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2022 DIGILAW 950 (KAR)

Talampally Venture Pvt. Ltd. v. Anant Kumar Sakhare S/o. Rama Rao Sakhre

2022-07-22

S.RACHAIAH, SREENIVAS HARISH KUMAR

body2022
JUDGMENT : The order dated 15.11.2021 in writ petition No.201415/2021 has given rise to these two writ appeals which have been disposed of by a common judgment. 2. The first respondent in the appeals was the writ petitioner. For the sake of convenience the writ petitioner is referred to as the borrower, the appellant in W.A.No.200178/2021, as auction purchaser and the appellant in W.A.No.200194/2021, as bank. 3. The default committed by the borrower in repaying the loan that he had obtained from the bank resulted in collateral security created in land bearing Sy.No.77 measuring 17 acres 39 guntas situated at the village Malagatti, Taluk Aurad, District Kalaburagi ('property' for short) being brought to auction by the bank under Section 13(4) of The Securitization And Reconstruction of Financial Assets And Enforcement Of Security Interest Act, 2002 (‘SARFAESI ACT’ for short). The borrower filed the writ petition seeking a writ of certiorari to quash the sale notice dated 03.06.2021 published in the news paper on 11.06.2021 as per Annexure-H and e-mail communication dated 23.07.2021 issued by the bank as per Annexure-L. He also sought a writ of mandamus to the bank to consider his representation dated 20.07.2021. The learned Single Judge by order dated 15.11.2021, allowed the writ petition canceling the sale deed executed by the bank in favour of the auction purchaser and directed the bank as also the auction purchaser to execute such documents as are required to annul the sale deed in respect of aforementioned property. The learned Single Judge also gave other directions as may be necessary for appropriating the amount that the borrower owed to the bank from the deposit made by him in the High Court and to take such other steps for completing the process of re-transfer of the property from the auction purchaser to the borrower. Aggrieved by the order of learned Single Judge, these two writ appeals are filed. 4. The case posited by the borrower in the writ court was that he availed loan of Rs.59,75,000/- from the bank on 26.10.2007 for construction of a godown in the property referred to above. The property was offered as collateral security for the loan by executing a mortgage by deposit of title deeds. It was agreed between him and the bank that the loan should be repaid in 132 monthly installments spread over for a span of 11 years. The property was offered as collateral security for the loan by executing a mortgage by deposit of title deeds. It was agreed between him and the bank that the loan should be repaid in 132 monthly installments spread over for a span of 11 years. He was paying the installments regularly. Without issuing any notice to him, the property was brought to sale. The bank claimed to have taken symbolic possession of the property in the year 2015 itself. In fact on 05.11.2018, he made payment of Rs.9,00,000/- and on 19.11.2018, he made payment of Rs.6,50,000/-. All these payments were subsequent to notice said to have been given in the year 2015 itself for taking possession. All of a sudden in the year 2021, without issuing fresh demand notice, the bank issued a letter to him intimating that the property was sold in auction on 29.06.2021 for Rs.3,30,00,000/- to M/s Talampalli Venture Private Limited i.e., the auction purchaser. This letter dated 05.07.2021 was served on him personally on 20.07.2021. In the said letter it was mentioned that the sale notice had been issued on 02.06.2021. 5. The borrower alleged in the writ petition that in-fact he was not issued with any notice before taking over possession and before conducting the auction. His main contention was that the property could not have been sold in auction under the provisions of SARFAESI Act as no action under its Section 13(4) could be taken in respect of an agricultural land. On 20.07.2021, the borrower wrote a letter to the bank expressing his desire to clear entire outstanding dues. He had made ready Rs.80,00,000/- for clearing the dues. But he received a reply from the bank that the auction purchaser had already paid Rs.3,30,00,000/- to it and thereby his loan account had been closed appropriating his dues from the sale proceeds and he should come over to bank and collect the balance of the sale proceedings. The borrower stated that if really auction was to be held, it was not required to sell entire 17 acre 39 guntas of land. The value of the godown itself was Rs.1,65,00,000/-. Any part of the land could have been sold for realizing the actual dues to the bank. In this view, the auction was bad. 6. The borrower stated that if really