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2016 DIGILAW 793 (UTT)

Gemini Pharmaceuticals Limited v. State Bank of India

2016-11-07

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. The petitioners before this Court have invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. In a matter relating to the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (from hereinafter referred to as “the SARFAESI Act”) proceedings have been initiated against the petitioners by the Bank under Section 13 of the SARFAESI Act. 2. Petitioner in WPMS No. 578 of 2015 is the actual borrower wherein the petitioner has taken a loan from the State Bank of India, Branch New Mandi, Muzaffarnagar. Admittedly, the petitioner has not repaid the loan. Petitioner in WPMS No. 2858 of 2014 is the guarantor to the said loan and also comes under the definition of the “borrower” under Section 2(f) of the SARFAESI Act. 3. Evidently, it appears that after the loan was not paid by the petitioners to the bank in time, the loan was declared as non-performing assets by the Bank and proceedings under Section 13 of the SARFAESI Act have been initiated against the petitioners. 4. According to the learned counsel for the Bank, since the amount has not been repaid, proceedings have been initiated against them under Section 13(4) of the SARFAESI Act, in which as of now, the possession of the mortgage property, which is a land and building have been taken over. Aggrieved, they filed the present writ petitions before this Court. 5. A learned Single Judge of this Court vide orders dated 12.03.2015 (passed in WPMS No. 578 of 2015) and 24.06.2015 (passed in WPMS No.2858 of 2014) had granted interim orders to the petitioners. 6. The short question before this Court is that since the petitioners have a remedy to file an appeal under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal, why that remedy has not been availed by the petitioners. In reply thereof, the petitioners have relied upon a decision of the Hon’ble Apex Court in the case of Standard Chartered Bank Vs. V. Noble Kumar and others reported in (2013) 9 SCC 620 , wherein the Hon’ble Apex Court has laid down that the remedy under Section 17 of the SARFAESI Act would only lie if the bank or the financial institution, as the case might be, has not taken possession of the property. V. Noble Kumar and others reported in (2013) 9 SCC 620 , wherein the Hon’ble Apex Court has laid down that the remedy under Section 17 of the SARFAESI Act would only lie if the bank or the financial institution, as the case might be, has not taken possession of the property. According to the petitioners, this possession has not been taken over by the bank. 7. Contradicting the statement of the petitioners, the learned counsel for the bank has stated that both symbolic and actual physical possession has already been taken over. In view of the above, the only remedy before the petitioners is Debts Recovery Tribunal. This matter cannot be looked into by this Court in a writ petition. The petitioners must invoke their remedy before the Debts Recovery Tribunal in accordance with law. 8. In view thereof, the writ petitions stand dismissed on the ground of alternative remedy. Interim orders, if any, stand vacated. 9. It is made clear that all objections raised by the petitioners, including their case of possession which the petitioners claim has not being taken as of now, shall be available to the petitioners before the Debts Recovery Tribunal.