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2021 DIGILAW 1880 (RAJ)

Shree Ram Ent Udhyog v. State Bank of India

2021-09-29

DINESH MEHTA

body2021
JUDGMENT 1. By way of present writ petition, the petitioners have challenged e-auction notice dated 25.08.2021 and prayed a direction to the respondent-Bank to accept balance amount of OTS vide order dated 11.11.2020. 2. Upon direction of this Court, Ms. Kasliwal, learned counsel appearing for the respondent-Bank informs that a total amount of Rs.49,87,238.86 is outstanding against the petitioners as on 30.09.2021. 3. While indicating that the auction proceedings are continuing today, learned counsel submits that any indulgence to the petitioners, will be against the interest of the respondent-Bank. 4. Learned counsel submits that the petitioners have deliberately concealed the factum of having approached the Permanent Lok Adalat and the order dated 15.09.2021 passed by it. Learned counsel further submits that the petitioners have not informed the Court that their OTS sanction given on 11.11.2020 has been cancelled by the respondent-Bank vide order dated 26.07.2021. 5. While submitting that the petitioners have not only concealed the factum of order dated 26.07.2021, learned counsel argues that sans any challenge to the said order, petitioners cannot seek a mandamus against the respondent-Bank to accept the remaining amount, pursuant to OTS dated 11.11.2020. 6. Learned counsel further argues that the petitioners are having efficacious alternative remedy under the provisions of Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security and Interest Act, 2002 (for short, 'the SARFAESI Act') and in light of judgments of Hon'ble the Supreme Court rendered in the case of United Bank of India v. Satyawati Tondon & Ors. [ (2010) 8 SCC 110 ] and in the case of Mardia Chemicals v. Union of India [ (2004) 4 SCC 311 ], indulgence in extraordinary writ jurisdiction is not permissible. 7. Learned counsel for the petitioners shows concern about the above amount and points out that petitioners' total dues as indicated in the One Time Settlement order dated 11.11.2020, was only Rs.28 lakhs. 8. Learned counsel submits that the respondent-Bank is encashing its dominating position and has cancelled rather resiled from One Time Settlement Order dated 11.11.2020 and has arbitrarily proceeded to auction the mortgaged property of the petitioner. 9. 8. Learned counsel submits that the respondent-Bank is encashing its dominating position and has cancelled rather resiled from One Time Settlement Order dated 11.11.2020 and has arbitrarily proceeded to auction the mortgaged property of the petitioner. 9. Learned counsel further submits that without prejudice to their right of challenging the above calculation, in order to show their bonafides, the petitioners are ready with a Cheque No.518205 dated 29.09.2021 and prepared to deposit an amount of Rs.25 lakhs right away and are also prepared to deposit remaining amount of Rs.24,87,238.86, within a period of two months. 10. He submits that petitioners' right to challenge the order dated 26.07.2021 (Annex.R-1/5) be protected, else their substantial rights flowing from the one time settlement would be marred. 11. He further submits that if the indulgence is not granted, petitioners' property, which is worth more than Rs.2 Crores, will be auctioned at throwaway price and they will be rendered remedy-less. 12. After considering the submissions made at the Bar and upon perusal of the material available, present stay application is disposed of with a direction to the petitioners to hand-over the Cheque No.518205, dated 29.09.2021, to the tune of Rs.25 lakhs to Ms. Suruchi Kasliwal, learned counsel appearing for the respondent-Bank today itself. 13. The petitioners shall deposit the remaining amount of Rs.24,87,238.86 on or before 31.10.2021. 14. The Cheque of Rs.25 lakhs has been handed over by Mr. Dhawan to Ms. Kasliwal during Court proceedings. 15. Since the petitioners have tendered substantial amount, the auction proceedings in relation to petitioners' industrial unit, which has taken place today, shall not be finalized. 16. In case the petitioners fail to deposit the amount of Rs.24,87,238.86 by 31.10.2021, the respondent-Bank shall be free to finalize the auction, which has taken place today, in accordance with law. 17. Needless to observe that in case the Cheque tendered by the petitioners today to Ms. Kasliwal, is dishonoured, the respondent- Bank shall be free to proceed with the finalization of the auction, apart from filing application before this Court for taking appropriate proceedings against the petitioners. 18. It is also hereby ordered that as and when petitioners deposit remaining amount of Rs.24,87,238.86, the respondent- Bank shall forthwith hand-over the possession of the industrial unit to the petitioners. 19. The amount of Rs.49,87,238.86, which the respondent-Bank has calculated, shall remain subject to final outcome of the present writ petition. 20. 18. It is also hereby ordered that as and when petitioners deposit remaining amount of Rs.24,87,238.86, the respondent- Bank shall forthwith hand-over the possession of the industrial unit to the petitioners. 19. The amount of Rs.49,87,238.86, which the respondent-Bank has calculated, shall remain subject to final outcome of the present writ petition. 20. The petitioners' right to challenge the order dated 26.07.2021 and calculation of the bank shall remain reserved. 21. List this case on 15.11.2021.