Allahabad High Court
M/S Siddhivinayak Enterises Thru. Smt. ... vs Distt. Magistrate , Raebareli And 2 ... on 30 May, 2024
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:41130-DB
Court No. - 3
Case :- WRIT - C No. - 4876 of 2024
Petitioner :- M/S Siddhivinayak Enterises Thru. Smt. Sama Singh And Another
Respondent :- Distt. Magistrate , Raebareli And 2 Others
Counsel for Petitioner :- Puttu Lal Misra
Counsel for Respondent :- C.S.C.,Ruby Choudhary
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Brij Raj Singh,J.
Heard learned counsel for the petitioners, learned Standing Counsel for the State-respondents and Ms. Ruby Chaudhary, learned counsel appearing on behalf of opposite parties no. 2 and 3.
This petition has been filed with the following main prayers:-
"(i) Issue a writ, order or direction in the nature of 'Certiorari' thereby quashing the impugned notices dated 06.12.2023 allegedly issued U/s. 13(2) and possession notice dated 20.03.2024 issued U/s. 13(4) of the SARFAESI Act, 2002 together by the respondent No. 02 against the petitioners (impugned notices dated 06.12.2023 and 20.03.2024 are contained in annexure-01 and annexure-02).
(ii) Issue any other writ, order or direction in the nature of 'Mandamus' thereby directing the respondent No. 02 to comply the mandatory provision of Section 13(2) read with Section 13(3-A) granting an opportunity to the petitioners to submit their representation and decide the same."
It has been submitted by learned counsel for the petitioners that petitioner no.1 had taken a loan/ cash credit loan facility from opposite party no.2 and an agreement was also executed between the petitioner no.1 and the Bank on 20.10.2022. Because of certain difficulties faced in the business, petitioner no.1 could not repay the loan dues in time. Petitioners have been served with notice dated 06.12.2023 under Section 13(2) of the SARFAESI Act. The possession notice has also been issued immediately thereafter on 20.03.2024 under Section 13(4) of the SARFAESI Act, 2002. The petitioners have not been given any opportunity to avail the benefit of Section 13 (3-A) of the SARFAESI Act, 2002 and the petitioners could not make any representation/ raise any objection after receipt of the notice under Section 13(2) of the Act, as the notice under Section 13(2) of the Act was not served upon the petitioners, but it was served alongwith possession notice dated 20.03.2024.
Ms. Ruby Chaudhary, learned counsel for opposite parties no.2 and 3 , on the basis of provisions of the Act, has argued that after demand notice is issued under Section 13(2) of the Act , giving details of the amount payable by the borrower and secured assets intended to be enforced by the creditors in the event of non-payment of the creditor by the borrower, the borrowers can make a representation under sub section (3-A) and raise objection which shall be considered by the creditor and the decision thereon shall be communicated within 15 days from the date of receipt of such representation. However, no such representation was made under the provisions of the Act. Notice under Section 13(4) taking symbolic possession is issued after 60 days of the initial demand notice under Section 13(2) of the Act. The petitioner had time to make such representation before issuance of notice under Section 13(4) for taking symbolic possession by the bank, but the petitioner did not make any representation .
It has further been submitted by Ms. Ruby Chaudhary that the law has been settled insofar the proceedings under SARFAESI Act, 2002 are concerned for the secured creditors . She referred to a judgment rendered by Hon'ble Supreme Court in the case of United Bank of India Vs. Satyavati Tandon and others, reported in (2010) 8 SCC 110.
The writ petition is dismissed as not maintainable.
Order Date :- 30.5.2024
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