Jharkhand High Court
Ms Black Diamond Techno Pvt Ltd Through ... vs State Bank Of India Through Its Chief ... on 20 January, 2015
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 4030 of 2014
1. M/s Black Diamond Techno Pvt. Ltd,
K.G. Asharam, Govindpur Road, Dhanbad through
its director Rohit Kumar Singh, S/o Sri Binay Singh,
Shanti Colony, Saraidhela, Dhanbad
2. Binay Singh, S/o Sri Tribeni Prasad Singh,
Shanti Colony, Saraidhela, Dhanbad
3. Rohit Kumar Singh, S/o Sri Binay Singh,
Shanti Colony, Saraidhela, Dhanbad ... ... Petitioners
Versus
1. State Bank of India, Madam Cama Road, Nariman Point,
Mumbai 400 021, branch at State Bank of India,
SME Branch, Goodwill Properties, Bank More,
Dhanbad through its Chief Manager
2. Authorised Officer, State Bank of India, SME Branch,
Goodwill Properties, Bank More, Dhanbad ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioners : Mr. M. Sohail Anwar, Sr. Advocate
Mr. Deepak Sinha, Advocate
Mr. Vikas Pandey, Advocate
For the Respondents : Mr. Ranjan Kumar, Advocate
04/20.01.2015Challenging possession notice dated 16.07.2014 under Section 13(4) and notice dated 15.05.2014 under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002), the present writ petition has been filed.
2. At the outset, the learned counsel appearing for the respondentState Bank of India raised preliminary objection as to the maintainability of the writ petition on the ground of availability of the alternative remedy under the SARFAESI Act, 2002.
3. Mr. M. Sohail Anwar, the learned Senior counsel appearing for the petitionercompany submits that a notice under 2 Section 13(2) of the SARFAESI Act, 2002 was issued on 15.05.2014 and thereafter, the petitioners preferred objection under Section 13 (3A) on 05.06.2014, which was received by the respondentState Bank of India on 06.06.2014. From the information received through RTI, it appears that though the representation of the petitioners is said to have been disposed of on 16.06.2014, a communication in this regard was sent on 17.09.2014 and thus, the mandatory provision under Section 13(3A) of the SARFAESI Act, 2002 has been violated.
4. The learned Senior counsel appearing for the petitioners disputed the communication dated 17.09.2014 and order dated 16.06.2014 and submits that the petitioners have taken specific stand that the said communication is forged, fabricated and antedated document.
5. The learned counsel appearing for the respondentState Bank of India submits that the period of one week under Section 13(3A) has been extended to 15 days by an amendment in the year, 2013.
6. Relying on a decision of the Hon'ble Supreme Court in "Mardia Chemicals Ltd and others vs. Union of India and others, reported in (2004) 4 SCC 311, the learned Senior counsel appearing for the petitioners submits that on admitted facts, now it is established that the mandatory provision under Section 13 (3A) of the SARFAESI Act, 2002 has been violated by the respondentState Bank of India and therefore, notice issued 3 under Section 13 (2) as well as under Section 13(4) of the SARFAESI Act, 2002 are liable to be quashed.
7. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record.
8. In "United Bank of India Vs. Satyawati Tondon and Others" reported in (2010) 8 SCC 110, the Hon'ble Supreme Court after considering the object and scheme of the Debts to Financial Institution and the SARFAESI Act, 2002 has held that Act of 2002 is a complete code and it provides efficacious alternative remedy to a borrower. In view of the difficulties/hardship faced by the borrower Section 13 (3A) was introduced in the SARFAESI Act, 2002 w.e.f from 11.11.2004. It is a recognised fact that provision under Section 13 (3A) of the SARFAESI Act, 2002 is not mere formalities however, the respondentBank has claimed that the representation dated 05.06.2014 under Section 13 (3A) preferred by the petitioner Company has been disposed of on 16.06.2014. It also appears from the provisions of the SARFAESI Act, 2002 that rejection of representation under Section 13(3A) would not be a ground for filing appeal under the Act.
9. In "United Bank of India Vs. Satyawati Tondon and Others"
reported in (2010) 8 SCC 110, the Hon'ble Supreme Court has held as under :
43. ".......... the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to 4 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."
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55. 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 the 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." 5
10. From the aforesaid, I find that there is efficacious remedy available to the petitioners. A dispute with respect to communication of the decision taken by the respondentState Bank of India on the application dated 05.06.2014 under Section 13 (3A) has also been raised by the petitioners in the present proceeding. The petitioners have failed to indicate any reason for exercise of jurisdiction by this court and therefore, the present writ petition must be held not maintainable. Accordingly, the writ petition is dismissed as not maintainable. The petitioners are at liberty to move the Debts Recovery Tribunal within four weeks.
11. In view of the order passed in the writ petition, I.A. No. 5947 of 2014 is accordingly, disposed of.
(Shree Chandrashekhar, J.) Tanuj/