Patna High Court
M/S Mahendra Beverages & Foods Pvt. & Ors vs Bank Of India & Ors on 19 July, 2018
Equivalent citations: AIR 2018 PATNA 184, (2019) 1 PAT LJR 139 (2019) 2 BANKCAS 87, (2019) 2 BANKCAS 87
Author: Nilu Agrawal
Bench: Nilu Agrawal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2289 of 2016
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1. M/s Mahendra Beverages & Foods Pvt. through its Director Rajesh Kumar
Sinha, Son of Late Mahendra Prasad Singh, Resident of Dalluchak Khagaul,
P.O. - Khagaul, P.S. - Khagaul, District - Patna - 801105.
2. Ambrish Chandra Singh, Son of Sri Kumar Ambrish Chandra Singh,
3. Nilotpala Singh, Wife of Ambrish Chanadra Singh, Both 3 and 4 residents o f
Lalkothi, Near Munger Railway Station, P.O. Head Post Office, P.S. - Kotwali,
District - Munger.
4. Sunaina Devi, Wife of Sri Krishna Singh, Resident of Village - Chamrichak,
P.O. - Jasmaout, P.S. - Shalpur, District - Patna.
.... .... Petitioner/s
Versus
1. Bank of India, Zonal Office, Patna Zone, 1st Floor, Chanakya Palace, R- Block,
Patna - 800 001.
2. The Chief Manager, Bank of India, Zonal office, Patna Zone, 1st Floor,
Chanakya Palace, R- Block, patna - 800 001.
3. The Authorised Officer, Bank of India, Zonal Office, Patna Zone, 1st Floor,
Chanakya Palace, R- Block, Patna - 800 001. null null
4. The Manager, Bank of India, Kankarbagh Branch, Patna.
5. Pawan Kumar S/o Sri Raja Babu R/o H.N. 80, Chandpur, Bela, Mithapur , PO -
GPO, PS Jakkanpur, Dist Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Jai Vardhan Narayan
For the Respondent/s : Mr.
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CORAM: HONOURABLE JUSTICE SMT. NILU AGRAWAL
ORAL JUDGMENT
Date: 19-07-2018
Heard learned counsel for the petitioners, learned counsel for
Patna High Court CWJC No.2289 of 2016 dt.19-07-2018
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the respondent Bank and learned counsel for the respondent no. 5 who is
auction purchaser.
Two interlocutory applications have been filed by the
petitioners being I.A. No. 7295 of 2016 and I.A. No. 7296 of 2016. I.A. No.
7296 of 2016 has been filed by the Managing Director Rajesh Kumar Sinha
for impleadment in his individual capacity as petitioner no. 5. I.A. No. 7295
of 2016 has been filed by one Shikha Sinha who is one of the guarantors
seeks impleadment as petitioner no. 6.
Both interlocutory applications (I.A. No. 7295 of 2016 and I.A.
No. 7296 of 2016) are allowed.
The facts of the case is that on 20.02.2008 vide Annexure-1
loan was sanctioned to the petitioners by the Bank being cash credit of 15
lacs and term loan of one crore, 10 lacs. The respondent Bank of India issued
E-auction notice dated 29.04.2015 under the Securitization and Reconstruction
of Financial Assets and Enforcement of Security Interest Act, 2002
(hereinafter referred to as the 'SARFAESI Act') dated 15.12.2015 for auction
of the property and realization of the loan amount when account turned NPA.
Petitioners have challenged the E-Auction Notice by which the
auction of the property mortgaged with the respondent Bank of India ha d
been fixed on 21.01.2016. The petitioners have also prayed for returning of
all their pledged documents on the ground that all the payments have been
made in lieu of loan taken which the petitioners have annexed by way of
supplementary affidavit. Details of the chart is as per the second
supplementary affidavit in paragraph-5. The total outstanding dues as per
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the SARFAESI notice dated 29.01.2015 has been satisfied and out of the
outstanding dues of Rs. 92,63,841.48/-, petitioners have deposited Rs.
