Anil Kumar v. State Bank of India, Mumbai, through its Chairman-cum-Managing Director
2018-10-08
RAJESH SHANKAR
body2018
DigiLaw.ai
ORDER : The present writ petition has been filed for quashing letter No. SAMB/CLO-III/371 dated 24.07.2018 (Annexure-6 to the writ petition) whereby the compromise proposal accepted by the respondent-Bank in terms with the letter dated 27.03.2018 has been rejected without any basis before the time schedule for making payment of the settlement amount frustrating the efforts of the petitioner to deposit the balance settlement amount only with a view to forfeit the amount already deposited by the petitioner in terms with the compromise acceptance letter dated 27.03.2018. Further prayer has been made for issuance of direction upon the respondent-Bank to revive the earlier compromise acceptance letter dated 27.03.2018 extending the time for payment of the balance amount of settlement, as the petitioner was always ready and willing to make payment of the balance settlement amount, however, subsequently violating the terms and conditions of the compromise acceptance letter issued by the respondent-Bank itself, letter No. SAMB/CLO-III/397 dated 13.08.2018 was issued offering the petitioner to deposit the settlement amount of Rs.8,43,19,448/- within a period of six months. The petitioner has also prayed for quashing the possession notice dated 23.08.2018 (Annexure-7 to the writ petition) issued by the authorized officer of the respondent-Bank under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 [hereinafter referred to as ‘the Rules, 2002’] whereby the immovable properties mortgaged in favour of the respondent-Bank have been taken over exercising the power conferred under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the SARFAESI Act, 2002’) inasmuch as the possession notice dated 23.08.2018 is completely contrary to the settlement offer given by the respondent-Bank itself in terms with the letter dated 13.08.2018 granting six months’ time to the petitioner for making payment of the entire settlement amount. 2. Learned counsel for the respondent-Bank, at the very outset, raised preliminary objection regarding the maintainability of the present writ petition. It is submitted that the petitioner has invoked the extra ordinary writ jurisdiction of this Court without taking recourse of alternative/efficacious/statutory remedy provided under the law including Sections 17 & 18 of the SARFAESI Act, 2002, as the respondent-Bank has already issued the possession notice under Rule 8(1) of the Rules, 2002 exercising power under Section 13(4) of the SARFAESI Act, 2002. 3.
3. Having heard learned counsel for the parties and going through the contents of the present writ petition, it appears that one of the prayers made by the petitioner is for quashing the action taken by the respondent-Bank under Section 13(4) of the SARFAESI Act, 2002. 4. The Hon’ble Supreme Court in the case of United Bank of India Vs. Satyawati Tondon & Ors. reported in (2010) 8 SCC 110 , has held as under: “42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression “any person” used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.” 5. So far as invoking of writ jurisdiction in the matters of realization of loan by the financial institutions are concerned, the Hon’ble Apex Court in a recent judgment rendered in the case of Authorized Officer, State Bank of Travancore & Anr. Vs. Mathew K.C. reported in (2018) 3 SCC 85 while considering the earlier judicial pronouncements made in this regard, has held thus: “15. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense.
In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:- “46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.” 16. The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference.” 6.
The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference.” 6. Considering the facts and circumstances of the case as well as the provisions of the SARFAESI Act, 2002, I am not inclined to entertain the present writ petition, at this stage. The present writ petition is accordingly dismissed as not maintainable. However, the petitioner is at liberty to take recourse before the appropriate Forum, as provided under law, if so advised. Petition dismissed.