auction was to be held, it was not required to sell entire 17 acre 39 guntas of land. The value of the godown itself was Rs.1,65,00,000/-. Any part of the land could have been sold for realizing the actual dues to the bank. In this view, the auction was bad. 6. Placing the facts as stated above before the writ court, the borrower took up the grounds in the writ petition that -SARFAESI Act prohibited sale of agricultural land, that the bank managed to sell the property without issuing any notice, that the bank should not have initiated sale based on alleged possession notice of the year 2015 having received more than 25% of the loan amount, that the possession notice was invalid since the amount due from him had been reduced to a great extent and in this view, a fresh notice should have been issued to him, that the letter dated 05.07.2021 issued by the bank only stated that highest bid was for Rs.3.30 crore and therefore the sale was not complete on that day, that if the godown constructed in an area of 25,740 Sq.Ft. had been sold, it would have cleared the entire loan and also the penal interest if any, that the bank having approached the Debt Recovery Tribunal (‘Tribunal’ for short) by making an application for recovering the dues and having obtained an order from the Tribunal should not have invoked the provisions of SARFAESI Act, etc. 7. The bank contended in the writ petition that on 06.02.2008, a sum of Rs.56,00,000/- was sanctioned to the borrower for construction of a rural godown in the land bearing Sy.No.77/AA of Malagatti village and that on 25.05.2009, another sum of Rs.4,00,000/- was also sanctioned to the borrower. The mortgage created on the said land was registered. The borrower executed letters of revival on 24.01.2011, 06.07.2013 and 15.05.2014 admitting the liability. He became a defaulter and therefore on 16.08.2015, the borrower’s loan account was classified as Non Performing Asset (NPA). On 23.09.2015, the bank issued a notice to the borrower under Section 13(2) of SARFAESI Act calling upon him to discharge an amount of Rs.61,61,774/- found due as on 22.09.2015 within 60 days from the date of receipt of the notice. He became a defaulter and therefore on 16.08.2015, the borrower’s loan account was classified as Non Performing Asset (NPA). On 23.09.2015, the bank issued a notice to the borrower under Section 13(2) of SARFAESI Act calling upon him to discharge an amount of Rs.61,61,774/- found due as on 22.09.2015 within 60 days from the date of receipt of the notice. The borrower received the notice but did not reply, then the bank issued possession notice on 24.11.2015 and took symbolic possession. The bank published the notice dated 24.11.2015 in the news papers Prajavani and Deccan Herald. On 13.11.2020, the bank issued sale notice along with e-auction sale notice dated 11.11.2020 to the borrower giving him an opportunity to discharge the liability. This notice was also published in the newspapers Deccan Herald and Prajavani on 14.11.2020. Again on 12.01.2021, one more notice was issued to the borrower and that e-auction notice dated 11.11.2020 was also communicated to him in order to give an opportunity to him to clear the dues. This notice was also published in the newspapers dated 13.01.2021. On 02.06.2021, sale notice under Section 13(4) of the SARFAESI Act was issued and that the e-auction sale notice dated 02.06.2021 was also communicated to him. This notice was also published in the newspapers Deccan Herald and Prajavani on 11.06.2021. An authorized officer of the bank visited the property to serve the sale notice to the borrower and as he refused to receive it, notice was affixed on the house of the godown. Then Talampalli Venture Private Limited participated in the auction and as it was the highest bidder for Rs.3,30,00,000/-, its bid was accepted. The auction thus held was also communicated to the borrower by letter dated 05.07.2021. After deposit of the entire sale proceeds, it was communicated to the borrower that his loan account was closed. Then the bank executed sale certificate dated 26.07.2021 in favour of the auction purchaser and it was registered on 30.07.2021 in the office of Sub-Registrar Kalaburagi. Thereafter the borrower was called upon to come over to bank and collect the balance that remained after appropriating the dues from the sale proceeds. Giving these chronological events, the bank prayed for dismissing the writ petition. 8. Thereafter the borrower was called upon to come over to bank and collect the balance that remained after appropriating the dues from the sale proceeds. Giving these chronological events, the bank prayed for dismissing the writ petition. 