Allahabad High Court
Jagdish Prasad Sharma And Another vs District Magistrate, Agra And 4 ... on 19 September, 2013
Bench: Ashok Bhushan, Vipin Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- WRIT - C No. - 43414 of 2013
Petitioner :- Jagdish Prasad Sharma And Another
Respondent :- District Magistrate, Agra And 4 Others
Counsel for Petitioner :- Brij Gopal Tripathi
Counsel for Respondent :- C.S.C.,Satish Chaturvedi
Hon'ble Ashok Bhushan,J.
Hon'ble Vipin Sinha,J.
Heard learned counsel for the petitioners, learned counsel for the Bank and learned Standing Counsel for State-respondents.
By means of this writ petition, the petitioners are challenging the demand notice dated 02.05.2012 and recovery proceeding as initiated against them by the Bank.
Facts in brief are that the petitioners had taken a Cash Credit Loan of Rs. 2 lacs in the year 2003. On default being committed with regard to the payment of the installments, the Bank has issued a demand notice under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 on 21.01.2012 seeking recovery of an amount of Rs. 2,93,938/- plus interest. In pursuance of the said proceedings under SRFAESI Act, 2002, the Bank has also issued possession notice on 02.05.2012.
The petitioner has expressed his willingness to pay the entire outstanding liability, if opportunity is provided to him by the Court to pay the outstanding amount in easy installments.
The Court is well aware of the legal position as has been laid down by the Apex Court in the case of Mardia Chemicals Ltd. Vs. Union of India; JT 2004 (4) SC 308 wherein, it has been categorically held that against the proceedings in pursuance of Section 13(2) of the SRFAESI Act, 2002, the only remedy available with the borrower is of filing objection and the writ petition at this stage would be pre-mature.
It has further been held that against the action taken in pursuance of Section 13(4) of the SRFAESI Act, 2002, the only remedy lies by way of filing an appeal under Section 17 of the Act. The said legal position has been duly reiterated consistently by the Apex Court in a number of cases. Reference in this regard may kindly be made to the judgement of Apex Court in United Bank of India Vs. Satyavati Tandon & Ors, 2010 (8) SCC 110, wherein it has been held that the High Court shall not ordinarily entertain the writ petitions arising out of the 2002 Act and the aggrieved parties shall be relegated to avail the remedy as provided under Section 17 of the Act, 2002. There cannot be any dispute to the law as laid down by the Apex Court in the aforesaid case. However, in the present case the petitioner accepts the liability and is ready to deposit the entire amount.
However, appreciating the eagerness and willingness of the petitioner-borrower to pay the entire outstanding amount, this Court, as a one time measure, in exercise of its equitable jurisdiction under Article 226 of the Constitution of India hereby directs that subject to the following conditions, the recovery proceeding initiated by the Bank shall remain stayed and no coercive steps shall be taken against the petitioner:-
I) The entire amount shall be repaid in six equal quarterly installments. First installment of Rs. 50,000/- to be paid on or before 31.10.2013 and thereafter within every three month. On payment of first installment, the Bank will not take physical possession of the property inasmuch as it pertains to the petitioner.
ii) After payment of first installment, bank shall provide a complete copy of statement of account to the petitioner mentioning the outstanding liability, to the petitioner, which shall be sent by registered post to the address of the petitioner, as available on the record of the bank as on date.
iii) The petitioner shall deposit the entire amount with respondent-bank.
iv) In case of default in any of the conditions, the present order shall stand automatically vacated. It is also provided that in case the respondents find that there has been some concealment with regard to the factual position, the respondents are free to move a stay vacation application before this Court. It is further provided that in case this is the second writ petition and is not the first writ petition, the present order shall not be given effect to.
With the aforesaid directions, the writ petition is disposed of.
No order as to costs.
Order Date :- 19.9.2013
Anand
