The Division Bench of the High Court of J&K and Ladakh observed that the dispatching of notice under Section 13(2) of the SARFAESI Act would raise a presumption in favour of a public sector institution that its judicial and official acts were performed regularly under Section 114(e) of the Indian Evidence Act.
Brief Facts:
The establishment of the petitioner, which is a partnership firm was destroyed in a fire incident. The petitioner approached the bank for a one-time settlement and they were in the process of arriving at a feasible OTS regarding the outstanding loan amount. However, the respondent issues a notice under Section 13(4) of the Sarfaesi Act 2022 which has been put to challenge by the petitioner in the writ petition.
The learned counsel appearing for the petitioner submitted that the bank unlawfully issued a notice under Section 13(4) while keeping the petitioner under the impression that the issue was still open for an out-of-court settlement, thus the order deserves to be quashed. It was further argued that notice under Section 13(2) of the Sarfaesi Act violated natural justice as it sets out the liability and the period for its discharge, but it was never issued to the petitioner.
Contentions of the Respondent:
The learned counsel appearing for the respondent argued that the submissions put forth by the petitioner were factually incorrect and presented evidence of the notice which was dispatched to the petitioner under Section 13(2) to support the same. The counsel further challenged the maintainability of the writ present on the ground that when a suitable alternate remedy was available with the firm, it could not have approached the court under Article 226.
Observations of the Court:
The court observed that the court, being a public sector institution had raised a presumption in its favor under Section 114(e) of the Indian Evidence Act that its judicial and official acts were regularly performed as it had prima facie proved the regular dispatch of the notice.
On the issue of maintainability of the petition, the court observed that the availability of an alternate remedy does not bar the jurisdiction of the court under Article 226 and the petitioner was required to present to the court reasons or special circumstances as to why the alternate remedy available was not equally efficacious.
The court observed that there was no violation of natural justice as prima facie material on record shows that the notice under Section 13(2) was issued to the petitioner and the petitioner gave no reply to it even though an adequate opportunity was provided for the same.
The decision of the Court:
The petition, being devoid of any merits was dismissed by the court.
Case Title: M/S Shaf Sons through Gowhar Ahmad Mir and Anr. vs J&K Bank Ltd. And Ors.
Coram: Hon’ble Mr. Justice Atul Sreedharan and Hon’ble Mr Justice Mohan Lal
Case No.: CM No. 1683/2023 in WP(C) No. 407/2023
Advocate for the Applicant: Mr. S.A. Makroo and Mr. Basharat Ahamd Wani
Advocate for the Respondent: Mr. Adil Asimi
Read Judgment @LatestLaws.com
Picture Source :
