Madhya Pradesh High Court
Pramod Kumar Jain vs Satpura Kshetriya Gramin Bank on 28 September, 2010
W.P.No. 8646 / 2010 (Pramod Kumar Jain & anr. ..v. ..Satpura Kshetriya Gramin Bank & ors.) 28-9-2010 Shri Anil Kumar Jain, learned counsel for the petitioners. Shri A.C.Thakur, learned counsel for the respondents No. 1 and 2.
The petitioners have filed this petition being aggrieved by the proceedings initiated by the respondents against them under the provisions of Securitization and Reconstruction of the Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'SARFAESI Act'). In the instant petition, the petitioners have challenged the proceedings for execution of the order passed by the respondent No. 3, Collector and taken up by the respondent No.4, Tahsildar, Pipariya, District Hoshangabad.
The learned counsel for the petitioners submits that the proceedings initiated against the petitioners are contrary to law and the procedure prescribed therein and in such circumstances, the impugned order be quashed. It is stated that the respondent No. 4 has no power or authority to take up proceedings by way of entertaining the application. It is submitted that the petitioners have negotiated with the President of the respondent-bank who has agreed to permit the petitioners to sell one of the mortgaged properties and repay the amount and in such circumstances, the impugned proceedings initiated by the respondents be quashed.
The learned counsel appearing for the respondents No. 1 and 2 has filed an application (I.A.No. 9520/2010) for dismissal of the petition wherein he has brought on record the fact that the present petition is the fourth approach of the petitioners before this Court against the proceedings for recovery initiated by the respondent-bank under the SARFAESI Act. It is stated that the petitioners had initially filed W.P.No. 15859/2007 assailing the notice issued to the petitioners under Section 13(2) of the SARFAESI Act, which was ultimately dismissed by order dated 7-3-2008 observing therein that the appropriate remedy available to the petitioners was to approach the Debt Recovery Tribunal. Thereafter, the petitioners had filed another W.P.No. 7243/2008 against the auction notice published by the respondent-bank in respect of the mortgaged property which also suffered dismissal on account of non- prosecution, though it is stated by the learned counsel for the petitioners that an M.C.C. was filed for restoration of the aforesaid petition but till now no order has been passed therein. In the third instance, the petitioners had filed W.P.No. 6374/2009 against the order passed by the Collector under Section 14 of the SARFAESI Act which was disposed of by order dated 8-7-2009 on an undertaking given by the petitioners to the effect that they would vacate the premises within a period of six months and in case, they fail to do so, the respondent/authorities would be at liberty to initiate proceedings for taking over possession of the mortgaged property. The aforesaid order dated 8-7-2009 has been passed in the following terms :-
"08.07.2009 Shri Sanjay Agrawal learned counsel for the petitioners. Shri A. C. Thakur learned counsel for respondent nos.1 & 2.
Though the petitioners have filed this petition raising several legal and factual issues challenging the order passed by respondent no.3 under section 14(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, whereby possession of the petitioners' property has been directed to be taken over, after arguing at length and after hearing the submissions of the learned counsel appearing for respondent nos.1 & 2 Bank, the petitioners who are present in the Court personally have restricted the relief prayed by them, to seeking time of six months to vacate the premises and till that time to stay the order passed by respondent no.3.
The prayer is seriously and vehemently opposed by the learned counsel for respondent nos.1 & 2 who submits that the petitioners are in the habit of giving undertaking and thereafter not sticking to them and have been enjoying possession of the property inspite of interim orders against them passed by this Court in W.P No.7243/2008 which petition filed by the petitioners is also pending adjudication.
Having heard the learned counsel appearing for the parties at length, the petition is disposed of by recording the aforesaid undertaking on the statement of the petitioners that they undertake to vacate the property given to them in supurdnama vide Annexure P-6 by 31st of December 2009; that in case the petitioners fail to do so, the respondent authorities would be at liberty to initiate proceedings for taking over possession of the property immediately thereafter; that in case the petitioners fail to do so, their act would amount to breach of the undertaking given before this Court and would make them liable for initiation of contempt proceedings against them by this Court in accordance with law.
