Ravindra Agrawal vs Bank of India

A.M. Sapre,J.

By filing this writ under Article 226/227 of Constitution of India, the Petitioner seeks to assail the notice issued u/s 13 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance, 2002, dated 30-1-2002 (Annexure P3/P4) issued by Respondent Bank, calling upon the petitioner to pay the outstanding towards several credit limits/facilities alleged to be extended to petitioner for running their business.

Heard Shri A.K. Sethi, L/C for the Petitioner.

In substance the grievance of the Writ Petitioner is that notice u/s 13(2) ibid sent by the Bank (Respondent) is bad on facts. Accordingly to Petitioner they have discharged their outstanding. It is also their case that when Respondent has with them some property available for realisation of the dues, then no notice in question could be served the Petitioner are on in any event it should have been served. It is also the grievance of the Petitioner that they have replied to the impugned notice by submitting a detail factual reply dated 3-1-2003 (Annexure P/5) as also lawyers reply on their behalf dated 21-1-2003 (Annexure P/6) but the same has not been considered nor taken note of and hence writ to challenge the impugned notice.

In my opinion, this Court at this stage cannot examine the legality of the impugned notices sent by the respondents/Banks to Petitioner u/s 13(2) ibid for the reason inter alia that no factual enquiry as to whether Petitioner has repaid the money and if so when and how much? Can be held in writ petition. A writ Court cannot be converted into a fact finding Court. It is for the Petitioner to approach the respondent Bank and satisfy them as to whether they paid or liquidated the outstanding or not and whether they are interested to liquidate the outstanding and if so in what manner? In such exercise, no legal question/issue of any nature arise for consideration much less for the writ Court. So far as jurisdiction of Bank in issuing such notice is concerned, the same cannot be questioned because admittedly the ordinance in question does not empower the Bank to issue such notice and call upon the Petitioner (borrower) to repay the outstanding. The petitioner has neither challenged the notice on jurisdictional point nor they can possibly put such challenge much less successfully. The Petitioner has also not challenged the vires of such provision which empowers the Bank to issue such notice nor the same can be challenged in this writ.

Submission of L/C for the Petitioner was that the impugned notice is not in the nature of notice but is in fact an order itself and can always be challenged in writ. I do not agree to this submission. Firstly, if the legislative intent is to give such power to Bank then it cannot be challenged on such ground. Secondly, such submission can be urged only when the vires or/and constitutional authority of the very enactment/ ordinance and in particular the impugned provision is assailed (which is not done nor can be done here). Thirdly, impugned notice cannot be questioned on the ground of mala fides of an authority or in any event, it is not so challenged.

L/C for the petitioner then made attempt to convince this Court with reference to factual documents filed in this writ by way of annexures and contended that the impugned notice is factually in correct, it is based on no factual foundation, and hence could not have been issued. I am afraid, this submission cannot be of any help to Petitioner in a writ for the reason already taken note of supra. I will be travelling outside the purview of my writ jurisdiction if I were to entertain such factual plea. If the legislative intent is to allow such plea to be raised only in an appeal to be filed by an aggrieved before the D.R.T. u/s 13(4) of the ordinance then such intention has to be given effect to at the instance of the parties only when such event occurs. The legislative intent must be allowed to prevail in its real perspective and it cannot be whittled down by the acts of the parties.

While thus dismissing this writ in limine, this Court feel it proper to observe that respondent-Bank will ensure examination of petitioner''s case as contained in their two replies referred above in reply to Banks notice (impugned) in its proper perspective and with helping attitude to enable the Petitioner to overcome the problems faced due to issuance of impugned notice and communicate its outcome to the Petitioner.

With these observations, the Petition fails and is dismissed in limine.