Calcutta High Court (Appellete Side)
Utsa Hazra & Anr vs The State Of West Bengal & Ors on 12 April, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1 In The High Court At Calcutta Constitutional Writ Jurisdiction Appellate Side Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas.
W.P. No. 5777 (W) of 2011 Utsa Hazra & Anr.
v.
The State of West Bengal & Ors.
Mr Mohan K. Pututanda, advocate, for the petitioners. Mr. Farook M. Razack, Additional Solicitor-General, for the Union of India. Ms Sima Sengupta, advocate, for the State. Mr Sukanta Das, advocate, for the bank.
Heard on: April 12, 2011.
Judgment on: April 12, 2011.
The Court: - The petitioners bringing this art.226 petition dated March 25, 2011 previously brought W.P. No. 4026 (W) of 2011 (Utsa Hazra & Anr. v. The State of West Bengal & Ors.), which was disposed of by a judgment dated March 4, 2011.
The judgement dated March 4, 2011 disposing of W.P. No. 4026 (W) of 2011 is quoted below:
"The petitioners in this art.226 petition dated February 28,2011 are questioning the steps taken by the bank under provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002.
Counsel argues as follows. After about eleven years from the date the petitioners took a loan the authorized officer of the bank issued a notice dated October 27,2010 under s.13(2) of the Act. The petitioners' objection to the notice has not been properly considered. Since the s.13(2) notice is bad in law, the petitioners are entitled to approach the Writ Court. Besides, the Tribunal will not entertain an appeal under s.17 of the Act because the loan was less than Rs.10 lakh.
I do not find any merit in the argument. It is evident that after disposing of the petitioners' objection to the s.13(2) notice the authorized officer of the bank decided to take measures under s.13(4) of the Act. A notice dated February 25,2011 was issued for the purpose.
Once measures are taken under s.13(4) the petitioners will get a right to appeal to the Debts Recovery Tribunal under s.17 of the Act. They will be free to agitate all the points agitating which they brought this petition. There is no basis to say that the Tribunal will not entertain an appeal since the loan was less than Rs.10 lakh. The petitioners are free to approach the Tribunal raising all points including the jurisdiction of the bank to issue the demand notice under s.13(2).
With these observations, the petition is disposed of. No costs. Certified xerox."
In this petition the petitioners are once again questioning the same s.13(2) and s.13(4) notices dated October 27, 2010 and February 25, 2011 respectively issued by the authorized officer of the bank, the Midnapore Peoples' Co-Operative Bank Limited.
2The new point taken in this petition is that a notification dated January 28, 2003 issued by the Central Government in exercise of power conferred by s.2 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 specifying the Co-operative Bank as bank for the purpose of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is "ultra- vires to the provisions of Constitution of India and Banking laws there under."
Mr Razzack, Additional Solicitor-General, raises the question of maintainability of the petition. He has said that the issue involved in this petition is hit by the principles of constructive res judicata. To this counsel for the petitioners has said that the question raising which this petition has been brought was not raised in the previous petition.
In my opinion, this petition is not maintainable. While questioning the s.13(2) and s.13(4) notices in the previous petition the petitioners were free to question their validity raising all points including the new point raising which this petition has been brought. They chose not to raise this point.
It is not the case that the notification in question has been issued after their previous case was decided. The notification dated January 28, 2003 was in force at the date the authorized officer of the bank issued the two notices and the petitioners moved the previous art.226 petition questioning the validity of the notices.
The petitioners cannot be permitted to file a fresh art.226 petition on the same cause of action taking a new point that they could have and ought to have raised in their previous petition. In this context reference can be made to the decision of the Supreme Court in Forward Construction Co. & Ors. v. Prabhat Mandal & Ors., (1986)1 SCC100.
Besides, in view of the decisions in United Bank of India v. Satyawati Tondon & Ors., (2010) 8SCC 110 and Kanaiyalal Lalchand Sachdev v. State of Maharashtra & Ors., (2011)2SCC 782 the High Court is not to interfere in the proceedings in exercise of power under art.226.
For these reasons, the petition is dismissed. No costs. Certified xerox.
3(Jayanta Kumar Biswas, J.)