Madhya Pradesh High Court
Sitashree Food Products Ltd. vs State Bank Of India on 16 March, 2020
Author: S.C.Sharma
Bench: S.C.Sharma
1
THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.6369 of 2020
(Sitashree Food Products Ltd. vs. State Bank of India & others)
Indore, dated : 16.03.2020
Shri Ashok Pandey with Shri Vivek Phadke, learned counsels
for the petitioner.
Shri R. C. Sinhal, learned counsel for the respondents.
Heard.
The petitioner before this Court has filed this present petition being aggrieved by the action initiated under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "SARFAESI Act, 2002").
The petitioner has challenged the e-auction notice dated 14.02.2020. The contention of the learned counsel for the petitioner is that the bank has earlier initiated action against the petitioner under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (in short "the Act of 1993") and a final order has been passed in the original application. His contention is that once the bank has initiated action under the Act of 1993, the bank cannot take action now under the SARFAESI Act, 2002. Learned counsel for the petitioner has drawn the attention of this Court towards Section 13 of the SARFAESI Act, 2002.
This Court has carefully gone through Section 13 of the SARFAESI Act, 2002. There is no bar restraining the bank to take action in accordance with law under the SARFAESI Act, 2002 once the bank has gone to the Tribunal under the Act of 1993.
Undisputedly, the facts of the case reveal that the petitioner on some pretext or the other is creating all kind of hurdles in the matter of recovery and the dues are to the tune of Rs.300.00 crores, as 2 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.6369 of 2020 (Sitashree Food Products Ltd. vs. State Bank of India & others) informed by Shri R. C. Sinhal, Advocate who is appearing for the bank. Right from the year 2011, inspite of all efforts taken by the bank, all kind of hurdles are being created and this is the second visit of the petitioner before this Court.
The earlier order passed by this Court dated 05.09.2019 in W. P. No.18700/2019 reads as under :-
The petitioner before this Court has filed this present petition being aggrieved by the e-auction, which is being conducted by the State Bank of India on behalf of other banks, being the leading bank in the consortium.
The contention of the petitioner is that the Presiding Officer of Debt Recovery Tribunal (DRT), Jabalpur is on leave till 07.09.2019 and therefore, the petitioner is not in a position to obtain an interim order from the DRT.
The facts of the case reveal that in the year 2011, the total outstanding dues against the petitioner company were to the tune of Rs.225 crores. We are in the year 2019. From the year 2011 to 2019, not a single rupee has been paid by the petitioner and in those circumstances, finally the bank has issued a notice under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act, 2002) and thereafter, a notice for taking possession was also issued under Section 13(4) of the SARFAESI Act, 2002 on 19.03.2019.
The petitioner has preferred an appeal before the DRT which is Second Appeal No.247/2019 and the same is pending. The petitioner has further stated that an application was preferred on 06.09.2019 in the aforesaid second appeal. However, as the Presiding Officer is on leave upto 07.09.2019, this Court should entertain the present writ petition.
This Court has carefully gone through the writ petition. It is true that the Presiding Officer is on leave but by virtue of notification dated 03.09.2019, the Presiding 3 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.6369 of 2020 (Sitashree Food Products Ltd. vs. State Bank of India & others) Officer of DRT, Allahabad is looking after the work of the Presiding Officer of DRT, Jabalpur meaning thereby, DRT, Jabalpur is very much functional.
The petitioner in para-2 of the writ petition, which deals with a declaration in respect of proceedings on the same subject whether pending or instituted before any forum has made the following averments :-
The petitioners hereby declare that the petitioners have already filed Securitisation Application titled "M/s Sitashree Food Products Ltd. vs. State Bank of India" and numbered as "S. A. No.247/2019", under Section 17 of the SARFAESI Act, 2002, before the Debt Recovery Tribunal, Jabalpur. It is further declared that the instant petition has been preferred against the publication of the auction notice dated 02.08.2019. The learned Presiding Officer of the learned Debt Recovery Tribunal, Jabalpur is on leave till 07.09.2019. Copy of the notice issued by the learned Registrar DRT is filed and marked as Annexure-P/2.
The aforesaid paragraph makes it very clear that the petitioner has very conveniently stated in the aforesaid paragraph that the Presiding Officer of DRT is on leave. It appears that he has deliberately suppressed the vital information that the Presiding Officer of DRT, Allahabad is looking after the functions of the Presiding Officer, DRT, Jabalpur. Otherwise also, as the matter is already pending before the DRT, this Court is of the opinion that no case, in the peculiar facts and circumstances of the case, where a borrower has not paid a single rupee since 2011 and in the year 2011, the dues were to the tune of Rs.225 crores, does not find any reason to interfere in the matter.
Resultantly, present petition stands dismissed.
In the earlier round of litigation, the petitioner has challenged the proceedings initiated under the SARFAESI Act, 2002 and has stated on affidavit that no Presiding Officer DRT was available and 4 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.6369 of 2020 (Sitashree Food Products Ltd. vs. State Bank of India & others) therefore, this Court should entertain the writ petition. The aforesaid statement made by the learned counsel for the petitioner was factually incorrect and this Court has observed that the petitioner has deliberately suppressed the vital information that there is no Presiding Officer, DRT and there is no one to look after his case. Now again, a second writ petition has been filed by the petitioner.
It is noteworthy to mention that the appeal preferred under Section 17 of the SARFAESI Act, 2002 has already been dismissed by the Debts Recovery Tribunal (DRT), Jabalpur and there is a remedy available to the petitioner to approach the Debts Recovery Appellate Tribunal (DRAT) however, the same has not been done and again, the petitioner has approached this Court on similar grounds.
In the considered opinion of this Court, the petition deserves to be dismissed, and is accordingly dismissed. No order as to costs.
(S. C. Sharma) (Shailendra Shukla)
Judge Judge
gp
Digitally signed by Geeta Pramod
Date: 2020.03.18 13:56:49 +05'30'