Wing Cdr. IBK Singh Memorial Society for Arts & Academics v. State Bank of India
2019-06-10
DHARAM CHAND CHAUDHARY, JYOTSNA REWAL DUA
body2019
DigiLaw.ai
JUDGMENT : Dharam Chand Chaudhary, J. This writ petition has been filed with the following prayers: ?a) To set aside all the measures undertaken by the respondent-Bank under the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. b) The impugned notice u/s 13(2) dated 15.05.2017 and Order Annexure P-12, copy of Possession Notice dated 29.07.2017 Annexure P-8, Copy of D.M. order Annexure P-10, Copy of sale Auction Notice dated 7.05.2019 Annexure P-16 may be ordered to be quashed and the Respondent Bank be further restrained from initiating any further action under the Securitization Act against the Petitioner and their movable and immovable properties in any manner whatsoever, through any mode and further break open the locks and hand over the physical possession of the Property to the Applicant. c) To direct the Respondent to produce the actual amount paid by the petitioner and the actual amount payable till today as per the Terms Loan Agreement dated 2.06.2015.? 2. On the previous date, learned Vacation Judge has passed a detailed order highlighting therein all the developments having taken place and the orders passed by the Debt Recovery Tribunal (I), Chandigarh twice. It has also been noticed that in view of the proceedings pending before learned Debts Recovery Tribunal, the maintainability of the present writ petition in this Court is doubtful. This order reads as follows: ?Notice. Ms. Divya Sood, learned Deputy Advocate General, appears and accepts service of notice on behalf of respondent No.2/State. Issue separate dasti notice to the respondent No. 1, returnable for 10th June, 2019. Petitioners to take steps for the service of respondent No. 1, during the course of the day and also to ensure that the service of said respondent is effectuated before the next date of hearing. List on 10th June, 2019, as prayed for. CMP No. 5038 of 2019 Allowed and disposed of. CMP No. 5039 of 2019 The immediate grievance of the petitioners is in respect of Annexure P-16 dated 07th May, 2019, whereby, the Authorizing Officer of the respondentbank has notified Public E-Auction of secured assets mortgaged/charged to be held on 10.06.2019.
List on 10th June, 2019, as prayed for. CMP No. 5038 of 2019 Allowed and disposed of. CMP No. 5039 of 2019 The immediate grievance of the petitioners is in respect of Annexure P-16 dated 07th May, 2019, whereby, the Authorizing Officer of the respondentbank has notified Public E-Auction of secured assets mortgaged/charged to be held on 10.06.2019. The perusal of the record appended with the writ petition reveals that the petitioners have already approached the learned Debts Recovery Tribunal-I, at Chandigarh, in S.A. No. 7 of 2018, inter alia laying challenge to notice issued to them on 12th December, 2016, under Section 13 (2) of SARFAESI Act as well as possession notice dated 29th July, 2017. There are other reliefs prayed for by the petitioners in this Securitization Application. To this application, reply was filed by the respondent-bank, submitting therein that subsequent to the demand notice dated 12th December, 2016 issued under Section 13 (2) of SARFAESI Act, challenged by the petitioners in Securitization Application, the petitioners had deposited some amount. Whereafter, the account of the petitioner had become regular. But, their accounts again became NPA on 10th May, 2017, which led the respondentbank to issue fresh notice under Section 13 (2) of SARFAESI Act on 15th May, 2017. It was further submitted by the bank in its reply that neither the demand notice dated 15th May, 2017 duly received by the borrowers and guarantors nor the possession notice dated 19th January, 2018 have been challenged by the petitioners. This Secruitization Application is pending for adjudication and the record reveals that this is now fixed for arguments on 15th June, 2019. The record also reveals that the respondent bank filed its own separate Original Application bearing No. 1741 of 2018 against the petitioners for recovery of total sum of Rs1,98,63,040,71p (Rupees One Crore Ninety Eight Lakh Sixty Three Thousand Forty point Seventy One only). This Original Application has been allowed by the learned Debts Recovery Tribunal-I, Chandigarh, vide its order dated 07th March, 2019. It is subsequent, to allowing the Original Application No. 1741 of 2018, that bank had issued auction notice dated 07th May, 2019.
This Original Application has been allowed by the learned Debts Recovery Tribunal-I, Chandigarh, vide its order dated 07th March, 2019. It is subsequent, to allowing the Original Application No. 1741 of 2018, that bank had issued auction notice dated 07th May, 2019. The petitioners moved I.A. No. 303 of 2019 in S.A. No. 7 of 2018, pending adjudication before the learned Debts Recovery Tribunal-I, Chandigarh, seeking preponement of S.A. No. 7 of 2018 as well as for stay of proceedings including operation of sale notice dated 07th May, 2018. This application was decided on 31st May, 2019 by the learned Debts Recovery TribunalI, Chandigarh, noticing the contentions of the bank that S.A. has become infructuous, as earlier notices issued by the bank under Section 13(2) as well as 13 (4) of SARFAESI Act, have been withdrawn, but on subsequent default the bank has issued fresh notices, which have not been challenged by the petitioners. The S.A. No. 7 of 2018 has now been fixed for arguments, before the learned Debts Recovery Tribunal-I, Chandigarh, on 15th June, 2019. Learned counsel for the petitioners has submitted that no challenge to the order allowing Original Application No. 1741 of 2018 has been laid. It is for the petitioners to avail alternative remedies available to them in terms of provisions of SARFAESI Act, be it against the order dated 7th March, 2019, allowing the Original Application No. 1741 of 2018, filed by the respondent bank for recovery of loan amount or subsequent notices issued to them. Presently the Securitization Application is already pending adjudication before the learned Debts Recovery Tribunal-I, Chandigarh and as observed earlier is now fixed for 15th June, 2019. Maintainability of present writ petition during the pendency of the proceedings before the learned Debts Recovery Tribunal-I, Chandigarh is another question to be looked into. In view of the above facts, list the matter before the Appropriate Bench, at the pleasure of Hon'ble the Acting Chief Justice on 10th June, 2019.? 3. The facts reveal that the loan account of the petitioner has been declared NPA on 10.12.2016 by the respondent-Bank. The total term loan sanctioned by the respondent-Bank under the Scheme ?School Plus? is Rs.1,75,00,000/-. After the account of the petitioner having declared NPA, the respondent-Bank issued notice under Section 13(2) of the SARFAESI Act.