93,00,000/-. Hence, prayer is that 3 rd party right created by the Bank by
issuing a sale notice to the respondent no. 5 should be quashed and the
petitioners be given possession of the pledged documents. Learned counsel
for the petitioners relies on a judgment passed in C.W.J.C. No. 17717 of
2010, decided on 21.01.2016 stating therein that this Co urt had allowed the
petitioner to avail settlement and consideration under 'OTS Scheme, 2009'
as deposit by the auction purchaser does not take away the right of the
petitioner nor completes the sale transaction. The petitioners thus contend
that having satisfied the entire loan amount, the sale of the property of the
petitioners to 3rd party no longer survives and the petitioners are entitled to
return of their documents and the physical possession of the said property.
He also submits that a memorandum of outstanding was executed between
the petitioners on the one hand and one Ambrish Chandra Singh of taking
over the company along with the share capital which is Annexure-5 and a
notice in this regard was given to the Bank but the respondent Bank has not
taken any notice to it
Learned counsel appearing on behalf of the Bank, however,
submits that the petitioners had defaulted in payment of loan amount and
the account became N.P.A. as such, SARFAESI Notice under Section 13
(4) was issued to the petitioners on 29.01.2015 showing outstanding dues of
Rs. 92,63,841.48/- upto the date of notice and now the sale to private
respondent no. 5 has been confirmed and sale certificate issued in his
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favour.
Learned counsel for the private respondent no. 5-auction
purchaser, however, submits that the auction purchaser was the highest
bidder and now the sale certificate has already been drawn in his favour
which is Annexure E to his counter affidavit dated 04.02.2016. He submits
that even otherwise, this writ application is not maintainable as per Section
17 of the SARFAESI Act, 2002, the petitioners could have vented their
grievance before the Debt Recovery Tribunal but instead the petitioners
have straightaway moved this Court in writ jurisdiction and has obtained an
order of status quo which according to him should not have been granted in
view of the law laid down by the Apex Court in the case of Optiemus
Infracom Ltd. Vs. Ishan Systems (p) Ltd. as reported in (2012) 8 SCC
572 relevant is paragraph-6, 7 and 10. He submits that now since the
certificate of possession has already been granted and the respondent-
auction purchaser has deposited the entire consideration, this writ ought to
be dismissed.
Heard the parties.
The petitioners had availed loan facilities from the respondent
Bank and when the account became over due and NPA, the Bank
proceeded under the SARFAESI Act and the notice under Section 13 (4)
was issued on 29.01.2015 showing the outstanding dues of Rs.
92,63,841.48/- as on date of notice. Petitioners had failed to make payment.
The respondent Bank sold the said mortgaged property through E-Auction
and date of sale was fixed on 21.01.2016 wherein the auction purchaser was
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the highest bidder and a possession notice was issued on 05.11.2015 which
was circulated in the newspaper which is Annexure-B of the counter
affidavit of the respondent no. 5. Thereafter, a possession notice was given
to the respondent no. 5 which is dated 04.02.2016.
From perusal of the second supplementary affidavit the
petitioners have given a chart of payment which is as under:
Date Amount
26.03.2015Rs. 3,00,000.00/-
26.03.2015 Rs. 2,00,000.00/-
11.05.2015 Rs. 3,50,000.00/-
15.05.2015 Rs. 1,50,000.00/-
04.06.2015 Rs. 2,00,000.00/-
26.05.2015 Rs. 3,00,000.00/-
03.08.2015 Rs. 1,00,000.00/-
04.09.2015 Rs. 50,000.00/-
19.10.2015 Rs. 50,000.00/-
01.03.2016 Rs. 10,00,000.00/-
21.04.2016 Rs. 66,00,000.00/-
Petitioners have deposited Rs. 10,00,000/- on 01.03.2016 and Rs. 66,00,000/- on 21.04.2016. The outstanding amount was Rs. 92,63,841.48. The sale certificate is dated 04.02.2016. The petitioners have deposited 76,00,000/- after issuance of sale certificate to the respondent no. 5 after the sale being complete and possession being handed over to the respondent no. 5.
Under the facts and circumstances, since the 3 rd party right has Patna High Court CWJC No.2289 of 2016 dt.19-07-2018 6/6 been created, the petitioners deposited the said amount after sale certificate accruing on behalf of respondent no. 5, I find no merit in this writ application.
Writ application is, accordingly, dismissed.
(Nilu Agrawal, J) Devendra/-
AFR/NAFR AFR CAV DATE NA Uploading Date 24.07.2018 Transmission NA Date