Gauhati High Court
M/S Aye Polymers Pvt. Ltd vs The State Bank Of India And 2 Ors on 2 March, 2020
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/7
GAHC010162052018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6431/2018
1:M/S AYE POLYMERS PVT. LTD.
A COMPANY REGD. UNDER THE COMPANIES ACT, 1956 HAVING ITS REGD.
OFFICE SITUATED IN THE COMPOUND OF N.R.ROLLER FLOUR MILLS,
THHEM MARWET, KHANAPARA, DIST- RI-BHOI, MEGHALAYA,, REP. BY
ONE OF ITS DIRECTOR, SRI SUBRAT JAIN, AGED ABOUT 39 YRS, S/O- LT
BABU LAL JAIN, PRESENTLY A R/O- FLAT NO 12, 1ST FLOOR, ANKUR
GRAND APARTMENTS,, 252-254, POONAMALLEE HIGH ROAD, P.S.
KILPAUK, DIST- CHENNNAI (TAMIL NADU), PIN- 600010, FORMERLY A R/O-
H.NO. 22, 2ND FLOOR, POCKET-1, RAMPRASTHA GREENS, SECTOR-7,
VAISHALI, GHAZIABAD, UTTAR PRADESH, PIN- 201010
VERSUS
1:THE STATE BANK OF INDIA AND 2 ORS.
COMMERCIAL BRANCH, GHY, FORMERLY AT BEE KAY TOWERS, 2ND
FLOOR, GANESHGURI, GHY-6, ANND PRESENTLY, AT SWAGOTA SQUARE,
3RD FLOOR, ABC, G.S.ROAD, GHY- 5, REP. BY THE ASSTT. GENERAL
MANAGER, STATE BANK OF INDIA, COMMERCIAL BRANCH, GHY
2:THE ASSTT. GENERAL MANAGER
STATE BANK OF INDIA
COMMERCIAL BRANCH
GHY
FORMERLY AT BEE KAY TOWERS
2ND FLOOR
GANESHGURI
GHY-6
ANND PRESENTLY
AT SWAGOTA SQUARE
3RD FLOOR
ABC
G.S.ROAD
GHY- 5
Page No.# 2/7
3:N.R.ROLLER FLOUR MILLS
THEM MARVET
KHANAPARA
DIST- RI-BHOI
MEGHLAYA
PIN- 79310
Advocate for the Petitioner : MR. S BANIK
Advocate for the Respondent : MR. S S SARMA (SC, SBI)
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 02-03-2020 Heard Mr. S. Banik, learned counsel for the petitioner and Mr. S.S. Sharma, learned Senior counsel appearing for the respondent State Bank of India.
The petitioner is a private limited company registered under the Companies Act, 1956 and it has its registered office in the premises of respondent no. 3 i.e. N.R. Roller Floor Mills at Khanapara, District - Ri-bhoi, Meghalaya. The petitioner company had set up a unit for manufacture of PVC insulated wires and cables and PVC compounds. The petitioner company had availed financial facilities from the State Bank of India (hereinafter also referred as SBI and/or Bank, for convenience) in the form of term loan, cash credit, etc. When the accounts of the petitioner company with the respondent Bank became irregular and sub-standard, the respondent bank proceeded against the petitioner company under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (the SARFAESI Act, for short) when the petitioner company failed to pay the outstanding dues despite notice, in the year 2007 with the issuance of a notice dated 13.01.2007 under Section 13(2) of the SARFAESI Act.
The petitioner company had filed a writ petition, W.P.(C) No. 1576/2007 assailing the said notice dated 13.01.2007 issued under the SARFAESI Act. As the dispute relating to non-
Page No.# 3/7 payment of dues had been settled between the parties out of the Court and the petitioner company had deposited the agreed amount on 08.04.2009, the writ petition, W.P.(C) No. 1576/2007, was closed by an order dated 20.11.2009 observing so. It was observed therein that the respondent Bank shall release the plants and machineries etc. which were taken into custody, if not already released.
