Hon'ble Rajesh Chandra,J.
(Delivered by Hon'ble Mr. Justice Rajesh Chandra) In both the writ petitions, issues involved are almost same, hence these petitions are being disposed of by a common order.
In brief the facts are that the petitioner Nayak Industries Ltd. filed Civil Misc. Writ Petition No. 10347 of 2010 making following prayer:-
i.To issue a writ, order or direction in the nature of Certiorari quashing the Impugned Pubic Notice dt. 10.02.2010 (Annexure No.39);
ii.To issue a writ, order or direction in the nature of Mandamus directing the respondent Bank not to proceed with the alleged Notice U/S 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 if the same is served during the pendency of the Writ Petition although till date no such Notice has been served but only finds mention of the same in the Impugned Public Notice dt. 10.02.2010 (Annexure No. 39);
iii.To issue a writ, order or direction in the nature of Mandamus directing the Respondent Bank to finalize the claim of refund of payment of balance amount of Rs. 11,76,64,132/- in view of the letter dt. 26.10.2009 (Annexure No. 32) issued by Head Office/Respondent No.2;
iv.To issue a writ, order or direction in the nature of Mandamus directing the Finance Ministry of Union of India/Respondent no.6 to constitute a High Power Committee to look into the various anomalies committed (and still being committed) by the Respondent Bank of Baroda and to decide and determine the claim of refund of balance amount of Rs. 11,76,64,132/- (as on 31.07.2009) to the Petitioner as per his letters dated 14.12.2009 (Annexure No.33) and dt. 08.02.2010 (Annexure No. 38);"
The case as pleaded by the petitioner is that in respect of the loan amount, the petitioner was required to pay interest at the rate of 11% per annum but the respondent bank charged interest at the rate of 18% per annum. The petitioner, therefore, deposited the huge amount with the bank. However, the petitioner raised objections about excess charging of interest on the loan amount then the respondent bank started returning the amount and till the date of filing the Writ petition No. 10347 of 2010, the amount of Rs. 1,26,51,521/- had already been refunded to the petitioner. The respondent bank had also informed the petitioner vide letter dated 26.10.2009 that necessary action is being taken upon petitioner's letter / complaint/ representation and the petitioner will be informed in this regard.
The said petition No. 10347 of 2010 came up for hearing on 26.2.2010 and following order was passed.
"Argument is that in respect of loan amount, the petitioner was required to pay the interest @ 11% per annum but the bank charged interest @ 18%, on account of which a huge amount was deposited by the petitioner. When the petitioner made objection about excess charging of interest on loan amount the respondent bank started refunding the amount. Till date Rs. 1,26,51,521/- has been refunded to the petitioner ( page 416 of the writ petition ). At the same time a letter was written by the respondent bank dated 22.9.2009 informing the petitioner that his matter is referred to the Higher Authority to resolve the issue of refund as claimed by the petitioner (page No. 239 of the writ petition).
On these facts submission is that the further proceeding pursuant to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 may be stayed.
After hearing learned counsel for the parties we are not inclined to grant interim relief to the petitioner as on today. As the respondent-bank has already referred the issue of excess charging of interest on the loan amount to the Higher Authority and its information has been given to the petitioner vide page 239 of the writ petition, this Court directs respondents No. 1 and 2 to take appropriate decision in the matter preferably within three weeks from the date of production of a certified copy of this order if placed before the respondents' authority.
List on 22.3.2010 "
During pendency of Writ Petition No. 10347of 2010, the respondent bank issued notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002( hereinafter referred as "SARFESI" Act) on 31.3.2010. Against the issuance of the said notice, petitioner preferred Writ Petition No. 31319 of 2010 praying interalia that the notice dated 31.3.2010 may be quashed. This petition was disposed of on 26.5.2010 by passing the following order:-
" Heard learned counsel for the petitioners and Sri S. K. Singh learned counsel for the respondents.
Challenge in this petition is the notice under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against which petitioners claim to have filed objection and thus he is to take decision within a time bound frame.
Thus this Court observe that it is for the authority concerned to pass appropriate orders on merit, in accordance with law.
With the aforesaid observation, this writ petition stands disposed of. "
The petitioner then filed IIIrd Writ Petition No. 45006 of 2010 in which the petitioner alleged that in Writ Petition No. 10347 of 2010, this court had observed in its order dated 26.2.2010 that the bank has already referred the issue of excess charge of interest on the loan amount to the higher authorities, hence, respondent nos. 1 and 2 to take appropriate decision in the matter preferably within three weeks. The respondent bank, without complying with the said order, issued notice on 31.3.2010 under Section 13 of the SARFESI Act and therefore, frustrating the very purpose of the writ petition No. 10347 of 2010. The respondent bank vide letter dated 6.4.2010 replied to the petitioner's representation dated 30.9.2009, purportedly in compliance of this Court's order dated 26.2.2010 passed in Writ petition No. 10347 of 2010. The petitioner alleged that after the receipt of the notice dated 31.3.2010 from the respondent bank under Section 13 (2) of the SARFESI Act , the petitioner had written a letter dated 3.5.2010 impressing upon the respondents to comply with the order of this Court passed on 26.2.2010. However, this letter was taken to be an objection under Section 13(2) of the SARFESI Act, though in fact, it was not an objection to the said notice. The petitioner has further alleged that since this court vide order dated 26.2.2010 had already directed the respondent bank to decide the issue preferably within three weeks, the question of deciding the matter on merit by the respondent bank did not arise as the petitioner had not filed formal objections to the notice under Section 13 (2) of the Act. The allegation is that the respondent bank instead of complying with the direction of this court given on 26.2.2010 delegated the task to its subordinate officer. Till the directions as given by this Court are complied with, it was unfair on the part of the respondent to treat the petitioner's letter dated 3.5.2010 as objection to the notice under Section 13 (2) of the Act. In fact the objections were filed on 8.6.2010 . It has been prayed that the respondent bank may be directed to decide the objection dated 8.6.2010 against the notice issued under Section13(2) of the SARFESI Act. It has further been prayed that the impugned order dated 6.7.2010 passed by the respondent no.4 ( Annexure ? 7 to the writ Petition No. 45660 of 2010 ) may be quashed.
