Calcutta High Court (Appellete Side)
Shalini Infotech Private Limited And ... vs Indiabulls Commercial Credit Limited on 26 August, 2022
S/L. 27.
August 26, 2022.
MNS.
WPA No. 19353 of 2022
Shalini Infotech Private Limited and others
Vs.
Indiabulls Commercial Credit Limited
Mr. Subhankar Nag,
Mr. Sharanya Chatterjee
... for the petitioners.
Mr. Joy Saha,
Mr. Avishek Guha,
Ms. Akansha Chopra
...for the respondent.
Learned counsel for the petitioners contends that the proposed sale going to be held on August 29, 2022 is vitiated by several illegalities.
It is submitted that the notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "2002 Act"), which is the genesis of the said sale, was bad in law, since the loan scheme which ought to have been extended to the petitioners under the relevant RBI circulars were not made available to the petitioners. 2 It is further submitted that although the ECGLS scheme was given to the petitioners, the petitioners were also compelled to take personal loan.
Learned counsel further argues that the provisions of Rule 8(1), 8(2) and 8(8) of the Security Interest Rules were not complied with by the Tender Issuing Authorities, which vitiates the entire procedure.
It is submitted that the necessary consent, required to be taken from the State for transfer of the property-in-question, was never taken as well.
The learned Senior Advocate appearing for the respondent contends at the outset that the writ petition under Article 226 of the Constitution of India is not maintainable. At best, a challenge under Article 227 of the Constitution could have been preferred.
However, it is contended that an alternative remedy is available before the Debts Recovery Tribunal (DRT), Kolkata, which has been sought to be availed by the petitioner by filing application under Section 17 of the 2002 Act.
Inasmuch as the loans and moratoriums pleaded by the RBI circulars are concerned, the 3 learned Senior Advocate for the respondent submits that admittedly the ECGLS Scheme was given to the petitioners. The "compulsion" of the petitioners to take personal loan is not backed up by sufficient logic. As such, it is submitted that the said argument of the petitioners cannot be accepted.
Moreover, it is contended on behalf of the respondent that in the event the respondent was of the opinion that the property has been undervalued for the purpose of sale, the petitioners ought to have come up with an alternative proposal. Having not done so, such objection does not lie in the mouth of the petitioners.
It is also argued that in view of the procedure undertaken by the respondent being duly sanctioned under Rule 8(1) of the Security Interest Rules inasmuch as no physical possession but merely symbolic possession having been taken, the said objection taken by the petitioners is also not sustainable in law. Inasmuch as the alleged requirement of consent of the State is concerned, it is contended that it is the State which could have raised such objection and not the petitioner.
4
Moreover, by placing reliance on the relevant clause of the deed of assignment of lease in respect of the property, it is submitted on behalf of the respondent that the said agreement merely confers a right of preemption on the demise subject to the condition that all dues of the Government as provided in the affidavit shall be payable and recoverable to the Government either from the transferee or from the LICI or registered Housing Cooperative Society or statutory body, as the case may be. However, no mandatory requirement of consent obtainable from the State is envisaged in the said agreement as such.
That apart, it is argued that even if the petitioner, admittedly, did not comply with the relevant clauses of the agreement, the petitioners cannot be permitted to take advantage of the petitioners' own wrong.
Furthermore, the learned Senior Advocate for the respondent submits that the writ petitioners, in the several paragraphs of the writ petition itself, have specifically admitted the non payment of the loan amount by the petitioners. As such, since the petitioners have not made any effort to repay the loan entirely or even partially, 5 the bona fides of the petitioners in preferring the writ petition ought to be taken with the pinch of salt.
Upon hearing learned counsel for the parties, it transpires that the petitioners have failed to make out a strong enough prima facie case to justify the grant of a restraint order in respect of the proposed sale to be held on August 29, 2022.
However, since an arguable point has been taken out by the petitioners, the respondent is directed to file affidavit-in-opposition within three weeks from date. Reply, if any, shall be filed within one week thereafter.
Liberty to the parties to mention the matter for enlistment before the regular Bench subsequent to expiry of such time-frame.
The outcome of the sale to be held on August 29, 2022 and consequential action, if taken, shall abide by the result of the writ petition.
(Sabyasachi Bhattacharyya, J.)