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2019 DIGILAW 234 (JK)

S. Joginder Singh v. Bank of Baroda

2019-04-16

GITA MITTAL, SINDHU SHARMA

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Judgment IA No.1/2019 By this application, the applicant/respondent No. 1 seeks to place the affidavit in terms of order of this Court dated 3rd of April, 2019 on record. This application is allowed. Affidavit filed along with the application is taken on record. OWP No.1565/2018 1. We have heard learned counsel for the parties. 2. By way of the writ petition, the appellant has assailed the order dated 22nd of January, 2018 passed by the Court of 2nd Additional District Judge, Jammu (Debt Recovery Tribunal Under SARFAESI Act), rejecting the application filed by the respondents under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). 3. In these proceedings the appellant had assailed the action of the respondents in issuing a notice taking over possession of property which had been secured to the respondent against financial facility which had been enjoyed by the writ petitioner from the respondent Bank. 4. The learned District Judge had rejected the writ petitioner’s challenge which is premised on an objection that the impugned action was taken without issuance of its statutory notice. The learned District Judge had also held that the petitioner was bound by the demand notice dated 14th of July, 2010. However, for the reason that the respondent Bank had delayed taking action on this notice for more than seven years and that the writ petitioner had deposited the notice amount during the pendency of the application before the District Judge, it was held that the writ petitioner was entitled to know about any further outstanding amount. In this background, the learned District Judge had disposed of the application by the impugned order with the direction to the Bank to disclose to the petitioner the exact outstanding interest amounts to the appellant within a week’s time and granted two weeks’ time to the writ petitioner to liquidate the amount. 5. The writ petitioner is aggrieved by the further direction in the order dated 22nd of January, 2018 to the effect that in case the writ petitioner failed to deposit the demanded amount, it was open to the Bank to proceed under Section 13(4) of the SARFAESI Act on the basis of the earlier notice, without affording any right to the petitioner to challenge the said demand by way of proceedings under Section 17(A) of the SARFAESI Act. 6. 6. We are informed by Mr. Anil Mahajan, learned counsel for the respondent-Bank that pursuant to the impugned order dated 22nd of January, 2018, the respondent-Bank had issued a demand notice vide letter dated 31st of January, 2018, informing the writ petitioner about the outstanding amount Rs. 12,87,023/- with future interest and expenses. The respondent-Bank has filed an affidavit dated 10th of April, 2019 to the effect that the letter was sent to the petitioner under registered post. 7. The petitioner has disputed the receipt of this registered cover, However, it is not disputed that on 9th of August, 2018, a copy of this letter was physically served upon the writ petitioner. 8. It is submitted that the impugned order dated 22nd of January, 2018 passed by the learned District Judge is erroneous, inasmuch as, it takes away the valuable right to assail the demand raised by the respondent-Bank upon the writ petitioner and therefore, that such order cannot stand. 9. It cannot be denied that the writ petitioner, as a borrower of the Bank of Baroda, has been granted statutory right to appeal to the District Judge under Section 17(A) of SARFAESI Act and a further right to file the appeal under Section 18(B) of assailing an order made by the court of the District Judge under Section 17(A) before this Court. 10. In the instant case, however, by the order dated 22nd of January, 2018, the learned District Judge has directed that against the further demand of interest which the respondent-Bank was permitted to raise the right of appeal was not available to the respondent-Bank. For this reason, we are inclined to entertain the instant writ petition. 11. Without going into the controversy as to whether the letter dated 31st of January, 2018 placing the calculation of the interest demand was served by the registered post upon the writ petitioner or not, it is an admitted position that on 9th of August, 2018, another copy thereof has been admittedly received by the writ petitioner. 12. Mr. Mahajan has placed before this Court copy of letter dated 9th of August, 2018, addressed by the writ petitioner Sh. Joginder Singh to the Tehsildar, R.S. Pura, seeking 10 days’ time for adjustment of remaining amount. 13. Mr. 12. Mr. Mahajan has placed before this Court copy of letter dated 9th of August, 2018, addressed by the writ petitioner Sh. Joginder Singh to the Tehsildar, R.S. Pura, seeking 10 days’ time for adjustment of remaining amount. 13. Mr. Anil Sethi, learned counsel for the petitioner has submitted that without service of the interest demanded in terms of order dated 22nd of January, 2018, the respondent Bank was proceeding to take over the possession of the petitioner’s property and, in this regard had addressed a letter dated 2nd of August, 2018 to the Station House Officer, R.S. Pura, Jammu which communication has been placed on record. 14. It is explained by Mr. Sethi that the writ petitioner was coerced into making the request for the reason that the Station House Officer of Police Station R.S. Pura had responded to the Bank’s request dated 2nd of August, 2018 and the writ petitioner was imperative threat of his property being taken over. There would be substance in this submission. 15. Given the availability of the statutory remedy under Section 17(A) we are not inclined to go into the correctness or legality of the amount claimed by the respondent Bank by its communication dated 31st of January, 2018. 16. In view thereof the direction made with the order dated 22nd of January, 2018 to the extent that it takes away the remedy to make the application under Section 17(A) of the SARFAESI Act to the petitioner, is hereby set aside. 17. Subject to the applicant’s making the application under Section 17(A) of the SARFAESI Act in respect of the demand raised by the respondent-Bank by its letter dated 31st of January, 2018, within two weeks from today, interim order of stay regarding the taking over of the possession of the property of the petitioner shall continue for a period of two weeks from today. It shall be open to the District Judge, concerned to pass any interim order as may be deemed fit and proper in the facts and circumstances of the case. 18. Subject to compliance of any other requirements of law, in case the application under Section 17(A) of the SARFAESI Act is filed in terms of this order, the same shall not be rejected on the grounds of same being beyond the statutory period of limitation. 19. This writ petition is allowed to the above extent. 18. Subject to compliance of any other requirements of law, in case the application under Section 17(A) of the SARFAESI Act is filed in terms of this order, the same shall not be rejected on the grounds of same being beyond the statutory period of limitation. 19. This writ petition is allowed to the above extent. All pending applications shall stand disposed of. Nothing herein contained is an expression of opinion on the merits of the rival contentions.