Sri Rudra Bhattacharya And ... vs The Authorised Officer
2021 Latest Caselaw 3802 Cal

                       In the High Court at Calcutta
                        Civil Revisional Jurisdiction
                               Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                            C.O. No.592 of 2021

                   Sri Rudra Bhattacharya and another
                                    Vs.
              The Authorised Officer, Bank of India and others




Petitioner no.1-in-person           :     Mr. Rudra Bhattacharya

For the opposite parties            :     Mr. Ramesh Chandra Prusti,
                                          Mr. Sanjib Das


Hearing concluded on                :     06.07.2021

Judgment on                         :     15.07.2021




Sabyasachi Bhattacharyya, J:-


1.    The present application under Article 227 of the Constitution of India

      has been filed, challenging the alleged illegal possession taken by the

      respondent-authorities in respect of the petitioner's property at 11,

M.M. Feeder Road, Kolkata-700 057, from which a ladies' hostel was

being run by the petitioner. It is contended by the petitioner,

appearing in person, that such illegal dispossession of the petitioner

and ouster of the residents of the hostel took place on February 14,

2015. Challenging such action, the petitioner moved the Debts

Recovery Tribunal (DRT), Kolkata by filing S.A. No. 142 of 2015. Upon

the said application being disposed of, an appeal was preferred and

the Debts Recovery Appellate Tribunal (DRAT) remanded the matter to

the DRT and the Third Bench of the DRT, Kolkata took up the matter

for hearing.

2. The petitioner had filed an interlocutory application bearing IA No.73

of 2019 for return of movable assets seized by the respondent-Bank

from the said property at 11, M.M. Feeder Road and IA No.1360 of

2019 for judicial investigation into the alleged tampering of S.A.

No.142 of 2015 in the DRT records.

3. IA No. 73 of 2019 was subsequently amended and thereafter disposed

of vide order dated January 24, 2020 by DRT-III. However, the

allegations of fraud and forgery made in IA No.1360 of 2019 were not

considered on the ground that it was not the subject-matter of IA

No.73 of 2019.

4. Subsequently, another application, bearing IA No. 162 of 2020, filed

by the petitioner for expeditious disposal in terms of the DRAT order

of remand, was dismissed by the DRT-III upon imposition of

Rs.5,000/- as costs on February 24, 2020. An appeal was preferred

against such order but subsequently withdrawn by the petitioner.

5. The order dated January 24, 2020, disposing of IA No.73 of 2019, was

challenged by the petitioner before the DRAT in Appeal No.225 of

2020. Such appeal was disposed of on January 20, 2021 by the

DRAT vide order dated January 20, 2021. The present challenge has

been preferred against such order of the DRAT.

6. By the order dated January 24, 2020, the Presiding Officer, DRT-III

allowed IA No.73 of 2019 with the following directions:-

"(i) Respondent bank has submitted a valuation report of the items listed in the inventory, which was prepared by Ashok Kumar Baishya, Chartered Engineer & Approved Valuer of respondent bank. Respondent bank is directed to communicate the valuation report on affidavit forthwith to the applicant and applicant is directed to submit his comments on the valuation report before this Tribunal.

(ii) It is admitted fact that applicant was residing near to the mortgaged property. Applicant is directed to submit on affidavit the cause that prevented him to take back the inventories when the list of inventory and panchnama were handed over to him on the day of taking over physical possession.

(iii) Three gas cylinders were listed in the inventory. Respondent bank is directed to hand over the same to the applicant or hand over it to the LPG authority with proper receipt and the receipt thereof shall be handed over to the applicant.

(iv) Direction regarding return of inventories or in lieu thereof payment of valuation of the inventories prepared by approved valuer to the applicant will be considered at the time of disposing of main S.A.

(v) Above directions shall be carried out forthwith and a report thereof shall be submitted before this Tribunal."

7. The appellate forum, while deciding Appeal No.225 of 2020, directed

the respondent-Bank to file the Valuation Report afresh in the DRT

and the Presiding Officer of the DRT was directed to take up the

Valuation Report and proceed to assess the value of the goods and at

the same time proceed to take up the matter along with all other IAs

and the S.A. itself and to dispose of the latter in accordance with law

on or before March 31, 2021.

8. The petitioner, appearing in person with the leave of court, argues

that the possession of the premises-in-question, which was a secured

asset for the loan taken by the petitioner, was taken illegally, without

any valid order of the concerned Magistrate. It is argued that no copy

of any Magistrate's order under Section 14 of the SARFAESI Act, 2002

was produced by the Bank before the Tribunals at any point of time.

