Calcutta High Court (Appellete Side)
M/S. Debitech Fabtech Private Ltd. & Anr vs Baidyabati Seoraphully Co-Operative ... on 24 July, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
1
32
24.07.2017
W.P. No. 33799(W) of 2014
KC
M/s. Debitech Fabtech Private Ltd. & Anr.
Vs.
Baidyabati Seoraphully Co-Operative Bank Ltd. & Ors.
Mr. Sudip Sanyal
Mr. Jayanta Kumar Sanyal
Mr. Sudipta Dasgupta
Mr. Anath Nath Naskar
Mr. Firdous Samim.
... for the petitioners.
Mr. P. C. Das.
... for the respondent/Bank.
The petitioner assails an action of a co-operative bank in invoking the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002).
Learned advocate for the petitioner submits that, a co-operative society carrying on bank business cannot invoke the Act of 2002. In support of such contention, he relies upon a judgement and order dated June 23, 2011 passed in MAT 576 of 2011 (Utsa Hazra & Anr. Vs. The State of West Bengal & Ors.) and AIR 2007 SC 1584 (Greater 2 Bombay Co-operative Bank Ltd. Vs. United Yarn Tex (P) Ltd.). He submits that, the action of the bank being wholly without jurisdiction, the bank should be restrained from taking further steps.
Learned advocate appearing for the co-operative bank relies upon an unreported decision of this Court rendered in WP 26885(W) of 2015 (Smt. Anjana Vs. The A.P. Vardhaman (Mahila) Co-operative Urban Bank Limited & Ors.) as also an unreported Division Bench Judgment of the Andhra Pradesh High Court rendered in W.P. 7769 of 2015 (Mr. Inder Raj Agarwal Vs. Union of India) in support of the contention that, a co-operative bank can invoke the provisions of the Act of 2002. He relies upon Sections 56(1)(a) and 56(cc) of the Banking Regulation Act, 1949. According to him, the Reserve Bank of India is the only authority which can decide such an issue.
With respect, the Courts are to decide the issues raised before it. Prima facie, it appears that the co-operative bank is not entitled to invoke the Act of 2002. There is a 3 Division Bench judgment to such effect as noted above.
Learned advocate appearing for the respondents seeks direction for filing affidavits.
Let affidavit-in-opposition be filed within two weeks; reply thereto, if any, be filed two weeks thereafter. Matter to appear in the list four weeks hence.
Since the petitioner has made out a prima facie case and the balance of convenience and inconvenience lies in favour of the petitioner, the bank will not take any step against the petitioner under the Act of 2002 in any manner whatsoever until further orders of this Court.
At this stage, learned advocate for the petitioner submits that, the bank has already taken actual physical possession of the property. The bank will not deal with that property in any manner whatsoever. It will take all measures for the purpose of protection and preservation of the same at its own cost.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite 4 formalities.
(Debangsu Basak, J.)