(Order of the Court was made by M.Govindaraj,J) This writ petition has been filed to quash the notices, issued to the petitioners by the respondent Bank, dated 17/10/2012 and 15/2/2012, respectively, and the possession notice, dated 6/7/2012 and consequently, for a direction to the second respondent, to apply the Debt Relief Scheme 2008 2009, dated 23/5/2008, to waive the agricultural term loan, in loan Account Nos.ATL 30308812149 and ATL 30264847259, as per the Notification, dated 23/5/2008, in RPCD No.PLFS.BC.72/05.04.02.2007 08.
2. It is the case of the petitioners that the second respondent sanctioned agricultural term loan of Rs.4,90,000/- and Rs.9,80,000/-, on 11/1/2008 and 23/10/2007, in ATL Nos.30308812149 and 30264847259, in the name of the first and second petitioners, respectively. The entire amount was used for agricultural purpose, in the agricultural land, appurtenant to their residential house, due to failure of monsoon, for a continuous period of more than three years and the growth of horticulture was not to the expected level. The petitioners could not make payments. Several agricultural farmers suffered huge loss. Therefore, while announcing the budget in the year 2008 2009, Ministry of Finance, Government of India, announced a Agricultural Debt Waiver and Debt Relief Scheme, 2008. The said scheme was implemented by a circular of the Reserve Bank of India, dated 23/5/2008.
3. The petitioners would further state that as they are the marginal farmers, holding lands below 2.5 acres, they are eligible to the benefit of the Scheme. The loan amount was disbursed to the second petitioner, on 23/10/2007, the same was much prior to the cut off date, viz., 31/3/2007. According to the second respondent, the loan amount was over due, as on 31st December 2007 and remained unpaid till now. Therefore, the entire amount is to be waived. Scheme had been extended periodically and therefore, under the scheme waiver, the petitioners should be given the benefit of waiver.
4. The petitioners would further state that the second respondent Bank had given the loan for agricultural purpose and therefore, the Bank cannot initiate SARFAESI proceedings against the agricultural land. The Bank has issued notice, under
Section 13 (2) of the SARFAESI Act, on 17/10/2012 and 15/2/2012, on the petitioners 1 and 2 respectively.
5. On 13/8/2014, the petitioners had made a representation, to the second respondent and thereafter, the Bank attempted to take possession of the agricultural land, on 16/8/2014. Challenging the same, the petitioners have filed the above writ petition, on the grounds that the agricultural land is totally exempted from the purview of SARFAESI Act, 2002 and the benefits of the waiver scheme announced by the Government of India, should be given to them. Therefore, it is prayed that the notice issued by the second respondent, under
Section 13 (4) of the SARFAESI Act, dated 6/7/2012, be quashed.
6. Respondents have filed a counter affidavit stating that the loan amount was sanctioned to the petitioners, on creation of equitable mortgage, by depositing the title deeds of the residential vacant land, of the second petitioner, as security for the borrowing. In spite of repeated demands and various notices, the petitioners have failed to make repayments and therefore, the said loans were classified as Non-performing Asset and action was initiated under SARFAESI Act, 2002. As stated in the writ petition, demand notices, dated 15/2/2012 and 17/10/2012, were issued to the petitioners, under
Section 13 (2) of SARFAESI Act and in spite of the same, the writ petitioners have failed to comply with the lawful demand made by the second respondent, nor sent any reply thereto.
7. According to the second respondent, possession notice issued to the mortgaged property, is not an agricultural property, as projected by the writ petitioners. It consists of a building used for non-agricultural purposes and agricultural activity is carried on, in the subject property. There is no impediment for enforcing the security interest in respect of the land with building under the provisions of SARFAESI Act, 2002. The petitioners cannot take any exception to the same. This Hon'ble Court in Kalpesh P.C.Surana Vs. Indian Bank (W.P.No.21759 of 2010, dated 10/3/2010), B.Jagadeesh Vs. Union Bank of India (W.A.No.163 of 2008 and 1634 of 2008, dated 6/2/2008), K.Rajasekhar Vs. Indian Bank {(2006) IV Banking Cases 211}, has taken a consistent view that disputes regarding applicability of SARFAESI Act, 2002, to the mortgage security, on the ground that it is an agricultural land, exempted under
Section 31 (i) of the Act, cannot be adjudicated in a writ petition. Based on the above, he prays for the dismissal of the writ petition.
8. We have heard the arguments of the respective counsel.
9. Admitted fact is that there is a mortgage of title deeds by the writ petitioners and a sum of Rs.4,90,000/- and 9,80,000/- were secured by them. Learned counsel for the writ petitioners would project his case that the writ petitioners are entitled to the Debt Relief Scheme, announced by the Government, namely, Agricultural Debt Waiver and Debt Relief Scheme, 2008. According to the Scheme, for the loan disbursed upto March 2007 and overdue as on 31st December 2007 and remaining unpaid till 29th February 2008 alone are eligible for the scheme. Whereas from the materials available, we could find that the term loan in Account Nos.30308812149 and 30264847259 dated 11/1/2008 and 23/10/2007, for a sum of Rs.4,90,000/- and Rs.9,80,000/-, respectively, have been disbursed after March 2007 and therefore, they do not fall under the Debt Relief Scheme. Notice under
Section 13 (2) was issued on 17/10/2012 and 15/2/2012 on the petitioners 1 and 2, respectively and thereafter, on 6/7/2012, possession notice has been issued. According to the writ petitioners, the second respondent had attempted to take possession only in the year 2014. The writ petitioners, have contended that they have received the notices issued under
Section 13 (2) and 13 (4) dated 15/12/2012, 17/10/202 and 6/7/202, but misplaced the same. Therefore, it is clear that the demand notices as well as the possession notice issued by the second respondent were received by the writ petitioners also.
10. Be that as it may, the points which is to be decided are
(i). Whether the writ petitioners are entitled to Debt Relief Scheme, dated 23/5/2008 or not? and
(ii). Whether the writ petition is maintainable before this Court?
11. As discussed above, we find that the Debt Relief Scheme, announced by the Government is not applicable, in so far as the writ petitioners are concerned. Against the possession notice, issued under 13 (4) of SARFAESI Act, 2002, relief is available under
Section 17 of the SARFAESI Act, 2002. Time and again this Court has held that when the alternative remedy is available, the High Court shall not interfere to the possession notices, issued under
Section 13 (4) of SARFAESI Act, 2002.
12. Admittedly, the possession notice was issued, on 6/7/2012 and the writ petitioners have conveniently stated that it has been misplaced by them. Writ petition, at the belated stage cannot be entertained to provide fresh cause of action. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the Court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction, as per Government of W.B Vs. Tarun K.Roy {(2004) 1 SCC 347}, U.P.Jal Nigam Vs. Jaswant Singh {(2006) 11 SCC 464} and Karnataka Power Corporation Ltd., Vs. K.Thangappan {(2006) 4 SCC 332}. Writ petitioners are not entitled to any equity. In the light of the discussion and decisions, we do not find any point in favour of the writ petitioners.
13. In the result, this writ petition is dismissed. No costs. Consequently, the connected Miscellaneous Petitions are closed.The petitioners are at liberty to raise valid grounds if Bank takes recourse to any other measure under
Section 13 (4) of the SARFAESI Act, 2002.