Jharkhand High Court
M/S. Chandwa Ceramic Works vs Bank Of India Limited Having Its Head ... on 12 March, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.-806 of 2018
1. M/s. Chandwa Ceramic Works, a sole proprietorship firm through its
proprietor Mrs. Juthika Singh having its office at Main Road, Chandwa,
District- Latehar
2. Mrs. Juthika Singh, wife of Late Kumar Vinod Shankar Singh having
her residence at Main Road, Chandawa, PO & PS- Chandwa, District-
Latehar
3. Rahul Kumar Singh, son of late Kumar Vinod Shankar Singh having his
residence at Main Road, Chandwa, PO & PS- Chandwa, District-
Latehar alongwith his residence at Lalpur, Ranchi
...Petitioners
-V e r s u s-
1. Bank of India Limited having its head office in Mumbai and Zonal
Office Ranchi Zone, Ranchi
2. Recovery Officer, Debts Recovery Tribunal, Ranchi
3. M/s. Santosh Construction, through its partner Mrityunjay Kumar
having its office at Chandwa, PO & PS- Chandwa, District- Latehar
...Respondents
CORAM: - HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioners :- Mr. M.S. Mittal, Sr. Advocate M/s. Rahul Lamba, Renuka Trivedy & Priyanka Singh, Advocates For the Bank of India :- Mr. K.L. Ojha, Advocate Order No.-03 Dated: 12.03.2018 Learned counsel for the petitioner prays for and is allowed to remove the defects, as pointed out by the office, in course of the day.
2. The present writ petition has been filed for quashing the order dated 14.11.2017 passed by the Recovery Officer, Debts Recovery Tribunal, Ranchi in R.P. Case No. 338 of 2016 (Annexure-5 to the writ petition) whereby the reserve price of the mortgaged land of the petitioners was fixed at Rs.2,46,00,000/- for the auction sale. A further prayer has been made for issuance of direction upon the respondents to give effect to One Time Settlement Scheme as provided in letter issued on 15.11.2017 to the petitioners. It is also prayed for issuance of direction upon the respondents for proper and correct identification of the property of petitioner no. 2 covered under order dated 14.11.2017.
3. The factual background of the case as stated in the writ petition is that the petitioner no. 1 being a sole proprietorship firm of the 2 petitioner no.2 availed the term loan facility of Rs.190.00 lakhs and cash credit loan facility of 100.00 lakhs on 05.04.2011 from the respondent no.1 for which the petitioner no. 3 stood guarantor only to the extent of term loan facility of Rs.190.00 lakhs. The petitioner no. 2 to secure the loan amount appertaining to Khewat no.-3, Tauji No. 1, Thana no.-285, Khata no. 140, Jamabandi Holding No. 15, Plot no. 993, Holding No. 15, Thana- Chandwa, District- Latehar mortgaged the land. The petitioner no. 1 could not maintain the loan account properly due to closure of the mining activities in the State of Jharkhand as the business of petitioner no.1 is based upon the availability of raw materials such as raw fire clay, coal, raw bauxite etc. The respondent-Bank filed a case against the petitioners before the Debts Recovery Tribunal, Ranchi being Original Application no. 366 of 2013, which was decided on 16.06.2016 directing the petitioners to pay Rs.2,99,24,475/- to the respondent- Bank and accordingly, a certificate for realization of the aforesaid amount alongwith interest and cost of Rs.1,50,000/- was issued. The petitioners did not challenge the aforesaid order dated 16.06.2016 on the assurance of the official of the respondent-Bank for One Time Settlement Scheme known as „BOI OTS 2017‟. Accordingly, the respondent-Bank issued letter dated 15.11.2017 informing the petitioners regarding the said OTS scheme. The petitioners approached the respondent-Bank with 5% of the ledger outstanding amount as on 31.03.2017 and expressed their willingness to settle the outstanding loan under the OTS scheme. Moreover, the officials of the respondent-Bank asked the petitioners to wait till January, 2018 since they were busy in the quarter ending December, 2017 and informed the petitioners that the OTS scheme is valid till 31.03.2018. Accordingly, the petitioners were waiting till January, 2018. However surprisingly, the respondent Bank through its representative namely M/s. Softdeal Professional Services Private Limited came to the petitioners‟ premises on 20.01.2018 and took possession/seized the properties of the petitioners, including movable and immovable assets, some of which were not even given as security to the respondent Bank and/or some which were not belonging to the petitioner no.1 or the petitioner no. 2.
34. The learned Senior Counsel appearing on behalf of the petitioners submits that the impugned order dated 14.11.2017 has been passed ex-parte by the respondent no. 2 in R.P. No. 338 of 2016 since the petitioners had no knowledge regarding R.P. No. 338 of 2016 as they were actively pursuing the OTS scheme. As soon as the respondent-Bank seized the entire factory and property of the petitioners, they approached the respondent-Bank officials who disclosed about passing of the orders dated 15.11.2016 and 14.11.2017. Learned counsel for the petitioners further submits that the petitioners are ready for settlement under the OTS scheme issued by the respondent-Bank vide letter dated 15.11.2017 and as such, the petitioners may be given one chance in view of letter dated 15.11.2017 by quashing the impugned order dated 14.11.2017.
5. Per contra, the learned counsel appearing on behalf of the respondent-Bank submits that the petitioner has efficacious/statutory remedy provided under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ( in short "the Act, 1993").
6. Having heard the learned counsels for the parties and on going through the relevant documents placed on record and the laws applicable in this regard, it appears that admittedly, the petitioner has not filed any appeal against the order passed by the respondent no.2 in R.P. Case No. 338 of 2016. Under the said factual background, the provisions of the Act, 1993 and the Rules framed thereunder are required to be considered.
7. Section 30 of the Act reads as under:-
"30. Appeal against the order of Recovery Officer.-
(1) Notwithstanding anything contained in Section 29, any person aggrieved by an order of the Recovery Officer made under this Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal.
(2) On receipt of an appeal under sub-section (1), the Tribunal may, after giving an opportunity to the appellant to be heard, and after making such enquiry as it deems fit, confirm, modify or set aside the order made by the Recovery Officer in exercise of his powers under Sections 25 to 28 (both inclusive)."4
8. On plain reading of Section 30 of the Act, 1993, it would be evident that any person being aggrieved by an order of the Recovery Officer passed under the Act, 1993 can prefer appeal under Section 30 of the Act, 1993.
9. The Hon‟ble Supreme Court while discussing the scope of judicial intervention in such matters under Article 226 of the Constitution of India, in a recent judgment rendered in Civil Appeal No. 1281 of 2018 (Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C.) has held as under:
"16. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex- parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:-
"46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v.Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant 5 parameters and public interest, pass an appropriate interim order."
17. The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference."
10. Considering the aforesaid ratio laid down by the Hon‟ble Supreme Court in the case of Authorized Officer, State Bank of Travancore and another (supra), I am not inclined to exercise the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India.
11. The writ petition is accordingly dismissed as not maintainable at this stage. The petitioner is, however, at liberty to take appropriate recourse against the action of the respondents, if so advised, in accordance with law.
(Rajesh Shankar, J.) Ritesh/N. A.F.R