Gauhati High Court
Page No.# 1/7 vs State Of Assam And 3 Ors on 12 February, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/7
GAHC010005212025
2025:GAU-AS:2035
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/164/2025
UCO BANK AND ANR
A BANKING COMPANY AND CORPORATE CONSTITUTED UNDER THE
BANKING COMPANIES (ACQUISITION AND TRANSFER OF UNDERTAKING)
ACT, 1971, HAVING ITS HEAD OFFICE AT 10, BTM SARANI BRABOURNE
ROAD, KOLKATA-1, DOING ITS BANKING BUSINESS THROUGHOUT INDIA
THROUGH DIVERSE REGIONAL AND BRANCH AND THE GUWAHATI MAIN
BRANCH IS UCO BANK, H.B. ROAD, FANCY BAZAR, GUWAHATI, PIN-
781001, REPRESENTED HEREIN BY ITS AUTHORIZED CHIEF MANAGER.
2: THE CHIEF MANAGER
UCO BANK
ADDRESS- H.B. ROAD
FANCY BAZAR
GUWAHATI
PIN- 781001
DIST. KAMRUP(M)
ASSA
VERSUS
STATE OF ASSAM AND 3 ORS
REPRESENTED HEREIN BY ITS COMMISSIONER AND SECRETARY,
GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF ASSAM,
ADDRESS-I, BLOCK, THIRD FLOOR, JANATA BHAWAN, DISPUR,
GUWAHATI, PIN- 781006, DIST. KAMRUP(M), ASSAM
2:THE DISTRICT COMMISSIONER
ADDRESS- OFFICE OF THE DISTRICT COMMISSIONER
LICHUBAGAN
HENGRABARI
GUWAHATI
PIN- 781036
DIST. KAMRUP(M)
Page No.# 2/7
ASSAM
3:THE COMMISSIONERATE OF POLICE
ADDRESS- M.G. ROAD
PANBAZAR
GUWAHATI
PIN- 781001
DIST. KAMRUP(M)
ASSAM
4:RAMEN DEKA
S/O- LATE RAMESH CHANDRA DEKA
ADDRESS- HOUSE NO. 1
CHILARAI NAGAR PATH (ADJACENT TO REGIONAL TELECOM TRAINING
CENTRE)
G.S. ROAD
BHANGAGARH
GUWAHATI-781005
DIST. KAMRUP(M)
ASSA
Advocate for the Petitioner : MR. S CHAMARIA, MR A N SARMAH,MR M M ZAMAN
Advocate for the Respondent : GA, ASSAM, MS N B KAYASTHA(R-4),MR. R DUBEY(R-4),MR.
A N I HUSSAIN (R-4),MS. A B KAYASTHA(R-4)
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 12-02-2025 Heard Mr. S. Chamaria, learned counsel for the petitioners; Mr. N. Goswami, learned Junior Government Advocate, Assam for the respondent nos. 2 & 3; and Mr. R. Dubey, learned counsel appearing on behalf of the respondent no. 4.
2. The petitioner no. 1 is a nationalized bank ['the petitioner Bank', for short] and the petitioner no. 2 is the Authorized Officer of the petitioner Bank, who is Page No.# 3/7 authorized to take steps in respect of proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ['the SARFAESI Act', for short].
3. In this writ petition, the petitioners have stated that proceedings have been initiated against the respondent no. 4 under the SARFAESI Act due to defaults committed by the respondent no. 4 as the borrower of the petitioner Bank in respect of financial facilities extended to the respondent no. 4, after declaring the loan account of the respondent no. 4-borrower as non-performing asset [NPA]. The petitioners have stated that one of the landed properties of the respondent no. 4 in respect of which equitable mortgage has been created is '3.36 are of land under Dag no. 409 & K.P. Patta no. 45 at Sahar - Guwahati, 4th part, Mouza - Ulubari, Guwahati and a 6-storied building' in the name of the respondent no. 4 valued at Rs. 3 crore on 01.09.2007, as per the Sanction Letter dated 01.09.2007 for a loan amount of Rs. 15,83,000/- on interest rate @ 14.50% [Floating] with repayment period of 84 months.
4. The petitioners have stated that an application was made before the District Magistrate, Kamrup [Metro] [the respondent no. 2] on 11.12.2024 with the request to take over physical possession of the left-over landed property based on a previous Order dated 12.04.2024 passed by the respondent no. 2 under Memo no. E-110775/511. The application dated 11.12.2024 was received at the office of the respondent no. 2 on 16.12.2024. It is stated that the application is under Section 14 of the SARFAESI Act. In the said application, the description of the landed property in respect of which the physical possession is sought for is as under :-
Page No.# 4/7 Equitable Mortgage of an area of land measuring 3.36 are along with Basement + Ground + 5 story building construction thereon styled as Hotel RIALTO over the plot under Dag no. 409, KP Patta no.-45, situated at Revenue village - Sahar Guwahati, Part - IV under Mouza - Ulubari at Panbazar, P.S.- Panbazar within Sub-Registrar's Office Guwahati, Dist- Kamrup [M], Assam standing in the name of Mr. Ramen Deka vide Deed No. 9269/2003 dt 05/11/2003 and corresponding Jamabandi dated 07/02/2017.
