Ace Media Advertisers Pvt. Ltd. and Others vs Bank of Baroda and Another

Amitava Lala, J.—This writ petition has been filed by the petitioners to get a writ or direction issued in the nature of certiorari to quash the impugned order dated 11th December, 2008, passed by the respondent No. 2 and notice dated 14th October, 2008 issued u/s 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ''the Securitisation Act'').

It appears to this Court that by an order dated 26th November, 2008, passed in Civil Misc. Writ Petition No. 61141 of 2008, M/s. Ace Media Advertisers Pvt. Ltd. and Ors. v. Branch Manager and Ors. this Bench was pleased to pass following order:

The contention of the petitioners is that there is an order of Debt Recovery Tribunal in favour of the respondents-bank and against the said order appeal is pending and, therefore, notice u/s 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the ''Act, 2002'') cannot be issued. It has been contended before this Court that two simultaneous remedies cannot be availed by the concerned bank, therefore, notice u/s 13(2) of the Act is bad. We are of the view that the petitioners should file a reply/objection u/s 13(3A) of the Act to the notice u/s 13(2) of the Act before the authority concerned raising its grievances and taking all defence taken before this Court.

In view of the above, writ petition is disposed of with the direction that in case if petitioners file any objection to the notice u/s 13(2) of the Act within a period of seven days, the same will be considered by the authority concerned expeditiously within a period of an other seven days after giving opportunity of hearing by a speaking order in accordance to law. It is made clear that we have not adjudicated the matter on merit.

No order is passed as to costs.

Such objection was considered under the order impugned dated 11th December, 2008 by the authorised officer of the respondent-bank and it was held that the notice u/s 13(2) of the Securitisation Act is legal and accordingly sustainable. It has right to proceed simultaneously under the Securitisation Act and The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as ''the D.R.T. Act''). As per Reserve Bank of India (for short ''R.B.I.'') guidelines, the account is N.P.A. (non performing asset) and the petitioners are chronic defaulters. The denial in the objection is bogus, concocted and has no force in the eye of law. The Bank calculated interest as per the R.B.I. guidelines. The Bank had already served notice upon the petitioners u/s 13(2) of the Securitisation Act and such service of notice has been admitted in the objection. The Bank has full right to recover the outstanding dues with interest till the date of payment through Securitisation Act or under decree passed by Debts Recovery Tribunal (for short ''D.R.T.'') as such effective for clearance of dues amount, as deemed fit. Question of availability of other mechanism of recovery cannot be bar for providing remedy under Securitisation Act.

According to learned Counsel appearing for the petitioners, when a decree has been passed by the D.R.T. in accordance with the D.R.T. Act, the petitioners cannot be subjected to the remedy available under the Securitisation Act.

Learned Counsel appearing for the respondents, on the other hand, has vehemently opposed the contentions of the petitioners and brought to our notice various provisions of both the Acts. According to him, as per Section 2(ha), being definition clause of Securitisation Act, ''debt'' shall have the meaning assigned to it in Clause (g) of Section 2 of D.R.T. Act. This has been incorporated in the law with effect from 11th November, 2004. Therefore, if we go through the reference under the meaning of debt'' in the above Act, we have to see Clause (g) of Section 2 of D.R.T. Act which is as follows:

(g) "debt" means any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally, recoverable on, the date of the application.

Therefore, by composite meaning, decree or order is not excluded from the zone of consideration as debt. If Section 37 of the Securitisation Act is seen, it will be clear that there is no impediment in proceeding under the D.R.T. Act irrespective of proceedings under the Securitisation Act. Such Section 37 of the Securitisation Act is also quoted hereunder for the relevant purpose:

Application of other laws not barred.-The provisions of this Act or other rules made thereunder shall be in addition to, and not in derogation of the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force.

In support of the contention of the respondents, learned Counsel cited a judgment in Transcore Vs. Union of India (UOI) and Another, We have gone through the judgment carefully and we find that the point agitated herein has also been raised therein between the concerned Acts, i.e., D.R.T. Act and Securitisation Act. The judgment has extensively dealt with necessity of its implementation. The D.R.T. Act was introduced to establish Tribunals to provide for expeditious adjudication and recovery of debts due to banks and financial institutions and for matters connected therewith or incidental thereto. After introduction of such Act, all the suits and proceedings pending before various civil courts, subject to its pecuniary limits, stand transferred to the D.R.T. As per Section 34 of the D.R.T. Act, it has overriding effect . notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act excepting therein as provided u/s 34 (2) thereof. Section 34 (2) of D.R.T. Act does not contemplate for the other Act, i.e., Securitisation Act, therefore, any discussion therein with regard to other Act is merely academic. The purpose of introduction of Securitisation Act is to regulate securitisation and reconstruction of financial assets and enforcement of security interest and for matters connected therewith or incidental thereto. It particularly deals with non-performing assets within it. The description of non-performing asset has been given u/s 2 (o) of such Act. As the recovery of dues of the Bank was a prolonged process before the civil court for which a Tribunal has been formed. Similarly, the recovery of debts specially with regard to non-performing assets before the Tribunal has also become long lasting process due to heavy backlog and non-availability of mechanism to recover the same. Surprisingly, by virtue of Securitisation Act, the banks and financial institutions become well equipped to recover the amount which we regularly observe sitting in this jurisdiction. In the present case admittedly the account is N.P.A. account, therefore, admittedly there is no bar for the purpose of recovery under the Securitisation Act. Only we have to see what are distinguishing features between the Supreme Court judgment and present case before us apart from the discussion of the relevant paragraphs necessary for the purpose of coming to appropriate conclusion.