8. We have heard the arguments of Sri Ameet Kumar Deshpande, learned Senior Counsel for the auction purchaser, Sri S.S. Aspalli, learned counsel for the Bank and Smt. Sandhya U. Prabhu, learned counsel for the borrower. Smt. Sandhya U. Prabhu also filed her synopsis of arguments. Whatever they elaborated while arguing may be referred contextually, but the highlights of their arguments are as follows: 9. Sri Ameet Kumar Deshpande raised the main point that writ petition was not maintainable in view of efficacious remedy being provided under Section 17 of the SARFAESI Act and in this view the learned Single Judge should not have allowed the writ petition. 10. Sri S.S. Aspalli submitted that after declaring the borrower's loan account as NPA, the bank was competent to take action under Section 13(4). Notices were issued to the borrower and they were all served. There was no infirmity in the auction procedure. He also submitted that the writ was not maintainable. 11. Smt. Sandhya U. Prabhu raised the points that writ was maintainable inspite of remedy being provided for under Section 17 of the Act; that in view of Section 31(i) of the Act, the agricultural land could not have been sold in auction; that having obtained order from Debt Recovery Tribunal in T.A.No.2265/2017, the bank could not have resorted to action under Section 13 of the Act; that the bank did not issue the notices to the borrower before taking action under Section 13 of the Act and that entire 17 acres 39 guntas was not necessary to be sold, a part of it would have fetched the actual dues to the bank. 12. Since the question of maintainability of the writ petition has been raised, we have to answer this question. Obviously we have to refer to Section 17 of the Act. Its Sub-section (1) states that, if any person including a borrower is aggrieved by any of the measures referred to in Section 13(4) of the Act, he may file an application to the jurisdictional Debt Recovery Tribunal within 45 days. That means action taken by the Secured Creditor can be questioned before the Debt Recovery Tribunal. Its Sub-section (1) states that, if any person including a borrower is aggrieved by any of the measures referred to in Section 13(4) of the Act, he may file an application to the jurisdictional Debt Recovery Tribunal within 45 days. That means action taken by the Secured Creditor can be questioned before the Debt Recovery Tribunal. The argument of Sri Ameet Kumar Deshpande and Sri S.S. Aspalli was that when Section 17 provides for efficacious remedy, the borrower should have approached the Debt Recovery Tribunal instead of filing a writ petition in the High Court. Sri Ameet Kumar Deshpande argued that though Article 226 of the Constitution of India does not bar filing of a writ petition under exceptional circumstances, the aggrieved party must avail the remedy provided under the Act itself when the statute provides for a remedy. Therefore writ petition should have been dismissed. In support of his argument, he placed reliance on the judgments of the Hon'ble Supreme Court in the cases of PHOENIX ARC PRIVATE LIMITED V. VISHWA BHARATI VIDYA MANDIR AND OTHERS [CIVIL APPEAL NO.257-259/2022], UNITED BANK OF INDIA V. SATYAWATI TONDON AND OTHERS [ (2010) 8 SCC 110 ], Gm. SRI SIDDESHWARA CO-OPERATIVE BANK LTD. V. IKBAL [AIR ONLINE 2013 SC 47]. 13. Smt. Sandhya U. Prabhu met this point of argument by submitting that the very initiation of the action under Section 13(4) of the Act was not permitted because Section 31 of the Act excludes its applicability to any interest created in the agricultural land. Since in the present case security interest is created in the agricultural land, the bank could not have proceeded under Section 13. What is involved is jurisdiction of the bank to invoke Section 13 in respect of an agricultural land and as it is apparently clear that there is violation of Section 31, it can be questioned only in the writ petition and not by filing an application under Section 17 of the Act. In support of her arguments, she has placed reliance on the judgments of the Supreme Court in the case of UTTAR PRADESH POWER TRANSMISSION CORPORATION LTD. AND ANOTHER V. C.G. POWER AND INDUSTRIAL SOLUTIONS LIMITED AND ANOTHER [2021 SCC ONLINE SC 383]. 14. We now refer to the decisions cited by the learned counsel. In support of her arguments, she has placed reliance on the judgments of the Supreme Court in the case of UTTAR PRADESH POWER TRANSMISSION CORPORATION LTD. AND ANOTHER V. C.G. POWER AND INDUSTRIAL SOLUTIONS LIMITED AND ANOTHER [2021 SCC ONLINE SC 383]. 14. We now refer to the decisions cited by the learned counsel. 