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2020 DIGILAW 544 (GAU)

Goverdhan Prasad Atal v. Assam Gramin Vikash Bank

2020-06-02

M.R.PATHAK

body2020
ORDER : M.R. Pathak, J. 1. Heard Mr. J.C. Gaur, learned counsel for the petitioner and Mr. D. Banerjee, learned counsel for the respondents. 2. The petitioner herein is a businessman and owner of immovable property measuring 04 Katha - 0.375 Lecha under Dag No. 3420 covered by Patta No. 407 at Revenue Village Seuni Ali, Ward No. 19, Mouza - Jorhat Town Mouza No. 2, District - Jorhat, Assam, bounded by - North: land of Ashok Agarwala and Manoj Agarwala, South: A.T. Road and land of the petitioner, East: land of Bidyut Das and others and West: land of Jogmaya Hazarika and sons (hereinafter referred to as said land). 3. The petitioner decided to develop his said land and after obtaining necessary permission, he started construction of a multi storied RCC building, having 45 individual residential units/flats with financial assistance of the State Bank of India. It is contended that as the respondent Assam Gramin Vikash Bank offered more loans and also offered to take over the loans of SBI, therefore, the petitioner agreed with the terms of the respondent Bank. Initially, an amount of Rs. 235.74 lakhs was sanctioned by the respondent Bank to the petitioner as term loan and later it was enhanced to Rs. 435.74 lakhs. 4. It is submitted by the petitioner that because of certain unforeseen circumstances, such as demolition for reconstruction of a bridge on the road having access to his said project on his land and owing to downward trend in the Real Estate market, etc. his said project got delayed. 5. It is stated that the petitioner anticipating problems in timely repayment of loans though he requested the respondent Bank to rephrase or rehabilitate his loan account, but the respondent Bank delayed the matter in deciding the same. 6. On 31.03.2016 as well as in May, 2016 the respondent Bank issued Notice under Section 13(2) read with Section 13(13) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act, in short) to the petitioner, against which he submitted representations and out of those representations, the respondent Bank rejected two of his representations. 7. It is contended by the petitioner that the respondent Bank while rejecting his representations did not disclose any grounds and that his other representations are pending for disposal. 8. 7. It is contended by the petitioner that the respondent Bank while rejecting his representations did not disclose any grounds and that his other representations are pending for disposal. 8. It is also contended by the petitioner that the respondent Bank continued its discussion with the petitioner to settle the dues payable by him and he continued to make regular deposits with the said Bank and that the respondent Bank did not take any further action against him under the SARFAESI Act. 9. Petitioner stated that the respondent Bank on 13.11.2018 issued a Notice under Section 13(4) of the SARFAESI Act. But on 19.11.2018 the said Bank had withdrawn the same. However, the respondent Bank again on 21.11.2018 issued a fresh Notice of Possession with regard to his said land along with the RCC building constructed over it, for the balance outstanding amount of Rs. 5,28,45,661/- payable to the respondent Bank as on 19.11.2018. The respondent Bank also published copy of such Notice under Section 13(4) of the 2002 Act read with Rule 8 of the Security Interest (Enforcement) Rules, 2002 against the petitioner in the newspaper. 10. Being aggrieved with the said action of the respondent Bank with regard to the said Notice under Section 13(4) of the 2002 Act read with Rule 8 of said 2002 Rules, the petitioner has preferred this writ petition contending that the Authorized Officer though showed to have taken over symbolic possession of the property of the petitioner involved in the case, but the Security Interest being not registered with the Central Registry in terms of Section 26D of the SARFAESI Act, 2002 the impugned action of the respondent Bank in issuing said Notice under Section 13(4) of the 2002 Act read with Rule 8 of said 2002 Rules, with regard to his said land and building over it is illegal and without jurisdiction. The petitioner therefore, prayed that the impugned notice dated 21.11.2018 issued by the respondent Bank under Section 13(4) of said 2002 Act read with Rule 8 of 2002 Rules need to be set aside and quashed. 11. The petitioner therefore, prayed that the impugned notice dated 21.11.2018 issued by the respondent Bank under Section 13(4) of said 2002 Act read with Rule 8 of 2002 Rules need to be set aside and quashed. 11. The Court while issuing notice to the respondent Bank, by order dated 06.02.2019 observed that Section 26D of said 2002 Act provides that notwithstanding anything contained in any order of law for the time being in force, from the date of commencement of Chapter-IVA of which Section 26D is a part, no secured creditor shall be entitled to exercise the right of enforcement of securities under Chapter III of the said 2002 Act, unless the security interest credited in its favour by the borrower has been registered with the Central Registry. 12. The Court by the said order dated 06.02.2019 stayed the impugned Notice dated 21.11.2018 of the respondent Bank, directing it to place the relevant order regarding registration of the security interest in question with the Central Registry. 13. Though time was granted, the respondent Bank failed to place anything before the Court to show that the security interest with regard to the loan amount granted by it to the petitioner was registered with the Central Registry. 14. The connected Interlocutory Application being I.A.(C) No. 1017/2020 was filed by the respondent Bank on 18.03.2020 praying for vacation/alteration/modification of said order dated 16.02.2019 passed in the present proceeding submitting that the Possession Notice dated 21.11.2018 was registered with the Central Registry on 30.11.2019 and to that extent annexed the copy of the same as Annexure-A to the said Interlocutory Application. However, the same has not been denied by the petitioner. 15. After considering the same, this Court is of the view that the respondent Bank cannot be allowed to proceed with the impugned Notice dated 21.11.2018 issued under Section 13(4) of the SARFAESI Act, 2002 read with Rule 8 of the Security Interest (Enforcement) Rules, 2002 which was published in the newspaper on the subsequent date with regard to the said land of the petitioner with the RCC building constructed over it as the respondent Bank has admitted the fact that the security interest in question pertaining to said notice dated 21.11.2018 was registered with the Central Registry only on 30.11.2019, more than a year after issuance of said Notice. 16. 16. However, there shall be no bar for the respondent Bank to issue any fresh Notice under the provisions of the SARFAESI Act, 2002 and the Security Interest (Enforcement) Rules, 2002 against the petitioner, with regard to his said land and the building thereon, towards his outstanding dues payable to the respondent Bank, following the due procedure of law as well as the relevant Rules in force, as required. 17. With the above observation and direction, this writ petition stands disposed of. The interim order dated 06.02.2019, passed earlier in this proceeding, stands merged with this order.