According to the ratio of Supreme Court judgment, apart from the obligation to repay, the borrower undertakes to keep the margin and the value of the securities hypothecated so that there is no mismatch between the asset-liability in the books of the bank/financial institution. This obligation is different and distinct from the obligation to repay. It is the former obligation of the borrower which attracts the provisions of the Securitisation Act which seeks to enforce it by measures mentioned in Section 13 of the Securitisation Act, which measures are not contemplated by the D.R.T. Act and, therefore, it is wrong to say that the two Acts provide parallel remedies. The remedy under the D.R.T. Act falls short as compared to the Securitisation Act which refers to acquisition and assignment of the receivables to the asset reconstruction company and which authorises banks/financial institutions to take possession or to take over management which is not there in the D.R.T. Act. It is for this reason that the Securitisation Act is treated as an additional remedy u/s 37 of such Act which is not inconsistent with the D.R.T. Act. Therefore, both the remedies constitute one remedy and as such the question of doctrine of election of remedies does not arise. The doctrine of election of remedies is available only when there are two or more co-existent remedies at the time of election, which are repugnant and inconsistent. In any event, there is no repugnancy nor inconsistency between the two remedies, consequently, the doctrine of election has no application. Section 13 (1) and (2) of the Securitisation Act proceed on the basis that security interest in the bank/financial institution needs to be enforced expeditiously without the intervention of the Court/Tribunal; that liability of the borrower has accrued and on account of default in repayment, the account of the borrower in the books of the bank has become non-performing. For the above reasons, the Securitisation Act states that enforcement could take place by non-adjudicatory process and that the said Act removes all fetters under the above circumstances on the rights of the secured creditor.

Let us also find out, what is the practical difficulty faced by the litigants before the Supreme Court, to consider the cause of the petitioners. The practical difficulties have been explained by the Supreme Court that when an application is filed before the D.R.T. for recovery of an amount on a term loan, on credit facility and on hypothecation account, on non-disposal of such application by the Tribunal due to heavy backlog, the bank finds that one of the three accounts has become substandard/loss, in such a case the bank can invoke the Securitisation Act with or without permission of D.R.T. One cannot lose sight of the fact that even an application for withdrawal/leave takes time for its disposal. Therefore, with inflation in the economy, value of the pledged property/asset depreciates on day-to-day basis. If the borrower does not provide additional asset and the value of the asset pledged keeps on falling then to that extent the account becomes non-performing, therefore, the bank/financial institution is required to move under the Securitisation Act expeditiously by taking one of the measures provided by Section 13(4) of the Securitisation Act. For such reasons the Supreme Court held that withdrawal of the application pending before D.R.T. under the D.R.T. Act is not a precondition for taking recourse to the Securitisation Act. It is for the bank/financial institution to exercise its discretion as to cases in which it may apply for leave and in cases where they may not apply for leave to withdraw. Supreme Court never wanted to spell out those circumstances because of Section 19(1) which is enabling provision and may deal with myriad circumstances.

Section 19 of D.R.T. Act deals with situation with regard to making application before the Tribunal within its local limits and also its withdrawal, . refusal and other proceedings in connection thereto. However, by an amendment with effect from 11th November, 2004 a further proviso for the purpose of withdrawal giving an additional scope of withdrawal has been added which is as follows:

Provided that the bank or financial institution may, with the permission of the Debts Recovery Tribunal, on an application made by it withdraw the application, whether made before or after the Enforcement of Securities Interest and Recovery of Debts Laws (Amendment) Act, 2004 for the purpose of taking action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002), if no such action had been taken earlier under that Act:

Provided further that any application made under the first proviso for seeking permission from the Debts Recovery Tribunal to withdraw the application made under Sub-section (1) shall be dealt with by it as expeditiously as possible and disposed of within thirty days from the date of such application:

Provided also that in case the Debts Recovery Tribunal refuses to grant permission for withdrawal of the application filed under this sub-section, it shall pass such orders after recording the reasons therefor.

Therefore, when the Supreme Court says due to backlog if the application for withdrawal is pending, the same cannot disentitle the petitioners from proceeding under the Securitisation Act.