14.1 In Phoenix ARC Private Limited (supra), the clear observations of the Supreme Court about the maintainability of the writ petition in relation to action taken under Section 13(4) of the Act, is found in para 13.2. It is as follows : 13 .2 Applying the law laid down by this Court in the case of Mathew K.C. (supra) to the facts on hand, we are o f the opinion that filing o f the writ petitions by the borrowers before the High Court under Article 226 of the Constitution of India is an abuse of process of the Court. The writ petitions have been filed against the proposed action to be taken under Section 13(4). As observed hereinabove, even assuming that the communication dated 13.08.2015 was a notice under Section 13(4), in that case also, in view of the statutory, efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petitions. Even the impugned orders passed by the High Court directing to maintain the status quo with respect to the possession of the secured properties on payment of Rs.1 crore only (in all Rs.3 crores) is absolutely unjustifiable. The dues are to the extent of approximately Rs.117 crores. The ad-interim relief has been continued since 2015 and the secured creditor is deprived of proceeding further with the action under the SARFAESI Act. Filing of the writ petition by the borrowers before the High Court is nothing but an abuse of process of Court. It appears that the High Court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons. The High Court ought to have appreciated that by passing such an interim order, the rights of the secured creditor to recover the amount due and payable have been seriously prejudiced. The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers. The High Court ought to have appreciated that by passing such an interim order, the rights of the secured creditor to recover the amount due and payable have been seriously prejudiced. The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers. The stay granted by the High Court would have serious adverse impact on the financial health of the secured creditor/assignor. Therefore, the High Court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters. In these circumstances, the proceedings before the High Court deserve to be dismissed. (emphasis supplied) 14.2 Satyavati Tondon (supra) discusses the question whether the High Court can entertain a writ petition under Article 226 when a remedy is available under Section 17 of the Act. It is held in paragraphs 18 and 27 as below : 18. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. and the particular legislation contains a detailed mechanism for redressal of his grievance. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, AIR 1969 SC 556 , Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others, (2003) 2 SCC 107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order. 27. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection. (emphasis supplied) 14.3 Gm. Sri Siddeshwara Co-operative Bank Ltd. (supra) is another case where the Hon’ble Supreme Court has discussed applicability of Section 17 of the Act in relation to action taken under Section 13 of the Act. In para 31 of the said judgment it is held as below : 31. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented. 14.4 In the case of Uttar Pradesh Power Transmission Corporation Ltd. and another (supra), it is held : 68. It is well settled that availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case. The High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy, particularly (i) where the writ petition seeks enforcement of a fundamental right; (ii) where there is failure of principles of natural justice or (iii) where the impugned orders or proceedings are wholly without jurisdiction or (iv) the vires of an Act is under challenge. Reference may be made to Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. reported in (1998) 8 SCC 1 : AIR 1999 SC 22 and Pimpri Chinchwad Municipal Corporation V. Gayatri Construction Company, reported in (2008) 8 SCC 172 , cited on behalf of Respondent No.1. 15. The conspectus of the above decisions is this: It is not as though High Court cannot entertain a writ petition under Article 226 of the Constitution whenever alternative remedy is available. Writ jurisdiction can certainly be invoked where fundamental rights are sought to be enforced or their violation is complained of, or where there is failure of principles of natural justice or when the order impugned in the writ petition was passed by an authority having no jurisdiction or vires of an Act is questioned. But the question is not only the availability of alternative remedy, but if it pertains to availability of efficacious remedy, the High Court should not ordinarily entertain the writ petition. The judgments that Sri Ameet Kumar Deshpande and Sri S.S. Aspalli have relied upon directly deal with availability of efficacious remedy under Section 17 of the Act. Though in those cases the order of granting interim orders in relation to action under Section 13 of the Act were