Black Diamond Techno Pvt. Ltd v. State Bank of India
2015-01-20
SHREE CHANDRASHEKHAR
body2015
DigiLaw.ai
ORDER : The learned counsel appearing for the petitioners submits that the defect as indicated at Sl. No.1 has been cured and in so far as defect no. 2 is concerned, that may be ignored. 2. Seeking quashing of auction notice dated 28.11.2014 published in daily newspapers namely, The Telegraph and Prabhat Khabar both dated 28.11.2014, the present writ petition has been filed. 3. Briefly stated, the respondent-Bank sanctioned credit facility of Rs.1.10 crores to the petitioner-company in the year, 2008 which was enhanced to 4.5 crores vide sanction letter dated 18.02.2013. The petitioners for availing the said credit facilities provided sufficient securities by mortgaging immovable properties, which were valued at Rs.2.67 crores. A notice under Section 13(2) of the SARFAESI Act, 2002 was issued on 15.05.2014. The petitioners preferred representation under Section 13(3A) of the Act however, without disposing of the said representation under Section 13(3A), possession notice dated 16.07.2014 under Section 13(4) of the Act was issued on 28.07.2014. The notices under Sections 13(2) and 13(4) of the SARFAESI Act, 2002 have been challenged in W.P. (C) 4030 of 2014. During the pendency of the writ petition, another notice under Section 13(4) was issued on 28.10.2014 and thereafter, auction notice dated 28.11.2014 was issued. The petitioners have been served letter dated 28.11.2014 which was dispatched on 01.12.2014 by post whereby, Eauction notice has been intimated to the petitioners. The petitioners requested for supply of valuation report and a copy of valuation report dated 14.08.2014 has been provided to the petitioners which indicates that the reserve price for the property has been fixed for an amount of Rs.1.3 crores whereas, the market value of the mortgaged property is Rs.4.96 crores. 4. Heard learned counsel appearing for the parties and perused the documents on record. 5. Mr. M. Sohail Anwar, the learned senior counsel appearing for the petitioner-company referring to various provisions under the Security Interest (Enforcement) Rules, 2002 submits that the auction sale notice has been issued in breach of the mandatory provisions under the 2002Rules and therefore, the auction sale notice dated 28.11.2014 is liable to be quashed. In support of his contention, the learned senior counsel has relied on decision in “Mathew Varghese Vs. M. Amritha Kumar & Ors.”, reported in (2014) 5 SCC 610 . 6.
In support of his contention, the learned senior counsel has relied on decision in “Mathew Varghese Vs. M. Amritha Kumar & Ors.”, reported in (2014) 5 SCC 610 . 6. As against the above, the learned counsel appearing for the respondent-Bank relies on a decision in “United Bank of India Vs. Satyawati Tondon and Others”, reported in (2010) 8 SCC 110 and submits that the present writ petition is not maintainable. The petitioners have efficacious remedy of an appeal under the SARFAESI Act, 2002. 7. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 8. In “United Bank of India Vs. Satyawati Tondon and Others” reported in (2010) 8 SCC 110 , the Hon'ble Supreme Court after considering the object and scheme of the Debts to Financial Institution and the SARFAESI Act, 2002 has held that Act of 2002 is a complete code and it provides efficacious alternative remedy to a borrower. Though, in view of the difficulties/hardship faced by the borrower when an action is initiated under the SARFAESI Act, 2002, Section 13 (3A) was introduced in the SARFAESI Act, 2002 w.e.f from 11.11.2004. In “United Bank of India Vs. Satyawati Tondon and Others” reported in (2010) 8 SCC 110 , the Hon'ble Supreme Court has held as under : 43. “.......... the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues etc. the High Court must keep in mind that the legislations enacted by parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.” 55.
Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.” 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.” 9. From the aforesaid, I find that there is efficacious remedy available to the petitioners. The petitioners in the present proceeding have not disclosed an exceptional circumstance warranting exercise of jurisdiction by this Court and therefore, the present writ petition must be held not maintainable. Accordingly, the writ petition is dismissed as not maintainable. The petitioners are at liberty to move the Debts Recovery Tribunal within four weeks.