Court No. - 39
Case :- WRIT - C No. - 62353 of 2017
Petitioner :- Shyam Kishore
Respondent :- Union Of India And 2 Others
Counsel for Petitioner :- Sheetla Sahai Srivastava
Counsel for Respondent :- A.S.G.I.,Abhishek Mishra With
Case :- WRIT - C No. - 35527 of 2018
Petitioner :- M/S Balaji Traders And Another Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Sheetla Sahai Srivastava
Counsel for Respondent :- A.S.G.I.,Abhishek Mishra
Hon'ble B. Amit Sthalekar,J. Hon'ble Rajiv Joshi,J.
Heard Sri Sheetla Sahai Srivastava, learned counsel for the petitioner and Sri Abhishek Mishra, learned counsel for the respondents. Sri Vaibhav Tripathi, learned counsel files his Parcha on behalf of Union of India. The same is taken on record.
The petitioner in the writ petition is seeking quashing of the notice dated 21.07.2016.
Briefly stated the facts of the case are that in 2008 the petitioner took a loan from the Respondent-Bank of Rs.3,90,000/-. In November, 2013 his loan limit was increased to Rs. 10,00,000/-. According to the petitioner he was making regular deposits as shown in paragraph 15 of the writ petition. The respondent no.3-Bank thereafter directed the petitioner to produce the valuation of the property which was marked with stamp paper of Rs.5,220/-. According to the petitioners he has submitted a search report, valuation report and other documents as stated in paragraph 23 of the writ petition but till date no order has been passed. We however find that the notice dated 21.07.2016 which has been issued to the petitioner is only a notice granting time to the petitioner till 27.07.2016 to get his limit regularized failing which the Bank will be forced to adjust all the securities and legal action will be initiated against the borrower and guarantor and the proceedings of Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (in short 'SARFAESI Act') will also be initiated.
However, no document has been filed in the writ petition to show on what date the petitioner files his application before the Bank alongwith alleged search report, valuation report and stamp paper.
Sri Abhishek Mishra, learned counsel for the respondents informs that the petitioner filed his objections under Section 13 (3A) on 07.09.2018 i.e. after the respondent-bank had already initiated proceedings under Section 13(4) of the SARFAESI Act on 05.09.2018.
In the connected Writ Petition No.35527 of 2018 the petitioners are challenging the notice under Section 13 (4) of the SARFAESI Act dated 05.09.2018.
In our opinion, considering the facts that the petitioners has not submitted any reply to the show cause notice and even his alleged objections under Section 13 (3A) have been filed only after the proceedings under section 13 (4) of the SARFAESI Act have been initiated, these two writ petitions in the High Court is not maintainable particularly, in view of the judgement of the Supreme Court in the case of United Bank of India vs. Satyawati Tandon and others, reported in (2010) 8 SCC 110 wherein the Court in paragraph 42 & 43 has held as under :
"42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression "any person" used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pas interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.
43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi- judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute."
In the case of Standard Chartered Bank Vs. V. Noble Kumar and others reported in (2013) 9 SCC 620, the Supreme Court in paragraph 27 has held as under:
"27. The "appeal" under section 17 is available to the borrower against any measure taken under section 13(4). Taking possession of the secured asset is only one of the measures that can be taken by the secured creditor. Depending upon the nature of the secured asset and the terms and conditions of the security agreement, measures other than taking the possession of the secured asset are possible under section 13(4). Alienating the asset either by lease or sale, etc. and appointing a person to manage the secured asset are some of those possible measures. On the other hand, section 14 authorises the Magistrate only to take possession of the property and forward the asset along with the connected documents to the borrower (sic the secured creditor). Therefore, the borrower is always entitled to prefer an "appeal" under section 17 after the possession of the secured asset is handed over to the secured creditor. Section 13(4) (a) declares that the secured creditor may take possession of the secured assets. It does not specify whether such a possession is to be obtained directly by the secured creditor or by resorting to the procedure under section 14. We are of the opinion that by whatever manner the secured creditor obtains possession either through the process contemplated under section 14 or without resorting to such a process obtaining of the possession of a secured asset is always a measure against which a remedy under section 17 is available."
In a recent judgement dated 5.10.2018 passed in Civil Appeal No. 10251-10265 of 2018 (ICICI Bank Ltd. Vs. Umakant Mahapatra), the Supreme Court has held as under:-
"Delay Condoned.
Leave granted.
Despite several judgements of this Court, including a judgment by Hon'ble Mr. Justice Navin Sinha, as recently as on 30.01.2018 , in Authorized Officer, State Bank of Travancore and Anr. vs. Mathew K.C., (2018) 3 SCC 85, the High Courts continue to entertain matters which arise under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), and keep granting interim orders in favour of persons who are Non-Performing Assets (NPAs).
The writ petition itself was not maintainable, as a result of which, in view of our recent judgment, which has followed earlier judgments of this Court, held as follows :
"18. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industrict Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and Another, (1997) 6 SCC 450, observing :-
"32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops."
The writ petition, in this case, being not maintainable, obviously, all orders passed must perish, including the impugned order, which is set aside.
The appeals are allowed in the aforesaid terms. Pending applications, if any, shall stand disposed of."
In view of the judgments of the Supreme Court in Satyawati Tandon (supra), V. Noble Kumar (supra) and in Umakant Mahapatra (supra), this writ petition is not maintainable as the petitioner has a remedy by way of application/appeal under Section 17 of the SARFAESI Act.
Therefore, these two writ petitions are dismissed, as not maintainable.
Order Date :- 30.10.2018 N Tiwari