questioned, the issue whether writ petition can be entertained when efficacious remedy under Section 17 of the Act is available, is discussed at length. Though in those cases the order of granting interim orders in relation to action under Section 13 of the Act were questioned, the issue whether writ petition can be entertained when efficacious remedy under Section 17 of the Act is available, is discussed at length. But the judgment of the Supreme Court in Uttar Pradesh Power Transmission Corporation Ltd. (supra), does not discuss applicability of Section 17 of the Act. What the Supreme Court has reiterated is the settled principle as to when the High Court can entertain writ petition inspite of availability of alternative remedy. Therefore we are of the opinion that Uttar Pradesh Power Transmission Corporation Ltd. (supra), does not countenance the argument of Smt. Sandhya U. Prabhu that the writ petition is maintainable. 16. Even if we analyze the scope of Section 17, it can be very well said that it relates to questioning the measures taken under Section 13(4) of the Act. The word ‘measure’ includes enforcing a security interest for recovery of the dues to the bank or financial institution. If by virtue of Section 31, no action can be taken in relation to security interest created in an agricultural property, there is no bar for questioning the same under Section 17 of the Act. The Debt Recovery Tribunal can decide whether a secured creditor can proceed under Section 13(4) in respect of security interests as enumerated in Section 31 of the Act. 17. Other points of argument of Smt. Sandhya U. Prabhu were that the borrower has disputed the service of notice under Section 13(2) of the Act and the possession notice and that the Commissioner appointed by the writ court has given a report that the property is an agricultural land and there is nothing more to be ascertained even if an enquiry is held. Moreover even if it is to be ascertained once again, the DRT cannot record evidence while deciding an application under Section 17 and therefore writ petition is maintainable. 18. We are unable to accept her arguments. Plain reading of Section 17 of the Act shows that it is just an application where enquiry is also permitted. Remedy provided under Section 17 is not an appeal. It is useful to extract here Sub-sections (2) and (3) of Section 17 : 17. 18. We are unable to accept her arguments. Plain reading of Section 17 of the Act shows that it is just an application where enquiry is also permitted. Remedy provided under Section 17 is not an appeal. It is useful to extract here Sub-sections (2) and (3) of Section 17 : 17. Application against measures to recover secured debts:— (1) xx xx xxx (2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder. (3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management of the secured assets to the borrower or restoration of possession of the secured assets to the borrower, it may by order, (a) declare the recourse to any one or more measures referred to in-sub-section (4) of section 13 taken by the secured assets as invalid and (b) restore the possession of the secured assets to the borrower or restore the management of the secured assets to the borrower, as the case may be, and (c) pass such order as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of section 13. 19. Sub-section (2) makes it very clear that the DRT can examine whether the measures taken under Section 13(4) are in accordance with the provisions of the Act. According to Sub-section(3), the DRT can examine the facts and circumstances of the case and also evidence produced by the parties. After examining the facts, circumstances and evidence, DRT can declare any of the measures taken under Section 13(4) as invalid; it can restore the possession of secured assets or the management to the borrower or other aggrieved persons and it can also issue any other directions as found to be appropriate. After examining the facts, circumstances and evidence, DRT can declare any of the measures taken under Section 13(4) as invalid; it can restore the possession of secured assets or the management to the borrower or other aggrieved persons and it can also issue any other directions as found to be appropriate. This being the scope of Section 17, the borrower could have urged all the grounds that he had taken in the writ petition before the DRT by making an application under Section 17 of the Act. It is an unacceptable argument that DRT cannot record evidence in a proceeding under Section 17, in our opinion it can. Therefore we are of the clear opinion that the writ petition filed by the borrower was not maintainable. 