A No-Dues Certificate dated 09.04.2009 was issued by the respondent Bank in favour of the petitioner. After disposal of the writ petition, W.P.(C) No. 1576/2007, the respondent SBI had preferred an application being Misc. Case No. 671/2010, seeking modification to that part of the order dated 20.11.2009 wherein it was observed that the respondent SBI shall release the plants and machineries, etc. which were taken into custody by it, if not already released. It was averred therein that in connection with the financial facilities made available to the petitioner company, the respondent SBI had taken some properties of the petitioner company on hypothecation and mortgage which was equitable mortgage. The mortgaged properties were never taken into physical possession by the respondent Bank. As agreed amount was paid by the petitioner company to the respondent Bank, the petitioner company became free from all liabilities in connection with the loan accounts and, thus, the petitioner company was at liberty to deal with the properties as per their own convenience. In such situation, the respondent Bank had prayed for modification of that part of the observation made in the order dated 20.11.2009 as regards release of the plant and machineries, etc. As it had emerged during the proceedings of Misc. Case No. 671/2010 that the plants and machineries, etc. of the petitioner company were not allowed to be taken out by the landlord i.e. the present respondent no. 3 purportedly in view of a communication dated 01.03.2008 issued by the Assistant General Manager of the respondent Bank to the present respondent no.3, Misc. Case No. 671/2010 was disposed of by an order dated 16.06.2010 observing that the respondent Bank shall issue a communication to the present respondent no. 3 withdrawing its earlier communication dated 01.03.2008 and intimating that there was no impediment from the side of the respondent Bank in allowing the petitioner company to take out its plant and machineries, etc. As plants and machineries, etc. of the petitioner company were kept in the premises of the present respondent no. 3, the respondent Bank by a communication dated 03.07.2010 informed the landlord that the rental matter, if any, that Page No.# 4/7 existed between the petitioner company and the respondent no. 3 landlord may be sorted out between them and the bank was not a party to the same. A reference was made to the order dated 16.06.2010 passed by this Court in Misc. Case No. 671/2010, arising out of the writ petition, W.P.(C) No. 1576/2017.
Thereafter in a subsequent writ petition, W.P.(C) No. 2218/2012, the petitioner company had raised an issue about non-release of the mortgaged property by the respondent bank. The said writ petition was disposed of by a Division Bench of this Court vide an order dated 10.05.2012 observing as under :
"Case of the petitioner is that though the matter was settled the mortgaged property is still not released by the Bank. The writ petitioner may normally be liable to be relegated to the remedy of filing a suit for adjudication of issue of enforcement of an arrangement reached between the parties. However, since it is stated that respondent No.3 may first be asked to take a decision in the matter, without expressing any opinion on merits, this writ petition is disposed of with a direction that respondent No.3 may take a decision on the claim of the petitioner in accordance with law, within three months from the receipt of a copy of this order."
The respondent no. 3, referred in the order dated 10.05.2012, is the Assistant General Manager of the respondent Bank. At a later point of time, alleging non-compliance of the direction contained in the order dated 10.05.2012, the petitioner company had approached this Court by way of Cont.Cas(C) No. 88/2013 and the same was closed by an order dated 12.11.2013 observing as under :
"It is submitted that the bank has taken a decision in the matter as directed, and stated that the bank has also asked the landlord at whose premises machineries are installed to deliver the machineries to the petitioner. But, it appears that the landlord is defiant. Therefore, the petitioner has to pursue his remedy in the appropriate proceeding. Accordingly, the petition is closed."
It is in the year 2018, the petitioner company submitted a representation before the respondent Bank on 16.03.2018 seeking compliance of the direction contained in the order dated 10.05.2012 passed in the writ petition, W.P.(C) No. 2218/2012. Conspicuously, there Page No.# 5/7 was no mention of the order dated 12.11.2013 passed in Cont.Cas(C) No. 88/2013. It transpires that the respondent Bank had issued another No-Dues Certificate on 24.07.2018 reiterating the fact that the petitioner company had repaid the loan amount in full on 08.04.2009.
