Gujarat High Court
India Resurgence Arc Pvt. Ltd. Through ... vs District Magistrate, Navsari on 30 November, 2022
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/21241/2022 ORDER DATED: 30/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21241 of 2022
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INDIA RESURGENCE ARC PVT. LTD. THROUGH AUTHORISED OFFICER
AKSHAY RAO
Versus
DISTRICT MAGISTRATE, NAVSARI
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Appearance:
URVESH K GOR(7448) for the Petitioner(s) No. 1
MR RAJ TANNA, AGP for the Respondent(s) No. 5
DS AFF.NOT FILED (N) for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 30/11/2022
ORAL ORDER
1.Heard learned advocate Mr. Urvesh K. Gori for the petitioner and learned Assistant Government Pleader Mr. Raj Tanna for the respondent State.
2.By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :
"A. Be pleased to quashed and set aside the impugned order / communication dated 30.06.2022 issued by the Respondent no.1Ld.Page 1 of 9 Downloaded on : Sat Dec 24 00:55:10 IST 2022
C/SCA/21241/2022 ORDER DATED: 30/11/2022 Collector and District Magistrate, Navsari vide letter number as: CH / REV / Vashi / 571 / 2022 rejecting and returning the s. 14 Application filed by the Petitioner on 31.01.2022 (Annexure P/2).
B. Pending admission, hearing and final disposal of this Petition be pleased to Stay operation and implementation of impugned order / communication dated 30.06.2022 issued by the Respondent no. 1 Ld. Collector and District Magistrate, Navsari vide letter number as:
CH/REV / Vashi / 571 / 2022 rejecting and returning the s. 14 Application filed by the Petitioner on 31.01.2022 (Annexure P/2).
C. Be pleased to direct the Respondent No. 1 to numbered and pass a fresh order upon Application (Annexure P/2)filed under section 14 of the Securitisation Act, 2002 by the Petitioner dated 31.01.2022 being un-numbered as SARFAESI Case;
D. Cost of this petition;
E. Any other relief, order or direction which Hon'ble Court may deem just, fit, proper and equitable in the facts of the case."
3.Brief facts of the case are that the petitioner is a company registered under the provisions of Companies Act, 1956 as an Page 2 of 9 Downloaded on : Sat Dec 24 00:55:10 IST 2022 C/SCA/21241/2022 ORDER DATED: 30/11/2022 Assets Reconstruction Company pursuant to section 3 of the Securitisation and Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (For short "SARFAESI Act").
4.The petitioner acquired the debts of one Religare Finvest Ltd. by virtue of the registered Assignment Deed dated 5.11.2019 and respondent nos. 2 to 4 secured the loan facility, created mortgage over its immovable property in favour of the petitioner on 8.01.2013 by depositing Memorandum of Title Deeds.
5.On account of default in repayment of dues of erstwhile Religare Finvest Ltd, the accounts of the borrowers were classified as Non Performing Asset on 31.12.2018.
6.On 05.07.2021, the petitioner issued demand Page 3 of 9 Downloaded on : Sat Dec 24 00:55:10 IST 2022 C/SCA/21241/2022 ORDER DATED: 30/11/2022 notice under section 13(2) for recovery of Rs. 57,08,333/- as on 30.06.2021 as per the SARFAESI Act pursuant to default in repayment of financial assistance availed by borrowers. Thereafter on 12.10.2021 on account of failure of borrowers to repay the loan amount within sixty days as stipulated in the demand notice, the petitioner bank issued possession notice under section 13(4) of the SARFAESI Act read with Rule 8 of Security Interest Enforcement Rules, 2002 and took symbolic possession of the secured assets of borrowers.
7.The petitioner thereafter filed an application under section 14 of the SARFAESI Act on 31.01.2022 before respondent no.1 for taking physical possession of secured assets of borrowers in order to recover its dues.
8.Respondent no.1 issued letter on 22.02.2022 Page 4 of 9 Downloaded on : Sat Dec 24 00:55:10 IST 2022 C/SCA/21241/2022 ORDER DATED: 30/11/2022 informing the petitioner that 7/12 extract of ownership proof of borrower at Serial No. 17 of checklist is required to be filed by the petitioner. The petitioner supplied the necessary documents on 28.02.2022 as sought for by respondent no.1.
