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2018 DIGILAW 878 (CAL)

Jayanta Mondal v. United Bank of India

2018-12-03

DEBASISH KAR GUPTA, SHAMPA SARKAR

body2018
JUDGMENT : Debasish Kar Gupta, J. In re : C.A.N. 7279 of 2018 None appears on behalf of the respondent/Bank when the matter is called on. No accommodation is prayed for. 2. Let the affidavit of service filed in Court today be kept with the record. 3. This is an application which arises out of an appeal preferred against a judgment and order dated July 24, 2017 passed in the matter of Jayanta Mondal vs. United Bank of India & Ors.(In re: W.P. 19089(W) of 2017). By virtue impugned judgment and order, the writ application of the appellant was dismissed. 4. The subject matter involved in the main prayer, which was made by way of mercy for a direction upon the respondent/Bank for granting further time for repayment of his due. According to the appellant, the respondent/Bank made an offer dated November 11, 2015 expressing its willingness to accept a sum of Rs. 75,000/- (Rupees Seventy-five thousand) in full and final settlement of its claim. According to the appellant, he was not in a position to accept the above offer at that material point of time. As a result, the aforesaid offer stood lapsed. 5. According to the learned Counsel appearing on behalf of the appellant, a prayer was made by the appellant before the respondent/Bank by a communication dated August 27, 2016, i.e. after a period of 9 months, for granting further time to repay the aforesaid amount of Rs. 75,000/-(Rupees Seventy-five thousand). 6. In reply to the said letter, the respondent/Bank issued a demand notice under sub-section) of Section 13 read with subsection( 13) of section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act, 2002). On the same date, the respondent/Bank issued another notice requesting the appellant to remove all his personal belongings from the above mentioned property within ten days from the date of notice, failing which, the respondent/Bank, will be constrained to take necessary steps. Thereafter, the physical possession of the property was taken over by the respondent/Bank. 7. On the same date, the respondent/Bank issued another notice requesting the appellant to remove all his personal belongings from the above mentioned property within ten days from the date of notice, failing which, the respondent/Bank, will be constrained to take necessary steps. Thereafter, the physical possession of the property was taken over by the respondent/Bank. 7. According to the provisions of Section 13 of the SARFAESI Act, 2002, notwithstanding anything contained in section 69A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced, without the intervention of the Court or Tribunal, by such creditor in accordance with the provisions of the above Act. Sub-section(4) of Section 13 of the above Act provides that in case the borrower fails to discharge his liability in full within the period specified in sub-section (2) of Section 13 of the SARFAESI Act, 2002, the secured creditor may take recourse to one or more of the following measures to recover his secured debt; "(i) Take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured asset. (ii) Take over the management of the business of the borrower, including the right to transfer, by way of lease, assuagement or sale for realizing the secured asset. Provided that the right to transfer by way of lease, assignment or sale should be exercised only where the substantial part of the business of the borrower is held as security for the debt." 8. In the event, any person (including the borrower) is aggrieved by any of the measures referred to sub-section(4) of Section 13 taken by the secured creditor or his authorised officer then he may make an application under the provisions of Section 17 of the SARFAESI Act, 2002 along with the necessary fees as may be prescribed to the Debt Recovery Tribunal having jurisdiction in the matter within 45 days from the date of which such measures had been taken. 9. In spite of our repeated requests, the learned Counsel appearing for the appellant fails to give reply to our query with regard to the steps taken by the appellant under the aforesaid provisions of the SARFAESI Act, 2002. 10. 9. In spite of our repeated requests, the learned Counsel appearing for the appellant fails to give reply to our query with regard to the steps taken by the appellant under the aforesaid provisions of the SARFAESI Act, 2002. 10. Needless to point out that in case of failure on the part of any person including the borrower to take recourse to law under the aforesaid provisions of SARFAESI Act, 2002, a Writ Court has no jurisdiction to interfere with such grievance of any person (including the borrower). 11. In view of the above, we do not find any error and/or infirmity in the order passed in the writ application. 12. Since nothing further remains to be decided in this appeal, this appeal is treated as on day's list and this appeal and the application are dismissed. 13. This order will not however prevent the appellant from taking steps as permissible under the law, if any. 14. There will be no order as to costs. 15. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.