5. It is mentioned that when physical possession of the landed property was taken over on 10.07.2024, all the rooms, kitchen and lobby of the RCC Building, wherefrom a hotel named Hotel Rialto was run, had been sealed, except the sixth floor of the RCC Building. It is mentioned that the sixth floor was not sealed at that time at the request of the borrower.
6. It is submitted by the learned counsel for the petitioners that the application dated 11.12.2024 has been submitted for taking physical possession of the sixth floor of the RCC Building.
7. It may be stated that the petitioner Bank, on an earlier occasion on 30.03.2024, preferred an application under Section 14 of the SARFAESI Act before the District Magistrate [the respondent no. 2] to take physical possession of secured assets, indicated in the said application. On the basis of the said application dated 30.03.2024, the respondent no. 2 in exercise of the power under Section 14 of the SARFAESI Act passed an Order under Memo no. E- 110775/51 dated 12.04.2024 in respect of the following Schedule or Properties :
Page No.# 5/7 Equitable mortgage of an area of land measuring 3.36 are along with a Basement+Ground+5 story RCC building construction thereon styled as Hotel RIALTO over the plot under Dag No. 409, K.P. Patta no. 45, situated at Revenue Village - Sahar Guwahati Part-IV under Mouza - Ulubari at Panbazar, P.S.-Panbazar within Sub-Registrar's Office Guwahati, District-Kamrup [M], Assam, standing in the name of Mr. Ramen Deka vide Deed no. 9269/2003 dated 05.11.2003 and corresponding Jamabandi dated 07.02.2017.
Bounded by: North : Sushil Panjabi, South : Road, East : Hotel President Kalikesh Bhattacharyya, West : Binod Bihari Dasgupta.
8. Pursuant to the Order dated 12.04.2024, physical possession of the afore- mentioned Schedule or Properties as secured assets were taken over on 10.07.2024 by preparing an Inventory in the form of Appendix-II, as required under Rule 4[2] of the Security Interest [Enforcement] Rules, 2002.
9. Mr. Dubey, learned counsel appearing for respondent no. 4 has submitted that the sixth floor of the RCC building under reference is not under any kind of mortgage with the petitioner Bank and no litigation is pending in respect of the said sixth floor of the property before the Civil Court.
10. On perusal of the application dated 30.03.2024, the Order of the District Magistrate, Kamrup [M] [the respondent no. 2] dated 12.04.2024; and the Inventory prepared on 10.07.2024, it transpires that the landed property [secured assets] in respect of which physical possession was taken over, was in conformity with the application dated 30.03.2024 submitted by the petitioner Bank and the Order dated 12.04.2024 of the respondent no. 2. Neither in the application dated 30.03.2024 nor in the Order dated 12.04.2024 nor in the Inventory dated 10.07.2024, there was any mention of the sixth floor of the RCC Page No.# 6/7 building standing over the plot of land measuring 3.36 are, the physical possession of which was sought for or was ordered.
11. By the application dated 11.12.2024, the petitioner Bank has sought for an order from the respondent no. 2 under Section 14 of the SARFAESI Act to take over physical possession of the left-over property, based on the Order dated 12.04.2024 indicating that on 10.07.2024, physical possession of the floors beyond the fifth floor was not taken over.
12. A copy of the notice issued by the petitioner Bank under Section 13[2] of the SARFAESI Act is found annexed as Annexure-2 to the writ petition. In the Schedule to the said notice, the petitioner Bank had informed the respondent no. 4-borrower that the petitioner Bank had inter alia taken physical possession of an area of land measuring 3.36 are along with a basement+Ground+5 story RCC building constructed thereon, styled as Hotel Rialto, that is, over the plot of land mentioned in paragraph 4 above.
13. The petitioners have presently approached this Court by the instant writ petition seeking inter-alia a direction to the respondent no. 2 to pass an order under Section 14 of the SARFAESI Act on the premise that an application dated 11.12.2024 for taking physical possession of the left-over landed property of the respondent no. 4-borrower, that is, the sixth floor of the RCC building has not been given consideration.
14. When the petitioner Bank itself did not indicate the floors beyond 5 th floor in its notice under Section 13[2] of the SARFAESI Act, this Court is not Page No.# 7/7 persuaded to pass any direction to the respondent no. 2 to pass an order under Section 14 of the SARFAESI Act based on the application of the petitioner Bank dated 11.12.2024. It is well settled that the powers exercisable by the District Magistrate under the SARFAESI Act are ministerial acts and do not involve any adjudicatory process.
15. As the petitioner Bank appears to have not even taken symbolic possession of the said part of the sixth floor of the RCC building under reference at any earlier point of time, it is open for the petitioner Bank to take necessary steps in accordance with law before the appropriate forum. Accordingly, this writ petition is not entertained. It is, however, open to the petitioner Bank to avail appropriate remedy permissible under the law if it intends to take physical possession of the purportedly left-over mortgaged landed property, that is, the sixth floor as mentioned in its application dated 11.12.2024 before the appropriate forum.
JUDGE Comparing Assistant