The contention of the learned counsel for the petitioner is that since this Court vide order dated 26.02.2010 passed in writ petition no. 10347 of 2010 had given a direction to respondent nos. 1 and 2 to take appropriate decision with regard to the excess charge of the interest, hence, it was unfair and unjust on the part of respondent nos. 1 and 2 to get the matter decided by respondent no. 3 i.e. the General Manager of the Bank of Baroda. The other contention is that since the matter was pending disposal, the bank ought not to have issued the notice under Section 13 (2) of the SARFESI Act. It has also been argued that the petitioner after the receipt of the notice under Section 13 (2) had written a letter to the bank on 03.05.2010 impressing upon the bank authorities to comply with the order of this Court dated 26.02.2010 but this letter was treated to be an objection against the notice under Section 13(2) SARFESI Act and thus the petitioner was not given any opportunity of filing objections and in fact the objections were filed by the petitioner on 08.06.2010 which are yet to be decided by the respondent-bank. It was also contended that the petitioner is not competent to file the appeal under Section 17 of the SARFESI Act.
We have given our thoughtful consideration to the above said arguments and we are satisfied that the submissions do not contain any water.
It is no doubt true that vide order dated 26.02.2010 this Court had directed the respondent no. 1 and 2 to take appropriate decision in the matter but the intention was not to mandate that decision has to be taken only and only by respondent nos. 1 and 2. During course of arguments the learned counsel for the bank pointed out that General Manager of the Bank is the appropriate authority to deal with such type of disputes, hence, the matter was decided by the General Manager under the authority of respondent no. 1.
We do not find any illegality in the disposal of the representation of the petitioner by the General Manager, respondent no.3. We are satisfied that the bank has made substantial compliance of our order dated 26.02.2010 by deciding the representation of the petitioner.
The other contention of the petitioner is that since the matter was pending disposal before the respondent nos. 1 and 2, the notice under Section 13 (2) of the SARFESI Act ought not to have been issued but this argument is also not acceptable. Prayer II made in writ petition no. 10347 of 2010 (as referred in the earlier part of this order) shows that the petitioner had sought the relief of issuance of mandamus directing the respondent-bank not to proceed with the alleged notice under Section 13 (2) of the SARFESI Act, but while passing the order dated 26.02.2010 this Court did not agree to the submission that further proceedings pursuant to the SARFESI Act may be stayed and declined to grant any interim relief in this regard. In this background if the petitioner had received any notice under Section 13 (2) of the ACT, the petitioner ought to have filed objections and infact the petitioner had filed the objections on 03.05.2010 which the petitioner is now saying that it was a letter and not the objections. We may however, refer our order dated 26.05.2010 passed in writ petition no. 31319 of 2010 (referred to in earlier part of this order) in which it has clearly been mentioned that the learned counsel for the petitioner claim to have filed objection against the notice under Section 13 (2) of the Act. Now it does not lie in the mouth of the petitioner that the objections had not been filed.
It is an admitted fact that the respondent-bank has proceeded under Section 13(4) of the Act. Learned counsel for the petitioner although argued that the petitioner shall not be competent to file appeal under Section 17 of Act but this Court is unable to understand as to why the appeal will not be maintainable by the petitioner. Under Section 17 of the Act an appeal may be filed by the borrower after the action has been taken by the bank under Section 13(4) of the Act . Learned counsel for the bank has also conceded to this legal position that after the action having been taken by the bank under Section 13(4) of the Act, the appeal may be filed by the petitioner under Section 17 of the Act.
In writ petition no. 45006 of 2010 a prayer has been made that the banks order dated 06.07.2010 (annexure 7) may be quashed and the objections dated 08.06.2010 filed against the notice under Section 13 (2) of the Act may be directed to be decided by the respondent-bank. We have gone through the impugned order dated 06.07.2010. It is a letter by the Deputy Regional Manager of the bank informing that the petitioner's earlier representation dated 30.09.2009 has been decided by the General Manager vide order dated 06.04.2010 and thus the order of this Court dated 26.02.2010 passed in writ petition no. 10347 of 2010 has been complied with. The above said order dated 06.07.2010 of the General Manager has been annexed to this writ petition as annexure 3 by which the petitioner's representation dated 03.09.2009 has finally been decided and rejected. We do not find any reason to set aside the said order dated 06.04.2010 of the General Manager which has been passed after considering various aspects of the dispute and if the petitioner is not satisfied with the said decision the matter may be raised in appeal under Section 17 of the Act.
We are of the view that nothing has to be done by this Court in the petitions and whatever the remedy is available to the petitioner is an appeal, if the petitioner so advised, under Section 17 of the Act.
During the course of arguments learned counsel for the respondent-bank submitted that this Court may order the bank not to take any steps regarding auction of the assets of the petitioner till the appeal is filed and the matter is taken up by the Tribunal. However we are a little hesitant in passing such order as the appeal has yet not been filed. However if the bank so wishes, it may wait up to the time the appeal is filed by the petitioner.
Both writ petitions are accordingly disposed of with the above said observations.
Order Date :- 25.2.2011 M/A.