9.It is the case of the petitioner that since no order was passed in the application under section 14 of the SARFAESI Act preferred by the petitioner even though considerable time had passed, petitioner filed a representation on 24.05.2022 requesting the respondent no.1 to pass the final order in section 14 application preferred by the petitioner.
10. The petitioner also filed an application before the respondent no.1 on 31.01.2022 reiterating his request since huge debts of borrower were not being paid till date. Page 5 of 9 Downloaded on : Sat Dec 24 00:55:10 IST 2022 C/SCA/21241/2022 ORDER DATED: 30/11/2022
11. Respondent no.1 by impugned order dated 30.06.2022 rejected the section 14 application preferred by the petitioner on the ground that 7/12 extract of the mortgage property does not include the name of borrowers i.e respondent nos. 2 and 3.
12. Being aggrieved by the impugned order, the petitioner has preferred this petition.
13. Learned advocate Mr. Urvesh Gor at the outset submitted that respondent Collector has passed the impugned order dated 30.06.2022 rejecting the application filed by the petitioner under section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (For short 'the SARFAESI Act') only on the ground that in village Form No.7 & 12, name of the borrower namely, Shri Sabaldas Gopaldas Sevani and Smt. Seemaben Page 6 of 9 Downloaded on : Sat Dec 24 00:55:10 IST 2022 C/SCA/21241/2022 ORDER DATED: 30/11/2022 Sabaldas Sevani are not reflected and therefore, the application is disposed of without passing an order under section 14 of the SARFAESI Act. It was submitted that the impugned order of the Collector is contrary to the settled legal position that `the Collector is to discharge administerial act under section 14 of the SARFAESI Act providing assistance to the financial institution and after verification of 9 pointer affidavit, pass necessary order under section 14 of the SARFAESI Act. Learned advocate for the petitioner invited the attention of the Court to 9 pointer affidavit at page 32 of the petition along with the documents produced before the District Collector which are as under :
Sr. No. Particulars Page No. 1 Annexure "A"
True Copy of Board Resolution dated 19- 06-2021 issued by applicant to appoint Mr. Harshwardhan Kadam as Authorised Officer Page 7 of 9 Downloaded on : Sat Dec 24 00:55:10 IST 2022 C/SCA/21241/2022 ORDER DATED: 30/11/2022 2 Annexure "B"
Copy of Registered Assignment Agreement Deed Dated 05/11/2019 vide Registration No.12392 of 2019 registered before the Joint Sub-Registrar, Andheri No.6 on Dated 05-11-2019 3 Annexure "C"
Mortgage Deed dated 08-01-2013 4 Annexure "D"
Title Deeds of mortgaged properties I.e Registered Sale Deed No. 4428/2010 dated 03-06-2010 5 Annexure "E"
Demand Notices u/s. 13(2) of SARFAESI Act, Dated 05/07/2021 along with RPAD Slip, Track consignment record and Paper publication of Demand Notice dated 31-07-2021 6 Annexure "F"
Possession Notice u/s 13(4) of SARFAESI Act, dated 12-10-2021 along with Photographs and Paper Publication of Possession notice dated 19-10-2021 8 Copy of Loan Sanction Letter dated 31- 12-2012 and copy of Facility Agreement for secured loan dated 31-12-2012 9 Copy of Account Statement of the borrower from 01-11-2020 to 31-12-2021 10 Copy of Certificate issued by Reserve Bank of India to the Company
14. The respondent Collector however, without considering the aforesaid application as well as affidavit and documents produced before it, has passed the impugned order contrary to the settled legal position and Page 8 of 9 Downloaded on : Sat Dec 24 00:55:10 IST 2022 C/SCA/21241/2022 ORDER DATED: 30/11/2022 therefore, the same is quashed and set aside with a direction to pass an appropriate order under section 14 of the SARFAESI Act in accordance with law within a period of 30 days from the date of receipt of this order.
15. Petition is accordingly disposed of.
Direct service is permitted.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 9 of 9 Downloaded on : Sat Dec 24 00:55:10 IST 2022