Thereafter, the petitioner company has approached this Court by this writ petition with a prayer for a direction to the respondent Bank to furnish to the petitioner company the Last Inspection Report prepared by the respondent Bank in respect of the hypothecated plants and machineries, etc. of the petitioner company and stocks of the petitioner for which the No-Dues Certificates dated 09.04.2009 and 24.07.2018 were issued. The respondent Bank has submitted its affidavit and it is submitted on behalf of the respondent Bank that after the issuance of the No-Dues Certificate on 08.04.2009, the loan account of the petitioner company with the respondent Bank stood closed as the last installment as per compromised amount stood paid. Thereafter, the respondent Bank kept the papers relating to the loan accounts of the petitioner company for the required period of time as per the guidelines of the respondent Bank as regards preservation of old records. As it is a procedure of the respondent Bank to destroy the papers periodically, the papers pertaining to the petitioner company were destroyed in due course of time. It is averred in the affidavit that it was at the request of the petitioner company the respondent Bank had issued the No-Dues Certificate dated 24.07.2018 only on the basis of the documents made available by the petitioner company to the respondent Bank. The said averment of the respondent Bank has not been traversed in any manner by the petitioner company by filing any affidavit-in-reply. As the loan accounts of the petitioner company with the respondent Bank were settled as far back as on 08.04.2009 with the issuance of the No-Dues Certificate on 09.04.2009 and the proceedings between the petitioner company and the respondent Bank stood closed in the year 2013, as reflected from the order dated 12.11.2013 passed in Cont.Cas(C) No. 88/2013, there was no reason for the respondent Bank to keep the papers relating to the loan accounts of the petitioner company.
I find sufficient force in the submission advanced on behalf of the respondent Bank. In the order dated 12.11.2013, the Division Bench of this Court had clearly observed that as regards the issue regarding release of plant and machineries, etc. belonging to the petitioner Page No.# 6/7 company installed in the premises of the present respondent no. 3 the petitioner company had to pursue its remedy in appropriate proceedings as the landlord i.e. the present respondent no. 3 was found defiant. It was observed therein that the respondent Bank had taken a decision in the matter as directed by the Court and the respondent Bank had already asked the landlord to deliver the plants and machineries, etc. belonging to the petitioner company to the petitioner company. It is not discernible from the pleadings in the writ petition what steps the petitioner company had taken after passing of the order dated 12.11.2013 till the submission of the representation dated 16.03.2018. Thus, it is evident that during the period in the interregnum i.e. from 12.11.2013 to 16.03.2018, no steps had been taken by the petitioner company to initiate any appropriate proceeding against the present respondent no. 3 with regard to the plants and machineries, etc. alleged to be installed in the premises of the present respondent no. 3. Nothing has been brought on record by the petitioner company even to show that there was any exchange of communication between the petitioner company and the respondent Bank in that regard. After a loan account was closed as far back as on 08.04.2009 with the issuance of a No-Dues Certificate on 09.04.2009 and after the observation made in the order dated 12.11.2013 in Cont.Cas(C) No. 88/2013 reserving the liberty to the petitioner company to pursue its remedy in appropriate proceeding against the landlord, there was no reason available for the respondent Bank to keep any document pertaining to the loan accounts of the petitioner company preserved in anticipation that the petitioner company could approach it at a later point of time after elapse of a period of more than 4 (four) years, seeking copies of any document pertaining to its loan accounts. The respondent Bank has stated to have preserved the documents pertaining to the loan accounts of the petitioner company for the required period of time as per its guidelines. As such, this Court finds no merit in the writ petition, preferred in the year 2018, wherein a direction has been sought for by the petitioner company to the respondent Bank to furnish the petitioner company a document in respect of an inspection as regards its plants and machineries, etc. purportedly stated to have been carried out prior to 09.04.2009. Resultantly, in the light of the discussion made above, this writ petition is not entertained and the same stands closed. There shall, however, be no order as to cost.
JUDGE Page No.# 7/7 Comparing Assistant