Heard Mr. Hasurkar, learned advocate for the petitioner, and Mr. Mihir Joshi, learned Senior Advocate, appearing with Mr. Sandeep Singhi, learned advocate for the respondent Nos.1 and 2. 2. The petitioner is a licencee – electricity company, who is engaged in activity of transmission and supply of electricity. The respondent No.1 is a Financial Corporation within the meaning of the term defined under the State Financial Corporation Act.
3. In view of the provisions contained under the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 [hereinafter referred to as “SARFAESI Act”] r.w. provisions under the State Financial Corporation Act, the respondent No.1 is authorized to dispose of the secured assets, in the event, the borrower defaults in making payment of its dues. In one such case, the respondent No.1 Corporation proposed to dispose, by auction sell, the properties of the respondent No.3 herein.
4. It is in connection with the said decision and action of respondent No.1 Corporation that the petitioner has taken out present petition seeking below mentioned relief:-
“6(B) YOUR LORDSHIP may be pleased to issue a writ of mandamus, or any other appropriate writ or order or direction directing Respondent No.1 & 2 to modify the advertisement for sale of unit of Respondent No.3 incorporating notice as to dues of petitioner company and its right of withholding of power supply to prospective buyer unless the above referred dues are cleared”
5. Mr. Hasurkar, learned advocate for the petitioner, has submitted that the petitioner had approached the respondent Corporation and informed that the petitioner has certain dues, which have not been paid by the respondent No.3, and that therefore, while undertaking the process of auction sell, the details about the dues of the petitioner may be mentioned in the advertisement / public notice of auction sell. The petitioner has claimed that the respondent No.1 Corporation did not consider the request of the petitioner. Therefore, the petitioner has taken out present petition. Mr. Hasurkar, learned advocate for the petitioner, submitted that it has taken- out present petition in the interest of bidders.
6. Mr. Mihir Joshi, learned Senior Advocate for the respondent Corporation, has submitted that the petition has been preferred much after the advertisement / public notice was issued/published. Mr. Joshi has submitted that the advertisement / public notice was issued on 14.6.2011 whereas the petition and the notice thereof came to be served to the respondent Corporation on 2.8.2011 and that therefore, the cause for present petition did not exist/survive on the date when the petition and the notice was served to the respondent Corporation.
6.1 Mr. Joshi, learned Senior Counsel, further submitted that the first notice for auction sell was issued on 23.3.2011 and subsequently, amended notice was issued on 12.5.2011. He also submitted that the auction of the property in question was held on 14.6.2011 whereas the petition and the notice came to be served on 2.8.2011. Thus, the action of issuing advertisement and holding auction had already taken place before service of notice and petition to the replying respondent and that therefore, the petition has lost its cause and that therefore, the petition does not deserve to be entertained.
6.2 Besides the aforesaid, the respondent Corporation has also contended that a writ petition for such relief would not be maintainable. It is also claimed that the respondent Corporation cannot be directed to conduct inquiries about dues (against the property in question) of various organizations/bodies like Municipality, Panchayat, Electricity Company, other financial institutions, Sales Tax and Excise Departments, more particularly when general intimation vide public notice/advertisement is issued for auction sale which would put all concerned and interested parties to notice. As and when the advertisement is issued, it is for the concerned creditor to take necessary steps to secure its dues.
6.3 Mr. Joshi, learned Senior Advocate for the respondent Corporation, also submitted that the respondent Corporation, ordinarily, specifies/advertises all declared and registered encumbrances/charges created and registered against the property, however, for dues which are not the “charge”, particularly “registered charge” the respondent corporation cannot be expected to make inquiries into such claims/dues and include it in the advertisement.
7. In the facts of present case, it is not necessary to enter into the said larger issues. In view of the fact that so far as auction sell of the property of respondent No.3 is concerned, the petition has been preferred after the advertisement was issued and before the respondent came to be served with the petition and notice thereof, the auction sell had already taken place and that therefore, the petition has lost its cause and does not deserve to be entertained.
8. Furthermore, from the relief prayed for by the petitioner in present petition, particularly the request to issue “....direction directing Respondent No.1 & 2 to modify the advertisement for sale of unit of Respondent No.3 incorporating notice as to dues of petitioner .......”, it becomes clear that the relief prayed for in present petition is in connection with and with reference to the respondent No.3 alone and the unit / property of respondent No.3 and the petitioner has not prayed for any general direction or declaration against the respondent No.1 corporation for any advertisement, which may be issued by respondent No.4 for auction sell of any defaulter.
Under the circumstances, in view of the relief prayed for by the petitioner in present petition, as per paragraph – 6(B), the Court is required to consider the petitioner's request only with reference to the advertisement for sale of unit of respondent No.3 and nothing beyond that.
Now, so far as auction sell of respondent No.3 is concerned, as mentioned hereinabove, not only the advertisement for auction sell of unit of respondent No.3 was issued much before the date on which the petition came to be filed and notice as well as petition came to be served on the respondent No.1 corporation, but even the auction sell was held and completed before the notice in the petition and the petition came to be served on the respondent No.1 corporation.
In this view of the matter, any occasion for issuing any direction to respondent No.1, as prayed for by the petitioner in paragraph – 6(B), would not arise and does not survive and that therefore also, the petition does not deserve to be entertained at this stage.
The petition stands disposed of accordingly. Notice is discharged.
ORDER IN CIVIL APPLICATION No.11310 of 2011.
In view of disposal of main writ petition, Civil Application does not survive. Therefore, Civil Application also stands disposed of accordingly.
(K.M.Thaker, J.) kdc