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2020 DIGILAW 652 (RAJ)

Iras Khadi Gramodhyog Utpadak Shakari Samiti Ltd v. Bank of Maharashtra

2020-09-09

ASHOK KUMAR GAUR

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ORDER 1. The instant writ petition has been filed by the petitioners challenging the order dated 13th August, 2020 passed by the Debts Recovery Tribunal, Jaipur (for short 'the Tribunal'), whereby the application filed by the petitioner-M/s. Iras Khadi Gramodhyog Utpadak Shakari Samiti Limited for impleadment of Khadi Village & Industries Commission (for short 'KVIC') as respondent in the security application has been rejected. 2. This court finds an application No. 1/2020 has also been filed by the applicant - KVIC for impleadment as party-respondent in the present writ petition. 3. This court finds that the order of the Tribunal records that KVIC was neither borrower nor guarantor to the credit facility availed by the petitioners and the dispute with regard to release of the payment pending since 2018. 4. Learned counsel - Mr. Dinesh Yadav, appearing for the petitioners, submitted that the Tribunal has committed illegality in rejecting the application of impleadment filed by the petitioner/s and the KVIC was a necessary party to the entire proceedings. 5. Learned counsel has drawn attention of this court towards Inter-se Agreement (Annexure-3), made between the Bank of Maharashtra, KVIC the petitioner society. 6. Learned counsel has drawn attention towards Clause Nos. 4 & 5 of the said Agreement and submitted that all the matters, affecting rights of the parties, particularly the steps for enforcement of security, the parties were to consult each other and to cooperate with one another without affecting their own rights and each party was to keep informed all the serious and important matters coming to their knowledge relating to mortgaged property or any part or portion thereof. 7. Learned counsel submitted that the proceedings initiated against the petitioners under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SARFAESI Act') not only infringes petitioners' rights but also affects the Inter-se Agreement, which has been entered into between the petitioners and KVIC. 8. Learned counsel submitted that necessity of impleading KVIC arose, as the KVIC itself has second charge over the mortgaged property. 9. 8. Learned counsel submitted that necessity of impleading KVIC arose, as the KVIC itself has second charge over the mortgaged property. 9. Learned counsel submitted that if the respondent Bank is allowed to proceed with the auction sale proceedings and confirms the sale in favour of the other incumbent, the right of the petitioners will be affected and further, that will be in a gross violation of Inter-se Agreement, which has been entered into between the petitioners, bank and KVIC. 10. Learned counsel further submitted that the respondent bank has been arbitrarily demanding the amount, as a deficit amount and the petitioner society was not in any manner responsible for exaggerated amount, which has been claimed against the petitioners. 11. I have considered the submissions made by learned counsel for the parties. 12. This Court finds that the Tribunal has rightly come to the conclusion that the KVIC is neither borrower nor guarantor to the credit facility. 13. This Court finds that the borrower or guarantor can have stake in respect of the mortgaged property and if any agreement has been entered into between the petitioner society, KVIC and further, the Bank is also party to the same, the proceedings before the Tribunal, will necessarily decide the dispute with regard to the alleged outstanding amount against the petitioners and further, the action taken under the SARFAESI Act. 14. This Court finds that the internal arrangement between the KVIC and the petitioners nowhere touches upon merits of the dispute, which is raised by the Bank against the borrower or guarantor. 15. This Court finds that the Tribunal has not committed any error in passing the order dated 13th August, 2020. 16. The application filed by the KVIC cannot be entertained by this Court, as allowing the said application would clearly allow the writ petition filed by the petitioners. 17. This Court finds that if the KVIC had any grievance against the proceedings, which have been initiated or if it touches upon their rights with respect to protection of the property, the writ petition is not the proper Forum, where their grievance can be redressed. 18. This Court further finds that the order dated 13th August, 2020, which is challenged before this Court, cannot be entertained in the writ jurisdiction and the petitioners have statutory alternative remedy of preferring the appeal under the provisions of Section 18 in the SARFAESI Act. 19. 18. This Court further finds that the order dated 13th August, 2020, which is challenged before this Court, cannot be entertained in the writ jurisdiction and the petitioners have statutory alternative remedy of preferring the appeal under the provisions of Section 18 in the SARFAESI Act. 19. This Court finds that if the petitioners had any grievance against order dated 13th August, 2020, the proper proceedings should have been undertaken and as such, the writ petition cannot be entertained on the availability of alternative remedy and on merits of the matter as well. 20. Accordingly, the present writ petition is dismissed.