Calcutta High Court (Appellete Side)
M/S. Kajal Dey vs United Bank Of India & Ors on 6 August, 2010
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.4219 (W) of 2010
M/s. Kajal Dey
v.
United Bank of India & Ors.
Mr. Sahiv Shankar Banerjee and Mr. Dipak Kumar Mhopadhyay, advocates, for
the petitioner. Mr. Amiya Kumar Sur, advocate, for the first-third respondents.
Heard on: August 06, 2010.
Judgement on: August 06, 2010.
The Court:- The petitioner in this art.226 petition dated February 24, 2010 is seeking the following principal reliefs:-
"a) A Writ of Mandamus commanding the respondents and their men, agents and servants and assigns not to take any further action in respect of the notice under Section 13(2) of the SRFAESI Act without following the due process of law.
b) A Writ of prohibition prohibiting the respondents bank authorities to engage the respondent no.3 as their Agent to continue such action under SRFAESI Act, before initiating any process under Section 13(4)."
The notice under s.13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has not been produced with the petition. It has been submitted that the petitioner is not in a position to produce the notice.
In September, 2004 United Bank of India sanctioned the petitioner Rs.37.30 lac overdraft loan. In connection with the facility equitable mortgage of land and building was created. In November, 2004 the limit of the facility was extended to Rs.67.50 lac. On November 22, 2006 the s.13(2) notice was issued. By a letter dated August 14, 2007 the bank informed the petitioner that under an instrument dated July 13, 2007 the financial assets had been transferred to one ASREC (I) Ltd.
By a letter dated May 15, 2007 (sic) the petitioner informed the bank that he had received the bank's letter dated August 14, 2007. Stating that his liability 2 had exceeded Rs.93 lac, and that ASREC was trying to transfer the jurisdiction of the matter to Mumbai, he offered to settle the matter with the bank.
By a letter dated August 29, 2007 ASREC asked the petitioner to deal directly with ASREC for all purposes. By a letter dated August 30, 2007 the petitioner informed ASREC that he was willing to pay the whole of the outstanding debt. He requested ASREC to allow him to discharge the debt "in phased manner" and also to inform him his "present liability". He assured that on receipt of the information he would submit a repayment schedule to clear the debt within a reasonable time.
By a letter dated February 19, 2008 the petitioner requested ASREC to accept Rs.20.00 lac by April 28, 2008 and permit him to pay the balance in five installments by September, 2008. He said that he was agreeable to settle the matter by improving the offer to the extent of Rs.82.00 lac. Under the circumstances, ASREC wrote a letter dated March 7, 2008 that since against the outstanding debt of Rs.1,06,11,871 on March 2, 2008 the petitioner had paid only Rs.50,000, ASREC would proceed further with the s.13(2) notice dated November 22, 2006.
ASREC wrote a letter dated August 29, 2008 in reply to a letter of the petitioner dated March 31, 2008 that the proposal submitted by the petitioner was not acceptable unless it was improved "substantially in terms of settlement amount and upfront payment". There is nothing to show that thereafter the parties remained engaged in correspondence with each other. All of a sudden this petition was brought on February 24, 2010 seeking the above-noted reliefs.
Counsel has argued as follows. ASREC, the reconstruction company, has no right to take any measure on the basis of the s.13(2) notice, since the authorised officer of the bank issuing the notice ceased to possess power to entertain and deal with the petitioner's s.13(3A) representation. The moment the 3 bank transferred the financial assets, the s.13(2) notice lost its force. If permissible in law, ASREC can proceed only after issuing a fresh s.13(2) notice.
In my opinion, the petition should be dismissed solely on the ground of delay. Decision of ASREC stated in its letter dated March 7, 2008 to proceed with the s.13(2) notice dated November 22, 2006 issued by the authorized officer of the bank has been sought to be questioned by bringing this art.226 petition dated February 24, 2010.
Even otherwise, I find no reason to interfere in the matter. It is evident from the facts noted hereinbefore that the petitioner himself offered to pay ASREC. His conduct, in my opinion, clearly estopped him from questioning ASREC's right to proceed with the s.13(2) notice. In view of the provisions of ss.5 and 13(2) of the Act, I do not see how it can be said that ASREC is not entitled to take the measures under s.13(4) on the basis that the petitioner failed to discharge his liability in full within the period specified in sub-s.(2) of s.13.
There is no question of losing any statutory right by the petitioner. In view of the provisions of s.13(2), he was supposed to submit representation, if any, to the s.13(2) notice within sixty days from the date of the notice. The notice was issued as back as November 22, 2006. Hence today there is no question of submitting any s.13(3A) representation to the notice. May be the party entitled to take measures under s.13(4) has not yet taken any measure to recover the debt. But that cannot be a ground to interfere in the matter in exercise of power under art.226 of the Constitution of India.
For these reasons, the petition is dismissed. No costs. Certified xerox.
(Jayanta Kumar Biswas, J.)