Uttarakhand High Court
Radha Dharamwal @ Radha Devi vs Almora Urban Co-Operative Bank & ... on 19 December, 2022
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra
1
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 3306 of 2022
Radha Dharamwal @ Radha Devi ..................Petitioner
-Versus-
Almora Urban Co-operative Bank & Another
..............Respondents
Present: Ms. Seema Dhingra, learned counsel for the petitioner.
Mr. Siddhartha Sah, learned counsel for the respondents.
Date of Hearing and Order: 19.12.2022
Sri Sanjaya Kumar Mishra, J.
Upon hearing the learned counsel for the parties, the Court has passed the following order:-
1. By filing this writ petition, the petitioner has prayed for the following reliefs:-
a. To issue a writ, order or direction in the nature of Certiorari quashing the vide notice dated 14.10.2022 and vide sale notice dated 19.11.2022 issued by the respondent for taking the physical possession and sale over the subject matter property situated at Khasra 467 Min., Village Chandani Chowk, Gurdaura, Pargana Bhawar Chhikhata, Tehsil- Haldwani, District - Nainital, Uttarakhand and any 2 consequential proceedings in the interest of justice thereon;
b. To issue a writ, order or direction in the nature of Mandamus to decide all the representations made before the concerning authorities, and c. To issue any other Order, Writ or direction, which this Hon'ble Court may deem fit and proper in the interest of justice considering facts and circumstances of this case.
d. Award cost of the petition.
2. It is apparent from the record that the Bank is proceeding under Section 13 of the SARFAESI Act and as per the ratio decided by "the State Bank of Travancore Vs. Mathew K. C., (2018) 3 SCC 85", the writ petition is not maintainable, as the petitioner has an alternative remedy approaching the Debt Recovery Tribunal.
3. The learned counsel for the petitioner was given an option by this Court for One Time Settlement (O.T.S.) by making an up-front deposit, but the learned counsel for the petitioner would submit that the petitioner is not liable to be proceeded against under the SARFAESI Act 3 and she is not interested to avail the O.T.S. benefits and is not ready to file any application for O.T.S.
4. Learned counsel appearing for the petitioner would rely upon a judgment passed by the Coordinate Bench of this Court in WPMS No. 2021 of 2013 "Vijay Kumar & Another Vs. Almora Urban Cooperative Bank Ltd. & Others, wherein the Coordinate Bench has held that in view of Section 37 of the SARFAESI Act, it is absolutely clear that the provisions of the SARFAESI Act are in addition to, and not in derogation to any other law, but Cooperative Banks are fully authorized and has proceeded in accordance with law under Sections 70 and 71 of the Uttaranchal Co-operative Societies Act, 2003.
5. The learned counsel for the Bank would, however, rely upon a reported case of "Pandurang Ganpati Chaugule Vs. Vishwasrao Patil Murgud Sahakari Bank Limited, (2020) 9 SCC 215", wherein the question that was referred to the Constitution Bench for deciding if the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, are applicable to Cooperative Bank. 4
6. After considering the matter at length, the Constitution Bench has held as follows:-
"142. Resultantly, we answer the reference as under:
142.1. (1)(a) The cooperative banks registered under the State legislation and multi-State level cooperative societies registered under the MSCS Act, 2002 with respect to "banking" are governed by the legislation relatable to Schedule VII List I Entry 45 of the Constitution of India.
142.1. (b) The cooperative banks run by the cooperative societies registered under the State legislation with respect to the aspects of "incorporation, regulation and winding up", in particular, with respect to the matters which are outside the purview of Schedule VII List I Entry 45 of the Constitution of India, are governed by the said legislation relatable to Schedule VII List II Entry 32 of the Constitution of India.
142.2. (2) The cooperative banks involved in the activities related to banking are covered within the 5 meaning of "banking company" defined under Section 5(c) read with Section 56(a) of the Banking Regulation Act, 1949, which is a legislation relatable to List I Entry 45. It governs the aspect of "banking" of cooperative banks run by the cooperative societies.
The cooperative banks cannot carry on any activity without compliance of the provisions of the Banking Regulation Act, 1949 and any other legislation applicable to such banks relatable to "banking" in List I Entry 45 and the RBI Act relatable to Schedule VII List I Entry 38 of the Constitution of India. 142.3. (3)(a) The cooperative banks under the State legislation and multi-State cooperative banks are "banks" under Section 2(1)(c) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The recovery is an essential part of banking; as such, the recovery procedure prescribed under Section 13 of the Sarfaesi Act, a legislation relatable to Schedule VII List I Entry 45 to the Constitution of India, is applicable.
6
142.4. (3)(b) Parliament has legislative competence under Schedule VII List I Entry 45 of the Constitution of India to provide additional procedures for recovery under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 with respect to cooperative banks. The provisions of Section 2(1)(c)(iv-
a), of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, adding "ex abundanti cautela", "a multi- State cooperative bank" is not ultra vires as well as the Notification dated 28-1-2003 issued with respect to the cooperative banks registered under the State legislation."
7. Thus, it is clear that the SARFAESI Act is applicable to the Co-operative Banks and the State Banks and was also guided by the Banking Regulations Act, 1959. In that view of the matter, the writ petition is dismissed being devoid of merits.
(Sanjaya Kumar Mishra, J.) 19.12.2022 (Grant urgent certified copy of this order, as per Rules) A/-