Calcutta High Court (Appellete Side)
Mrs. Sangita Maity vs Indian Bank & Ors on 14 January, 2022
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
72
14.01.2022
Ct. No.13.
b.das
W.P.A. 21010 of 2021
(Via Video Conference)
Mrs. Sangita Maity
Vs.
Indian Bank & Ors.
Mr. Suddhasatva Banerjee ...for the petitioner
Mr. Om Narayan Rai ...for the Indian Bank.
Mr. Ranjan Kr. Kali
Mr. Debjit Mukherjee
Mr. Mitul Chakraborty
...for respondent Nos.3 to 6.
The writ petitioner, challenges an order of the Debts Recovery Tribunal under Section 17 of the SARFAESI Act, 2002 in SA 171 of 2020 being order dated 15 th November, 2021.
By the impugned order a sale confirmed in favour of the writ petitioner by the authorized officer of the Indian Bank under Section 13(4) read with Rule 8 of the Security Interest Enforcement Rules 2002, was set aside. The DRT has held that the mandatory requirement of Rule 8(6) of the aforesaid Rules of 2002, stipulating 15 days notice, prior to the publication of sale notice was not complied with.
2Counsel for the petitioner argued that his client had participated in the auction sale that was held pursuant to the 7th sale notice. Six earlier notices had failed.
Repeated questions by this Court to Mr. Kali, learned counsel for the borrower whether his client was ready with sums due to the bank since physical possession, have not been answered.
The borrower has also challenged the maintainability of the writ petition on another ground. The impugned sale has been challenged under Section 227 of the Constitution filed by the petitioner is listed before a co- ordinate Bench. Hence the instant petition should not be entertained under Article 226. It is submitted that the petitioners are guilty of forum shopping.
Counsel for the Bank, Mr. Om Narayan Rai, supports the prayers of the writ petitioner/auction purchaser. It is submitted that as many as six attempts have been made by the authorised officer of the bank to effect sale or realize the secured creditors but in vain. The borrower has on the pretext or the other frustrated the recovery process of the bank.
This Court notes the decision of the Supreme Court in SLP No. (c) No.10911 of 2021 being order dated 16 th December, 2021, where it was directed by the Hon'ble Supreme Court that the High Court should entertain matters falling within the jurisdiction of DRT and DRAT's 3 under Article 226 of the Constitution of India as a stop gap measure.
The writ petition is thus entertained and this Court is of the view that the balance of convenience is in favour of staying the order impugned.
Admittedly, the borrower has not been able to repay the bank's dues to a substantial period of time since the year 2015. The account is non-performing asset since 2015. There have been seven attempts to put up the secured assets for sale. If the borrower has not been able to repay the dues of the bank or any part or position thereof despite seven notices of sale and a lapse of 5 years, it is unlikely that he would be able to so repay it 15 day's notice was given before the sale. The provisions of the Rule of 2002 must be given a purposive interpretation in the facts of each case.
As for the second objection, this Court is of the view that a writ petition under Article 226 of the Constitution can be maintained despite a pending application under Article 227. The petitioner has undertaken to with draw the same at the first available opportunity. In those circumstances, the sale cannot be faulted for want of the 15 day's of notice. The impugned judgment and order shall remain stayed. The writ petitioner shall however be restrained from in any way dealing with or disposing of the property in question until disposal of the writ petition. Any construction or addition 4 or alternation made by the writ petitioner on the said property shall abide by the result of the writ petition. Let Affidavit-in-Opposition be filed within two weeks from date. Reply, if any, be filed within one week thereafter.
Let the matter go out of the list with liberty to mention after completion of periods.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Rajasekhar Mantha, J.)