Calcutta High Court (Appellete Side)
Rabindranath Sarkar vs The State Of West Bengal And Others on 7 March, 2024
D/L.25.
March 7, 2024.
MNS.
WPA No. 3412 of 2024
Rabindranath Sarkar
Vs.
The State of West Bengal and others
Mr. Satrajit Sinha Roy,
Mr. Tapan Roy
... for the petitioner.
Mr. Asish Kumar Guha,
Mr. Anirban Dutta
...for the State.
Mr. Pankaj Kumar Mukherjee
...for the Punjab National Bank.
1. Supplementary affidavit along with affidavit-of-
service filed in court today be kept on record.
2. Learned counsel for the petitioner contends
that the petitioner is a third party staking claim
to a property from which he has been ousted
under the direction of the concerned
Magistrate under Section 14 of the
Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest
Act, 2002 (SARFAESI Act).
3. Learned counsel for the petitioner argues that
fraud was practiced on the Magistrate
inasmuch as the previous status quo order
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obtained by the petitioner from a Civil Court
was suppressed from the Magistrate.
4. As such, it is argued that the said fraudulent
act vitiates the order of the Magistrate.
5. The petitioner has been ousted, it is
submitted, but his utensils and other materials
are still lying in the property.
6. Learned counsel for the petitioner places
reliance on the judgment of Bank of Rajasthan
Limited Vs. VCK Shares and Stock Broking
Services Limited reported at (2023) 1 SCC 1
as well as Vidur Impex & Traders Pvt. Ltd. and
others Vs. Tosh Apartments reported at
(2012) 8 SCC 384.
7. It is argued that, as such, judicial propriety
demands that the court should maintain its
decorum and dignity and should not pass any
order, which may well conflict with each other.
Moreover, the borrower is entitled to file a civil
suit as per the judgment of Bank of Rajasthan
(supra).
8. Such contentions are controverted by learned
counsel for the Bank, who also submits that
the petitioner has in fact preferred a challenge
under Section 17 of the SARFAESI Act before
the Debts Recovery Tribunal, which is now
pending. It is further argued that the
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judgements cited by the petitioner are not
applicable in the facts of the present case.
9. There is substance in the contention of the
bank.
10. Inasmuch as the judgement of Bank of
Rajasthan (Supra) is concerned, the same
was rendered in the context of the Recovery
of Debts and Bankruptcy Act, 1993 (1993
Act). The Supreme Court held that Section 17
of the said Act bars the jurisdiction of the civil
court only in respect of applications filed by
banks and financial institutions and not suits
filed by the borrower.
11. However, in stark contrast to the said
provision, Section 17 of the SARFAESI Act,
which is the statute under which the present
order under challenge has been passed,
provides that any person (including borrower)
aggrieved by any of the measures under
Section 13(4) of the SARFAESI Act may
approach the Debts Recovery Tribunal with
his grievance.
12. The specific mention of the borrower as a
contender in an application under Section 17
of the SARFAESI Act clearly shows that in
contradistinction with the 1993 Act, the
SARFAESI Act provides a channel of
redressing grievance, which has been invoked
4
by the petitioner by filing an application under
Section 17 of the SARFAESI Act.
13. Thus, the Bank of Rajasthan case does not
come to the aid of the petitioner in any
manner.
14. Insofar as the Vidur Impex (supra) is
concerned, there is no question of judicial
propriety involved here, since there is no
conflict of decision in the present case.
15. First, the suit pending in the Civil Court, where
the status quo order was passed at the
instance of the petitioner, is between the
petitioner and another individual, where the
bank is not a party at all. Thus, whatever
order is passed in the said proceeding does
not in any manner operate against or bind the
bank. Even if the petitioner informed the bank
about the said order as well as the Magistrate
while the hearing of the application under
Section 14 of the SARFAESI Act was going
on, the same could not have any impact on
the proceeding under Section 14 of the
SARFAESI Act. The Magistrate functions
under Section 14 of the SARFAESI Act in an
administrative capacity and does not have the
power to make any adjudication.
16. Thus, there is no question of violation of
judicial propriety in the present case at all.
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17. In any event, the order of status quo cannot
bind the bank or the tribunal.
18. As such, the Vidur Impex principle is also not
applicable to the present case.
19. In fact, the filing of the present application by
the petitioner is mala fide inasmuch as the
petitioner seeks to protract the proceeding
further. Having himself approached before
the Debts Recovery Tribunal under Section 17
of the SARFAESI Act, the petitioner ought not
to have invoked the writ jurisdiction of this
Court for the self-same relief.
20. If the petitioner is aggrieved by his utensils
and/or other articles lying within the property,
the remedy lies under the SARFAESI Act itself
in the proceeding pending before the tribunal.
21. Thus, WPA No. 3412 of 2024 is dismissed
with liberty to the petitioner, however, to
proceed with his challenge before the Tribunal
in the pending proceeding of the petitioner
under Section 17 of the SARFAESI Act.
22. For the deliberate attempt of the petitioner to
protract the litigation and abuse of process of
court, but keeping in view his financial
stringency, the petitioner shall pay a token
cost of Rs.100/- to the respondent-bank within
a fortnight from date.
23. There will be no order as to costs. 6
24. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)