20. If we peruse the impugned order, what we find is, infact the learned Single Judge has too opined that writ petitioner i.e., the borrower ought to have approached the DRT. But the learned judge appears to have taken a decision to entertain the writ petitioner for some other reasons, namely, entire property measuring 17 acre 39 guntas was auctioned for a consideration of Rs.3,30,00,000/-. When the actual due was very less, it was not necessary to auction the entire land. The learned Single Judge has taken note of the fact that the borrower had already deposited Rs.3,41,00,000/- before this Court on 19.10.2021 to show his bonafides and therefore the case appears to be exceptional one for entertaining the writ petition. We may state that the learned Single Judge appears to have entertained the writ petition showing sympathy towards the petitioner. Of course we do not deny the fact that sympathy can be shown if genuine grounds are made out by the borrower for not being able to repay the loan. The enforcement action taken under the SARFAESI Act or Order XXI of the Code of Civil Procedure relating to sale of movables or immovables, is to see that money owed by the borrower is repaid. It is not with a view to bringing the property for auction and especially if Rules 55(a) and 83 of Order XXI CPC are read, it can be said that opportunities are given to the judgment debtor for repaying the money at various stages. It is not with a view to bringing the property for auction and especially if Rules 55(a) and 83 of Order XXI CPC are read, it can be said that opportunities are given to the judgment debtor for repaying the money at various stages. Looked in this view, it cannot be said that the bank cannot resort to action under Section 13 of the Act if the borrower does not show promptness in repaying the loan borrowed by him. Bank is a Trustee of public money. Very aptly we quote an observation of the Supreme Court in the case of AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE V. MATHEW K.C. [ AIR 2018 SC 676 ]. It is held that : 16……. ……. ……. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order: 21. Therefore we may state that if a borrower fails to repay the loan despite several chances being given to him by the bank, ultimately it has to take recourse to enforcement action provided under law. There was no need for the learned Single Judge to be unduly the sympathetic, he could have as well left those issues to be decided by DRT. 22. Then with regard to agricultural nature of the property, Smt. Sandhya U. Prabhu argued that the record of rights produced by the borrower and the commissioner's report clearly indicate that it is an agricultural land and Section 31(i) is a clear bar. The argument of Sri Ameet Kumar Deshpande was that merely for the reason that in the revenue records the property is shown as agricultural land, it cannot be said that Section 31(i) is applicable to exclude the property from the purview of enforcement under Section 13(4) of the Act. The argument of Sri Ameet Kumar Deshpande was that merely for the reason that in the revenue records the property is shown as agricultural land, it cannot be said that Section 31(i) is applicable to exclude the property from the purview of enforcement under Section 13(4) of the Act. The property may be agricultural, but did the parties intend to use the property for agricultural purpose or not is the determining factor to apply bar under Section 31. In support of his arguments, he has placed reliance on the judgments of the Supreme Court in the case of INDIAN BANK AND ANOTHER V. PAPPIREDDIYAR AND ANOTHER (2018) 18 SC 252 and ITC LIMITED V. BLUE COAST HOTELS LIMITED AND OTHERS [ (2018) 15 SCC 99 ]. 22.1 In Blue Coast Hotels (supra) in para 37 and 38 it is held as below : 37. In the present case, security interest was created in respect of several parcels of land, which were meant to be a part of single unit i.e. the five star hotel in Goa. Some parcels of land now claimed as agricultural land were apparently purchased by the debtor from agriculturists and are entered as agricultural lands in the revenue records. The debtor applied to the revenue authorities for the conversion of these lands to non-agricultural lands which is pending till date due to policy decision. 