Hyder Seikh vs Bank of Baroda and Others

D.N. Patel, J.—The present petition has been preferred mainly against a notice issued by Respondent-Bank u/s 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

Learned Counsel for the Petitioner vehemently submitted that the notices issued by Respondent-Bank u/s 13(3) and Section 13(4) of the Act, 2002 are illegal, null and void and Respondent-Bank is deliberately not giving any account of the amount paid by the Petitioner to Respondent-Bank and what is actually due amount to be recovered from the Petitioner, despite a clear stand taken in para 11 of a reply of the notice, which is at Annexure 2 to the memo of the present compilation. Nonetheless, it is fairly submitted by the learned Counsel for the Petitioner that he is aware of the efficacious alternative remedy but, looking to the notice of Respondent-Bank, the Petitioner may not be dispossessed, forcefully from the premises in question because the Petitioner is a running concern and he has already paid Rs. 45,13,702/- against a loan of principal amount of Rs. 60,00,000/- and the Petitioner is ready and willing to pay legally payable amount to the Respondent-Bank and, therefore, looking to Section 17 of the Act, 2002 let stay already granted by this Court to continue to be operative for some period so that an appeal can be preferred u/s 17 of the Act, 2002 along with a stay application and further proper care may be taken under the SRFAESI Act, 2002.

I have heard learned Counsel for Respondent-Bank, who has vehemently submitted that the petition is not tenable at law as an efficacious alternative remedy u/s 17 of the SRFAESI Act, 2002 is available with the Petitioner. Notice u/s 13(2) of the SRFAESI Act, 2002 was issued on 9th August, 2008, thereafter notice u/s 13(3) of the SRFAESI Act, 2002 was issued on 19th August, 2008 and lastly notice u/s 13(4) of the Act, 2002 was issued on 10th September, 2008 for taking over possession of the premises in question, which was mortgaged to Respondent-Bank as a security. So far as the dispute of giving the account is concerned, as and when the appeal is preferred by the Petitioner, the same can be given before the Debts Recovery Tribunal. Otherwise also, Respondent-Bank has already instituted Original Application No. 24 of 2008 (as stated by the learned Counsel for the Petitioner) before the D.R.T., against the Petitioner wherein also, all facts have been stated, in detail, about the accounts. Nonetheless, Respondent-Bank shall give all detailed calculation about the legally payable amount by the Petitioner to Respondent-Bank. Thus, this Court may not entertain this writ petition in exercise of powers vested under Article 226 of the Constitution of India.

Having heard learned Counsel for both the sides and looking to the facts and circumstances of the case, it appears that Respondent-Bank has already given notice to the Petitioner u/s 13(2) of the SRFAESI Act, 2002 on 9th August, 2008, likewise notice u/s 13(3) of the SRFAESI Act, 2002 was given on 19th August, 2008 and lastly a notice u/s 13(4) of the Act, 2002 was also given on 10th September, 2008 and looking to the provisions of Section 17 of the SRFAESI Act, 2002 an appeal is tenable against such an action of the Respondent-Bank before the Debts Recovery Tribunal, Ranchi. Thus, an efficacious alternative remedy is available with the Petitioner.

Learned Counsel for Respondent-Bank has submitted that as they have waited enough since 10th September, 2008, which is the date of issuance of notice u/s 13(4) of the SRFAESI Act, 2002, from today for fifteen days, they will not forcefully dispossess the present Petitioner, but this concession will be ceased to operate on and from 16th day from today, automatically.

In view of this fair submission and fair stands taken by the Respondent-Bank. I, hereby, dispose of this writ petition on the ground of availability of an efficacious alternative remedy u/s 17 of the SRFAESI Act, 2002. As and when an appeal is preferred by the Petitioner, the same shall be disposed of on its own merits, without being influenced by the order of this Court. This Court has not gone into the merits or demerits of the case of the present Petitioner.