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Uttarakhand High Court · body

2016 DIGILAW 79 (UTT)

State Bank of India v. Xenium Care Sciences Ltd.

2016-02-24

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Jospeh, C.J. (Oral) Appellants are the respondents in the writ petition. Proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “SARFAESI Act”) were taken against the writ petitioners, who are the respondents in the appeal. The writ petition was lodged against the same. The learned Single Judge granted relief to the writ petitioners/respondents noting that the intention of the writ petitioners is bonafide in paying the arrears to the bank, which they are ready to pay in installments and it was, accordingly, that the following order was made: “2. In the light of aforesaid facts and circumstances, the following order is made: (i) The respondent bank will let the petitioner know, within two weeks, the entire breakup of the arrears of the loan as well as the interest thereon. No other expenses like legal expenses, publication of notice in the newspaper will be added in calculating the arrears. (ii) The petitioner will genuinely pay such arrears in six installments payable and every such installment shall be payable after two months. (iii) Meanwhile, it is hereby directed that the bank will immediately remove its possession over the factory in question and the petitioner shall be permitted to run the same in order to yield some manufacturing there. By all concern, no impediment will be caused in his working in any manner whatsoever. (iv) If the petitioner makes any default in making compliance of either of these conditions, then the bank will be at liberty to bring all these facts to the notice of the local District Judge, Pauri Garhwal, and with his permission, will be at liberty to take the possession of the factory itself. (v) If the bank does not cooperate in making compliance of the order of this Court, then the petitioner will be at liberty to approach the police and to take the possession of the factory after breaking open the lock of the same.” 2. Feeling aggrieved, the appellants are before us. 3. We heard Mr. D.S. Patni, learned counsel for the appellants and Mr. Shobhit Saharia, learned counsel for the respondents. 4. Learned counsel for the appellants would point out that the learned Single Judge erred in excluding the expenses as he has done. Feeling aggrieved, the appellants are before us. 3. We heard Mr. D.S. Patni, learned counsel for the appellants and Mr. Shobhit Saharia, learned counsel for the respondents. 4. Learned counsel for the appellants would point out that the learned Single Judge erred in excluding the expenses as he has done. He would further submit that the learned Single Judge has not provided against the contingency of the respondents/writ petitioners dealing with the property to the prejudice of the appellants, as the possession has already been taken by the Bank. Next, he would submit that a substantial amount must be directed to be paid initially and, regarding taking of possession, it may be directed that possession can be taken as per law in case of breach of the conditions by the writ petitioners. 5. Learned counsel for the writ petitioners/ respondents would submit that the writ petitioners undertake that they will not transfer the property consisting of plant, machinery and the building and that they will not create any third party interest till the outstanding amount of the Bank is repaid. He would further submit that an amount of Rupees 25 Lakhs as the first installment will be paid on or before 20.03.2016. 6. In such circumstances, we dispose of the appeal recording the undertaking given by the writ petitioners/ respondents and further modifying the judgment as follows: We vacate the direction that no other expenses like legal expenses, publication of notice in the newspaper will be added in calculating the arrears. In other words, it will be open to the Bank to include all the expenses, which it actually incurred as per law. The first installment is to be paid by the writ petitioners/respondents on or before 20.03.2016 in a sum of Rupees 25 Lakhs. We record the undertaking of the writ petitioners/respondents that they will not transfer the property consisting of plant, machinery and the building to anyone nor will they create any third party interest till the entire amount due to the appellants is cleared off. In case of default, we further direct that it will be open to the Bank to take possession as provided in law. The judgment of the learned Single Judge stands modified as above.