38. It is undisputed that these lands were mortgaged in favour of the creditor under a deed dated 26.02.2010. Obviously, since no security interest can be created in respect of agricultural lands and yet it was so created, goes to show that the parties did not treat the land as agricultural land and that the debtor offered the land as security on this basis. The undisputed position is that the total land on which the Goa Hotel was located admeasures 182225 sq. mtrs. Of these, 2335 sq. mtrs. are used for growing vegetables, fruits, shrubs and trees for captive consumption of the hotel. There is no substantial evidence about the growing of vegetables but what seems to be on the land are some trees bearing curry leaves and coconut. This amounts to about 12.8 % of the total area. (emphasis supplied) 22.2 In K. Pappireddiyar (supra), the judgment of Blue Coast Hotels Limited (supra) is referred and held as below : 8. There is no substantial evidence about the growing of vegetables but what seems to be on the land are some trees bearing curry leaves and coconut. This amounts to about 12.8 % of the total area. (emphasis supplied) 22.2 In K. Pappireddiyar (supra), the judgment of Blue Coast Hotels Limited (supra) is referred and held as below : 8. The expression security interest, both before and after the amendment, excludes what is specified in Section 31. Clause (i) of Section 31 stipulates that the provisions of the Act will not be applicable to any security interest created in agricultural land. The statutory dictionary in Section 2 does not contain a definition of the expression agricultural land. Whether a particular piece of land is agricultural in nature is a question of fact. In the decision of this Court in Blue Coast Hotels Limited (supra), a security interest was created in respect of several parcels of land which were meant to be a part of a single unit, for establishing a hotel in Goa. Some of the parcels were purchased by the debtor from agriculturists and were entered as agricultural lands in the revenue records. The debtor had applied to the revenue authority for the conversion of the land to non-agricultural use, but the applications were pending. This Court held that the fact that the debtor had created a security interest was indicative of the position that the parties did not treat the land as agricultural land. The undisputed position was that the hotel was located on 1,82,225 square meters of land of which 2,335 square metres were used for growing vegetables and fruits for captive consumption. In this background, the two-judge Bench of this Court held that : 49. The mortgage is thus intended to cover the entire property of the Goa Hotel. Prima facie, apart from the fact that the parties themselves understood that the lands in question are not agricultural, it also appears that having regard to the use to which they are put and the purpose of such use, they are indeed not agricultural. The Court further held that: 57. .... having regard to the character of the land and the purpose for which it is set apart, we are of the view that the land in question is not an agricultural land. The Court further held that: 57. .... having regard to the character of the land and the purpose for which it is set apart, we are of the view that the land in question is not an agricultural land. The High Court misdirected itself in holding that the land was an agricultural land merely because it stood as such in the revenue entries, even though the application made for such conversation lies pending till date." (emphasis supplied) 23. Smt. Sandhya U. Prabhu tried to distinguish the applicability of above two decisions on facts. In this regard, we may state that in the context of circumstances, the interpretation of Section 31(i) is involved. Pertinently we may quote what the Supreme Court has observed in para 29 of its judgment in Blue Coast Hotels Limited (supra). The observation is, "However, we are of the view that the construction of the Act should not be affected by the facts of a particular case". Therefore the ratio in Blue Coast Hotels Limited (supra) and K. Pappireddiyar (supra) is applicable. 24. Further, we may state that the intention of the parties is a question of fact. Direct evidence as to what was the intention of the parties is seldom available, inference as to existence of intention must be gathered from other proved facts. Therefore the DRT might as well decide this issue in the application filed under Section 17 of the Act. 25. Another point argued by Smt. Sandhya U. Prabhu was that the bank having obtained an order by making an application under Section 19 of the Recovery of Debts and Bankruptcy Act should have proceeded to take action under the said Act. Though she submitted that the action under Section 13 of the Act is parallely available, her emphasis of argument was, once an order on the application under Section 19 of the DRT Act was obtained, there was no bar as such to proceed against the agricultural property. Though she submitted that the action under Section 13 of the Act is parallely available, her emphasis of argument was, once an order on the application under Section 19 of the DRT Act was obtained, there was no bar as such to proceed against the agricultural property. Sri Ameet Kumar Deshpande replied to this argument by placing reliance on the judgment of the Supreme Court in the case of M/S. TRANSCORE