It is clarified that the aforesaid undertaking is given by the petitioners in respect of the property which has been given to them on supurdnama on 15.5.2008. If any property mentioned in the supurdnama has not yet been sold or auctioned by the respondents and in case the petitioners deposit or repay the amount of loan in respect of that property during the aforementioned period, the respondent authorities shall consider the fact of repayment and act in accordance with law.
The petition is, accordingly, disposed of by recording the aforesaid undertaking of the petitioners.
C.C as per rules today."
It is stated by the learned counsel for the respondent-bank that in spite of the aforesaid three orders and the undertaking given by the petitioners they have neither vacated the premises nor repaid the loan and have again assailed the auction proceedings under Section 14 of the SARFAESI Act and in such circumstances, the act of the petitioners amounts to abuse of the process of law and in such circumstances, the petition filed by them be dismissed.
I have heard the learned counsel for the parties at length and gone through the record.
From a perusal of the aforesaid orders passed by this Court in W.P.Nos. 15859/2007, 7243/2008 and 6374/2009 it is clear that the petitioners had themselves withdrawn their relief and restricted the same by seeking time of six months for vacating the premises and even after giving an undertaking to that effect in the recovery proceedings before this Court, they have not acted in accordance with the same and filed the present petition. From a perusal of the judgment rendered by the Supreme Court in the case of United Bank of India v. Satyawati Tondon and others (Civil Appeal No. 5990 of 2010), dated 26-7-2010 it is clear that in proceedings for recovery and possession taken under the provisions of the SARFAESI Act, the appropriate remedy available to the petitioners is to approach the Debt Recovery Tribunal. It is also clear from a perusal of the record that the proceedings under Section 14 of the SARFAESI Act have in fact been taken up against the petitioners by the Collector and for the purposes of executing the same the Tahsildar has been directed to proceeded further. In such circumstances, the contention of the petitioners that the Tahsildar is not competent to take up recovery proceedings is factually incorrect as is apparent from the order dated 23-6-2009 passed by the Collector, Hoshangabad, in the proceedings under Section 14 of the SARFAESI Act whereby the Tahsildar has been directed to take over possession of the property and auction the same.
In view of the aforesaid facts and circumstances, specifically the law laid down by the Supreme Court in the case of Satyawati Tondon (supra), specifically, in view of the fact that the petitioners have approached this Court by filing petitions on three occasions and even after giving an undertaking to repay the amount of loan or vacate the premises they have failed to do so, the petition filed by the petitioners deserves to be dismissed.
In the circumstances, keeping the law laid down by the Supreme Court in the case of Satyawati Tondon (supra), in mind, wherein it has been held that the High Courts should not exercise its jurisdiction under Article 226 of the Constitution to entertain proceedings initiated under the SARFAESI Act as the appropriate remedy available to the petitioner is to approach the Debt Recovery Tribunal. I do not find any merit in the petition, therefore, the petition filed by the petitioners is hereby dismissed.
It is, however, made clear that the order passed by this Court in the present petition would have no bearing on the proceedings initiated by the petitioners regarding under valuation and auctioning of the petitioners property by the respondents in collusion with the auction purchaser in respect of which the petitioners have already filed a complaint under Section 200 of the Cr.P.C. which is pending before the competent Court. It is also made clear that dismissal of the petition would not preclude the petitioner from negotiating the respondent-bank regarding sale depository as has been stated by the petitioner, even otherwise, the petitioner can bring the aforesaid facts to the notice of the Debt Recovery Tribunal which shall duly apply its mind to the same.
With the aforesaid observations. the petition filed by the petitioners stands dismissed.
C.C. as per rules.
(R.S.Jha) Judge mct I