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2017 DIGILAW 948 (GAU)

Mangi Devi Surana v. Debts Recovery Tribunal, Guwahati

2017-07-19

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. S. Chamaria, the learned counsel for the petitioner. 2. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 27.03.2017 passed by the learned Debts Recovery Tribunal, Guwahati in O.A. No.91/2017. By the said order, while notice of the application was issued to the petitioner, the learned Tribunal, as an interim measure, directed the defendants including the petitioner herein to disclose their movable and immovable properties/assets owned by them and further restraining them from transferring, alienating or disposing or otherwise dealing with any part of the properties/assets mentioned in Schedule-B thereof. 3. The learned counsel for the petitioner has referred to 3 sanction letters dated 08.03.2012, 17.12.2012 and 15.07.2013 to project that initially a loan of Rs.1.5 Crore was availed by offering full security which is mentioned in the said sanction letters and subsequently, loan was enhanced to Rs.1.9 Crore and corresponding security was also enhanced and the properties and securities are valued at Rs.2.5 Crore and the loan was enhanced to Rs.2.87 Crore and the other book debts, stocks etc. which were given as security was valued at Rs.1.87 Crore. It is submitted that while filing an application, the application/Bank had projected that the estimated value of the secured assets of Rs.1,56,98,700/-, which is arbitrary and contrary to their own sanctioned letters. It is further submitted that along with the movable properties offered as security, stocks and trade were also hypothecated, which also should have some value and the photocopy of ledger statements were time to time furnished to the Bank. It is projected that in view of above, the securities available with the respondent /Bank is estimated more than the loan amount and therefore, by portraying an incorrect picture, showing lower estimate value of the properties, the respondent/Bank had managed to obtain the interim order from the learned Debts Recovery Tribunal, Guwahati on 27.03.2017. 4. The learned counsel for the petitioner has relied in the case of Sneh Gupta vs. Devi Sarup & others, 2009(6) SCC 194 . In paragraph-33 thereof on which the learned counsel for the petitioner had relied on the same is quoted below: “33. The High Court moreover was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction, the High Court had a limited role to play. In paragraph-33 thereof on which the learned counsel for the petitioner had relied on the same is quoted below: “33. The High Court moreover was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High court while exercising its supervisory jurisdiction to enter into the disputed question of fact. It has not been found by the High Court that the findings arrived at by the learned Additional District Judge were perverse and/ or in arriving the said findings, the learned Additional District Judge failed and/ or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any other well known principle of judicial review was found to be applicable.” 5. The learned counsel of the petitioner also placed reliance in the case of L&T Finance Ltd. Vs. Arup Kumar Bera & another reported in AIR 2014 KOL 78 to project that if the order passed by the subordinate court/ Tribunal is perverse and arrived at without taking into consideration the irrelevant factors and has not considered the relevant factors, High Court does have the power under Article 227 of the Constitution of India to exercise the power of judicial review against the order passed by the learned Tribunal. It is submitted that as the valuation of property as described in the sanction letters were a part of the O.A., the learned Tribunal committed jurisdictional error, without going through the records and without hearing the petitioner, in passing the interim order. 6. This Court finds on perusal of the contents of both the judgments cited by the learned counsel for the petitioner. In both the cases, there is a one common factor that the order in challenge were passed on the findings arrived at by the courts below. However, in the present case in hand, the interim order which was passed, cannot be said to be findings arrived at finally by the learned Tribunal. It is seen that the learned Tribunal does have the jurisdiction under Section 19(18) of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 to pass an interim order. However, in the present case in hand, the interim order which was passed, cannot be said to be findings arrived at finally by the learned Tribunal. It is seen that the learned Tribunal does have the jurisdiction under Section 19(18) of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 to pass an interim order. Therefore, in the opinion of this Court, both the cases cited by the learned counsel for the petitioner is distinguishable on facts. As in the present case, no finding was arrived at by the learned Tribunal so as to cause any prejudice to the petitioner herein. 7. It is also submitted by referring to the Entries in the relevant Column No.3(a) of the O.A., it is the admitted case of the respondent/Bank that Column Nos.(iv)(v) thereto does not show that the assets held by the petitioner was not sufficient to cover the total claim and the learned Tribunal did not consider the said facts before passing an order for disclosure of their movable and immovable properties. 8. Having heard the learned counsel for the petitioner, it appears that while issuing summons, an order of interim nature has been issued by the learned Tribunal to the effect that– (1) the defendants were directed to disclose their movable and immovable properties/assets, and (2) the defendants have been restrained from alienating, transferring or otherwise dealing with any part of the assets mentioned in the Schedule-B. This Court is of the view that under Section 19(18) of the Recovery of Debts Due to Banks and Financial Institution Act, 1993, the learned Debts Recovery Tribunal has the jurisdiction to pass interim order. Moreover, notwithstanding the fact that under Section 18 of the said Act, this Court has the power to exercise jurisdiction under Article 226 and 227 of the Constitution of India in relation to the matters specified in Section 17 of the said Act. Nonetheless, the said Act also provides for alternative efficacious remedy by way of filing an appeal under the said Act. As this Court finds that there was a injunction against transferring of assets, the second part of the impugned order restraining transferring of assets, which is to prevent unauthorized transfer of the secured assets. Therefore, this is not found to be a fit case for admitting this application as the said order is appealable. 9. As this Court finds that there was a injunction against transferring of assets, the second part of the impugned order restraining transferring of assets, which is to prevent unauthorized transfer of the secured assets. Therefore, this is not found to be a fit case for admitting this application as the said order is appealable. 9. However, this Court is inclined to accept the submissions made by the learned counsel for the petitioner insofar the interim order which relates to direction for the disclosure of movable or immovable properties, which was passed in the impugned order on the ground that as per the contents of the sanction letters, the value of the immovable properties appears to be more than the claim amount. However, while declining to interfere with the impugned order, this Court is inclined to grant liberty to the petitioner to move the Debts Recovery Tribunal, Guwahati, in respect of the direction for disclosure of movable or immovable properties, by filing an appropriate application before the said Tribunal for recalling or review of the said direction. Needless to say that the petitioner shall be entitled to move the said Tribunal for suspension or modification of the order of disclosure of movable or immovable properties/assets and in the event, if such an application is moved before the Tribunal, the said learned Debts Recovery Tribunal, Guwahati, will hear and dispose of the matter in accordance with law. 10. With the above observation and direction, this petition stands closed.