V. UNION OF INDIA AND ANOTHER [ AIR 2007 SC 712 ], that the remedy available under the Act is independent, and just because the bank approached the DRT by making an application under Section 19, it cannot be said that the bank lost its right to take action under the Act. He argued that doctrine of election is not applicable. Sri S.S. Aspalli also argued that both actions are independent. He refers to Section 35 of the Act. The Supreme Court in the case of M/s. Transcore (supra), has held as below : 26. In our view, Section 17(4) shows that the secured creditor is free to take recourse to any of the measures under Section 13(4) notwithstanding anything contained in any other law for the time being in force, e.g., for the sake of argument, if in the given case the measures undertaken by the secured creditor under Section 13(4) comes in conflict with, let us say the provision under the State land revenue law, then notwithstanding such conflict, the provision of Section 13(4) shall override the local law. This position also stands clarified by Section 35 of the NPA Act which states that the provisions of NPA Act shall override all other laws which are inconsistent with the NPA Act. Section 35 is also important from another angle. As stated above, the NPA Act is not inherently or impliedly inconsistent with the DRT Act in terms of remedies for enforcement of securities. Section 35 gives an overriding effect to the NPA Act with all other laws if such other laws are inconsistent with the NPA Act. As far as the present case is concerned, the remedies are complimentary to each other and, therefore, the doctrine of election has no application to the present case. 26. Section 35 gives an overriding effect to the NPA Act with all other laws if such other laws are inconsistent with the NPA Act. As far as the present case is concerned, the remedies are complimentary to each other and, therefore, the doctrine of election has no application to the present case. 26. Therefore we have to state that the action taken by the bank under Section 13(4) of the Act, despite an order having been already passed by the DRT deciding an application under Section 19 of the DRT Act, cannot be said to be improper. 27. Smt. Sandhya U. Prabhu while arguing emphasized the fact that there was no service of notice on the borrower. On this point, she placed reliance of the judgment of Supreme Court in the case of OASIS DEALCOM PRIVATE LIMITED V. KHAZANA DEALCOMM PRIVATE LIMITED AND OTHERS [ (2016) 10 SCC 214 ]. She also urged another point that there was no need to bring entire property for sale when a part of it could have fetched the actual dues to the bank and in this regard she referred to the judgment in the case of RAM KISHUN AND OTHERS V. STATE OF UTTAR PRADESH AND OTHERS [ (2012) 11 SCC 511 ]. We agree with her argument that service of notice as envisaged under Section 13(2) of the Act and Security Interest Enforcement Rules are mandatory and any infraction in issuance and publication of notice vitiates the whole action. But the bank disputes the contention of the borrower and according to it there was service of notice and publication in news papers. Again this is a disputed question of fact on which evidence is necessary and therefore, this can be decided only in a proceeding under Section 17 of the Act. 28. So also whether sale of part of the property would have fetched the entire dues, is a question of fact. Sri Ameet Kumar Deshpande and Sri S.S. Aspalli argued that the bank was not in a position to auction a part of the property because of the reason that the part of the property to be sold was required to be demarked first, and certain revenue documents were required to be produced. The bank could not have obtained the revenue documents without the consent and cooperation of the borrower. The bank could not have obtained the revenue documents without the consent and cooperation of the borrower. This submission indicates that the bank may be having a reason as to why it did not opt to sell a part of the property, but in our opinion this issue can be decided by the DRT as it is also a question of fact. 29. It is very important to mention here that actually the writ court has not considered all the points that Smt. Sandhya U. Prabhu argued before us. The learned Single Judge has allowed the writ petition on some other grounds. But from the foregoing discussion we come to conclusion that the order of the learned Single Judge is not sustainable. These writ appeals deserve to be allowed. Hence the following : ORDER Both writ appeals are allowed. The order dated 15.11.2021 in W.P.No.201415/2021 (GM-RES) is set-aside. Liberty is given to the borrower to approach the DRT, but legal contentions are kept open to be decided by DRT. There is no order as to costs.