shall be no order as to costs. Petition rejected.