3. The facts reveal that the loan account of the petitioner has been declared NPA on 10.12.2016 by the respondent-Bank. The total term loan sanctioned by the respondent-Bank under the Scheme ?School Plus? is Rs.1,75,00,000/-. After the account of the petitioner having declared NPA, the respondent-Bank issued notice under Section 13(2) of the SARFAESI Act. Irrespective of a sum of Rs.45,09,276/- having already been deposited by the petitioner to liquidate the liability towards outstanding loan amount, till January, 2018 a sum of Rs. 61,34,276/- was paid by the petitioner. Even another notice under Section 13(2) of the Act was slapped by the respondent on 15.7.2017 without there being any mention of the date of NPA of the loan account therein. Even symbolic possession notice was also served upon the petitioner on 29.7.2017 on which a request was made for OTS on 30.10.2017, however, declined. When a letter to take over the physical possession of the assured assets was received, the petitioner preferred S.A. No. 7 of 2018 in the Debts Recovery Tribunal but of no avail as the possession was taken over by respondent No. 2 and handed over the same to respondent No. 1. Even the sale notice was also challenged before learned Tribunal, however, the Tribunal was reluctant to hear the petitioner. Fortunately, respondent no. 1 did not find any purchaser and as such the notice has turned infructuous. In O.A. No. 1741 of 2018 preferred by the respondent-Bank, the petitioner could not appear hence proceeded against ex-parte. The application filed for setting aside the ex-parte order was also dismissed and to the contrary, the respondent got issued another sale notice for auction on 7.2.2019 for re-auction on 10.6.2019. It is the entire proceedings having taken place in this matter before the Debts Recovery Tribunal and the notices issued under Section 13(2) as well as under Section 13(4) of the SARFAESI Act has been sought to be quashed. 4. It is worth mentioning that the proceedings against the petitioner under the SARFAESI Act have already been initiated by the respondent-Bank. Therefore, the petitioner has equally alternative and efficacious remedy available under the provisions of the Act itself. The submissions of the petitioner are that irrespective of it was regular in repayment of the loan amount, the proceedings under the Act should have not been initiated.
Therefore, the petitioner has equally alternative and efficacious remedy available under the provisions of the Act itself. The submissions of the petitioner are that irrespective of it was regular in repayment of the loan amount, the proceedings under the Act should have not been initiated. We, however, are not inclined to entertain the same as alternative remedy is available to the petitioner under the Act itself. The petitioner, after issuance of demand notice dated 12.12.2016 by the respondent-Bank had deposited some amount and thereby made its account regular. The account, however, again declared NPA on 10.5.2017 which led the respondent-Bank to issue fresh notice under Section 13(2) of SARFAESI Act on 15.5.2017. The said notice seems to be neither received by the petitioner nor the guarantor. Not only this, the notice to take over the possession dated 19.1.2018 has also been challenged further. The securitization application, as noticed supra, is pending for adjudication and fixed for the purpose before learned Tribunal on 15.6.2019. On the other hand, the original application registered as 1741/2018 filed by the respondent-Bank against the petitioner for recovery of sum of Rs. 1,98,63,040.71 paise stands allowed vide order dated 7.3.2019. It is thereafter the auction notice dated 7.5.2019 has been issued. The application I.A. No. 303/2019 in S.A. No. 7 of 2018 seeking preponment of the S.A. and also stay of the proceedings, including auction notice dated 7.5.2018 had turned infructuous because the earlier notices issued by the respondent-Bank under Section 13(2) as well as 13(4) of the SARFAESI Act stood withdrawn in view of the petitioner having deposited the amount in its account and thereby made the same regular. The S.A. No. 7/2018 has otherwise been fixed for arguments on 15.6.2019. The order passed in OA No. 1741/2018 has not been challenged by the petitioner any further. It is for this reason also the petitioners, if so desire, may avail the alternative remedies available to it in terms of the provisions contained under the SARFAESI Act. We are not adverting to other and further contentions raised in this petition in view of the alternative remedy available to the petitioner and also the ratio of the judgment of the Supreme Court in Authorized Officer, State bank of Travncore & another vs. Mathew K.C., (2018) 3 SCC 85 . The writ petition is, therefore, disposed of, so also the pending application(s), if any.