From the ratio of Transcore (supra) we jot the following points:

(a) N.P.A. Act is enacted to enforce the interest in the financial assets which belongs to the bank/F1 by virtue of the contract between the parties or by operation of common law, principle or by law and to recover the dues by non-adjudicatory process.

(b) N.P.A. Act proceeded on the basis where credit interest of the bank/FI to be enforced expeditiously without the intervention of the Court/Tribunal.

(c) N.P.A. Act proceeds on the basis that the liability of the borrower has crystallised and that his account is classified as non-performing asset in the hands of the bank/FI. It does not deal with disputes between the secured creditors and the borrower.

(d) Section 13(2) proceeds on the basis that the account of the borrower in the books of bank/FI, which is an asset of the bank/FI. has become non-performing. Therefore, there is no scope of any dispute regarding the liability. There is a difference between accrual of liability, determination of liability and liquidation of liability. It also deals with liquidation of liability.

(e) Section 13(2) deals with enforcement of security interest, therefore, the remedies of enforcement of security interest under the N.P.A. Act and the D.R.T. Act are complementary to each other.

(f) There is no inherent or implied inconsistency between these two remedies under the two different Acts. Therefore, the doctrine of election has no application in this case.

(g) Reading the Scheme of Section 13(2) with Section 13(4) it is clear that the notice u/s 13(2) is not a mere a show cause notice and it constitutes an action taken by the bank/FI for the purposes of the N.P.A. Act.

(h) The bank/FI is not only free to move under the N.P.A. Act with or without the leave of D.R.T., but having invoked the N.P.A. Act, liberty is given statutorily to the secured creditors (banks/FIs) to move D.R.T. under the D.R.T. Act once again for recovery of the balance in cases where the action taken u/s 13 (4) of the N.P.A. Act does not result in full liquidation of recovery of the debts due to the secured creditors.

(i) Remedies for recovery of debts under the D.R.T. Act and the N.P.A. Act are complementary to each other.

(j) Section 13 (1) shows that the first proviso to Section 19(1) of the D.R.T. Act is an enabling provision and that the said provision cannot be read as a condition precedent to taking recourse to the N.P.A. Act.

(k) Section 17 (4) shows that the secured creditors is free to take recourse to any of the measures u/s 13 (4) notwithstanding anything contained in any other law for the time being in force.

(l) Section 35 of the N.P.A. Act further clarified that all the provisions of N.P.A. Act shall override all other laws which are inconsistent with the N.P.A. Act. N.P.A. Act is not inherently or impliedly inconsistent with the D.R.T. Act in terms of remedies for enforcement of securities. Section 35 also gives an overriding effect to the N.P.A. Act with all other laws if such other laws are inconsistent with the N.P.A. Act. Remedies are complementary to each other, therefore, the doctrine of election has no application. N.P.A. Act is an additional remedy to the D.R.T. Act together they constitute one remedy, therefore, the purpose of election does not apply.

Circumstance herein is little different. Factually in the referred case, when withdrawal application was pending before the D.R.T., step under Securitisation Act was taken, whereas in the instant case, when an appeal from decree/order of D.R.T. was pending, step under Securitisation Act was taken. The question hereunder is not whether an appeal or application, either for withdrawal or for any other purpose at any stage was pending before the D.R.T., Debts Recovery Appellate Tribunal (for short D.R.A.T.) or not, but the question is whether the process under the Securitisation Act can simultaneously run or not. When the Supreme Court held that the process under the Securitisation Act is an additional remedy and a non-adjudicatory process, therefore, the doctrine of election of remedies cannot be available, we do not find the present case is principally different from the judgment and order passed by the Supreme Court on account of simultaneous proceeding. What is required to be clarified herein is whether the bank will be able to proceed under the Securitisation Act, for any amount or for the amount determined under the decree/order of D.R.T. To that extent we are of the view that determination of a claim under a non-adjudicatory process, cannot override the determined amount of adjudicatory process, i.e., decree/order of D.R.T. Therefore, the recovery will be available under the Securitisation Act only with regard to the determined amount by the D.R.T. subject to decision, if any by the higher Court/s. Reason behind saying so is that a decree or order of a judicial adjudicatory process will always have prevailing effect over and above that of the non-adjudicatory process and secondly, both under the Securitisation Act and D.R.T. Act, the forum for adjudication is the same, either for original proceeding or for appeal. In this particular case, when the D.R.A.T. as an appellate forum has already tested the verdict of D.R.T. and dismissed the appeal, further determination or test by the D.R.T. as an appellate forum under the Securitisation Act, for the self same claim is futile in nature. Therefore, we are of the view that instead of dismissing the writ petition, the same can be disposed of in a limited manner by saying that process under Securitisation Act, during the pendency of proceeding under the D.R.T. Act, cannot be a bar but if the decree/order is passed by D.R.T., the claim under the Securitisation Act will be confined to that extent, Thus, the writ petition is disposed of.

However, no order is passed as to cost.

Rajes Kumar, J.

I agree.