Calcutta High Court (Appellete Side)
M/S. Kent Pharmaceuticals & Ors vs The Allahabad Bank & Ors on 8 June, 2015
Author: I.P. Mukerji
Bench: I.P. Mukerji
19 08.06.15
W.P. 7606 (W) of 2015
M/s. Kent Pharmaceuticals & Ors.
Vs.
The Allahabad Bank & Ors.
Mr. Sujash Ghosh Dostidar
Ms. Sankari Roy .... For the Petitioners.
Mr. Mukul Lahiri, Sr. Advocate
Ms. Puja Beriwal ... For the Respondent Nos. 7 & 8.
None appears for the Bank.
I give credit to learned counsel appearing for the parties for taking me extensively through the entire facts of this case and connected matters.
The Supreme Court in Standard Chartered Bank Vs. V. Noble Kumar reported in (2013)9 S.C.C. 620 held that "in any of the three situations, after the possession is handed over to the secured creditor, the subsequent specified provisions of rule 8 concerning the preservation, valuation and sale of the secured assets, and other subsequent rules from the Security Interest (Enforcement) rules, 2002, shall apply."
S.D. A Division Bench of this Court presided over by Chief Justice, Manjula Chellur, in Central Bank of India Vs. Debasish Nandy & Ors. decided on 5th February, 2015 (sofar unreported) opined as follows:
" It is clear from the aforesaid declaration of law that only after possession is handed over to the secured creditor, the later is entitled to invoke Rule 8 of the Security Interest Enforcement Rules, 2002 and issue the sale notice.
Admittedly in the instant case possession has not been handed over to the secured creditor in terms of paragraphs 36. 1 to 36.3 of Standard Chartered Bank Vs. V. Noble Kumar & Ors. (supra). Therefore, we find no reason to interfere with the order passed by the learned Single Judge quashing the sale notice. This order shall not preclude the appellant/Bank from taking appropriate steps under the SARFAESI Act, 2002 in accordance with law.
The appeal is accordingly dismissed."
On a writ (W.P. 26894(w) of 2014) preferred by the purchasers Mr. Justice Soumitra Pal ordered on 13th January, 2015 the Commissioner of Police, Barrackpore, North 24 Parganas to render assistance to the Bank to hand over possession of the property to the purchasers.
It follows that on 13th January, 2015 possession had not been taken.
The borrower preferred an appeal from this order which is pending before a Division Bench of this Court. The learned Division Bench was pleased to grant a stay of the said order dated 13th January, 2015, on 24th March, 2015. In that appeal an application by the purchasers is also pending claiming refund of the purchase money.
My attention was drawn to the sale certificate dated 7th January, 2013 published by the Allahabad Bank. Clearly it was issued without the bank taking possession of the property inasmuch as the order of Mr. Justice Soumitra Pal dated 13th January, 2014 proceeded on the basis that no possession had been taken.
Therefore, applying the aforesaid judgements the sale certificate dated 7th January, 2013 is set aside and quashed.
This order will not preclude the bank from taking fresh steps for sale of the subject property in accordance with law.
It follows from this order that the Bank will refund the consideration paid by Mr. Lahiri's client being the purchasers of a sum of Rs.25,25,000/- with interest at the rate of 7.5% from 7th January, 2013 (the date of payment) till the date of refund. Such refund should be made within eight weeks from the date of communication of this order.
All the papers are before this Court.
Affidavits were not invited. The allegations contained in the writ petition are deemed not to have been admitted.
The writ application is thus allowed to the above extent.
Urgent certified photocopy of this order, if applied for, be supplied to the parties on priority basis.
( I.P. Mukerji, J.)