Bombay High Court
M/S. Mission Industries, A Partnership ... vs Bank Of Baroda Through Its Authorized ... on 6 July, 2020
Bench: Sunil B. Shukre, S. M. Modak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1581 OF 2020
1) M/s. Mission Industries,
A partnership firm Having it's Industry at Plot
No.66/67, near Asha Hospital, Ramlaxmi
Society, cantonment Area, Kamptee,
Nagpur-441001 through it's
Partner Yogesh Gajanan Bawankule,
Aged about 38 years,
Occupation : Business,
r/o. Behind Goyal Talkies, Kamptee-441002.
2) Yogesh Gajanan Bawankule,
Aged about 38 years,
Occupation : Business,
r/o. Behind Goyal Talkies,
Kamptee-441002. .... PETITIONERS.
// VERSUS //
Bank of Baroda,
Through its Authorized Officer,
Dharampeth Branch, WHC Road,
Dharampeth, Nagpur-440010. .... RESPONDENT
Mr. R. H Agrawal, Advocate for the petitioners. Shri S. M. Bhangde, Advocate for the respondent/Bank. ________________________________________________________________ CORAM : SUNIL B. SHUKRE AND S. M. MODAK JJ.
DATE : 06th JULY, 2020. P. C.
Heard Shri R. H. Agrawal, learned counsel for the petitioners and Shri S. M. Bhangde, learned counsel for the respondent/Bank. ::: Uploaded on - 07/07/2020 ::: Downloaded on - 08/07/2020 04:18:55 :::
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2. By this petition, the petitioners are seeking the directions to the respondent/Bank not to take any coercive steps for about of three months in view of the extreme COVID-19 condition, prevailing in the country. The effect that the petitioners are seeking is the protection of possession of petitioners over the secured assets, which have been sold in public auction held on 08.04.2020, to two purchasers in the auction sale, directed by this Court to be added as party respondents by order passed on 30.04.2020. This Order has, however, not been complied with by the petitioners. Be as it may. The grounds on which the aforestated direction or writ have been sought by the petitioners are that the petitioners had given an offer to repay dues by way of one time settlement to the respondent/Bank on 09.04.2020, but, same has not been considered appropriately by the respondent/Bank, although during the pendency of the present petition, the petitioners have already approached DRT, Nagpur under the Provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (in short "the Act, 2002"), for cancellation of the auction sale and the petitioners are feeling handicapped owing to the DRT not allowing even virtual hearing of urgent matters.
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3. Shri S. M. Bhangde, learned counsel for the respondent/Bank, submits that the auction notice was published on 03.03.2020 and secured assets were sold on 08.04.2020, the date on which the auction was held and an offer submitted by the additional respondents yet to be joined by the petitioners, was accepted. The auction price settled by the respondent/Bank was of Rs.44,00,000/- and the entire amount has been deposited by these persons, yet to be joined as party respondents, in installments on various dates, so submits learned counsel for the respondent/Bank. He further points out that an amount of Rs.4,00,000/- was deposited by the respondents, yet to be joined as parties on 03.04.2020 and further amounts of Rs.7,00,000/- and Rs.33,00,000/- were deposited by them on 09.04.2020 and 18.04.2020 respectively.
4. Shri S. M. Bhangde, learned counsel for the respondent/Bank further points out that the sale certificate was issued by the respondent/Bank on 21.04.2020, and whereas, in this petition, filed on 15.04.2020, although pending on that date, no interim relief was granted and has been granted so far by this Court. He also submits that the charge of DRT, Nagpur is kept with DRT, ::: Uploaded on - 07/07/2020 ::: Downloaded on - 08/07/2020 04:18:55 ::: 34-wp-1581-2020(J).odt 4/6 Hyderabad and so it is not true that petitioners can not approach DRT for seeking any urgent hearings through appropriate methods. He further submits that whatever offer made by the petitioner was only in respect of an amount which was somewhat lesser than the amount outstanding against the petitioners as of 03.03.2020 and that was also after the auction notice was published on 03.03.2020. He submits that this offer was in violation of provisions contained in Section 13(8) of the Act, 2002.
5. So far as the facts stated by the learned counsel for the respondent/Bank in respect of various dates and events as reproduced earlier are concerned, there is no dispute raised about the same. The dispute is only about the virtual functioning of DRT, Hyderabad, about which we should not be concerned in any way in this petition.
6. Turning back to the controversy raised herein, we find that provisions contained in Section 13(8) of the Act, 2002 when read in the light of the admitted facts, would put the controversy at rest.
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7. Section 13(8) of the Act, 2002, gives an opportunity to debtor to prevent his property from being sold towards realization of the dues, payable by the debtor to secured creditor like the respondent/Bank. It provides that when the amount of dues of the secured creditor together with all costs, charges and expenses incurred by him is tendered to the secured creditor at any time before the date of publication of notice for public auction or inviting quotations or tenders for public or private individuals for transfer by way of lease, assignment for sale of the secured assets, the secured assets shall not be transferred by way of lease, assignment or sale by the secured creditor.
8. In the present case, undoubtedly the offer that was made by the petitioners for payment of the dues to the respondent/ Bank, was not in terms of the provisions contained in Section 13 (8) of the Act, 2002. The offer lacked in two requirements of these provisions. The first requirement was that the offer should have been made before the auction notice was published and it was not fulfilled. The auction notice here was published on 03.03.2020 and whereas the offer to repay the dues was made on 09.04.2020. Secondly, the offer so made was for the amount which was somewhat lesser than the amount outstanding against the petitioner ::: Uploaded on - 07/07/2020 ::: Downloaded on - 08/07/2020 04:18:55 ::: 34-wp-1581-2020(J).odt 6/6 on 03.03.2020, the amount outstanding on that date was roughly of Rs.1,30,00,000/- and whereas the offer to repay dues was for about Rs.1,25,00,000/-. That means, even the second requirement of depositing the entire outstanding amount as of date of publication of auction notice was not fulfilled. So, we do not find any merit in this petition.
9. Apart from what is stated above, we further find that the sale certificate has also been issued by the respondent/Bank to the purchasers yet to be joined as party respondents and this act on the part of the respondent/Bank has sealed the fate of the issue tried to be raised in this petition, much in a negative way for the petitioners.
10. In view of above, finding no substance in this petition, the petition stands summarily dismissed. No costs.
11. This order be uploaded on the High Court Website and also be communicated to the learned counsel appearing for the parties, either on the email address or on Whats App or by such other mode, as is permissible in law.
JUDGE JUDGE
nd.thawre
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