9. It is further contended by the petitioner that the removal of the

movable assets, which were not part of the secured assets, was itself

de hors the law. The purported notice sent to the petitioner in such

connection was sent at the address of the property-in-dispute,

although the petitioner had already been dispossessed therefrom by

the Bank itself and was residing nearby at 12/1, M.M. Feeder Road,

Kolkata-700 057, which was within the knowledge of the Bank. In this

context, the petitioner places the bank's letter to the petitioner dated

August 27, 2015. It is, thus, submitted that the movable assets were

virtually stolen without appropriate notice to the petitioner. Moreover,

the Bank also took possession of three gas cylinders which belonged

to the Central Government and was not the petitioner's property, a

locked almirah (wardrobe) containing movables worth Rs.16,72,762/-

was also seized by the Bank, it is alleged. A list prepared by the

petitioner, annexed at page 155 of the revisional application, though,

indicates that the valuation of such movables contained in the

almirah was worth Rs.4,82,082/-.

10. The petitioner further submits that the purported notice dated May

11, 2015, allegedly served by the Bank on the petitioner and referred

to in the notice dated June 4, 2015 of the bank, was never produced

before any of the forums below.

11. In the notice dated June 4, 2015, it was stated that the registered

valuer of the bank had evaluated the movable property at a paltry

sum of Rs.25,000/-, which was gross under-valuation according to

the petitioner.

12. Regarding tampering, the petitioner contends that the original S.A.

filed by the petitioner, a purported copy of which is handed over to

this court by the petitioner and kept with the records, contained, as

annexures, a Panchnama, Possession Notice and Inventory, which

were not found in the copy of the SA, the certified copy of which was

subsequently handed over to the petitioner on his application. Apart

from such removal of annexures, paragraph 5.23 at page 70 of the

original S.A. had been replaced by paragraph 5.25 (at page 251 of the

revisional application) and paragraph no. 21 at page 68 of the original

was allegedly altered to paragraph 5.23 (at page 250 of the revisional

application). In view of such interpolation and tampering, it is alleged,

the complexion of the S.A. was changed. A comparison between the

original S.A. of its certified copy would reveal such malpractice on the

part of the respondents, the petitioner argues.

13. The certified copy of the S.A., which is allegedly of a tampered copy at

present on record before the tribunal, is annexed at pages 235 to 286

of the revisional application.

14. Learned Counsel appearing for the respondent-bank, on the contrary,

argues that there was a specific order passed by the concerned

Additional District Magistrate under Section 14 of the SARFAESI Act,

2002, a copy which has been annexed at page 57 of the affidavit-in-

opposition filed by the respondents. It is further contended that,

pursuant to such order, physical possession of the property at 11,

M.M. Feeder Road was taken on February 14, 2015 in the presence of

the petitioner. The sale notice, annexed at page 51 of the affidavit-in-

opposition, was published on March 19, 2015. Thereafter, the

property was sold in public auction to one Shri Himangshu Das on

April 21, 2015. Hence, the entire procedure was in accordance with

law and the petitioner's allegation as regards such dispossession

being illegal has no basis whatsoever.

15. Secondly, it is argued by learned Counsel for the respondents, the

petitioner has adopted dilatory tactics all along and sought for

adjournments in the matter from April 8, 2019 to August 21, 2019,

copies of orders pertaining to which are annexed at pages 27 to 38 of

the affidavit-in-opposition.

16. The petitioner, learned Counsel for the respondents submits, took

various loan facilities from the respondent-bank under four group

accounts. Cash credit worth Rs. 3 lakh, term loan of Rs. 1.5 lakh and

housing loan of Rs. 8 lakh was taken by the petitioner. As security for

such loans, the property at 11, M.M. Feeder Road, was kept in

equitable mortgage by the petitioner with the bank. The accounts of

the petitioner were declared NPA (Non Performing Assets) on

September 30, 2007 due to the petitioner having defaulted in

repayment of the said loans/credit facilities.

17. Consequently, a notice under Section 13(2) of the 2002 Act was issued

by the bank on December 28, 2007, to which no reply was given by

the petitioner. As such, after the expiry of 60 days, the bank took

symbolic possession of the secured asset by affixing possession notice

on the said property on January 9, 2015, subsequent to which

physical possession was taken on February 14, 2015.

18. It is next contended that the petitioner has been grossly inconsistent

in his claims regarding the value of the movables seized by the Bank

at the time of taking physical possession of the immovable property,

which was the secured asset.

19. In the notes of arguments filed by the petitioner before the DRT-III in

connection with IA 73 of 2019 as well as in the present revisional

application, such value has been alleged to be Rs. 16,72,762/-;

however, Annexure A-2 of IA 73 of 2019 itself, filed by the petitioner

before the Tribunal, evaluates such movables at Rs. 60,11,500/-.

Hence, the petitioner's claim as regards the valuation of challenge to

the report of the approved valuer of the bank has no legs to stand on.

20. Notice was given to the petitioner vide letter dated May 11, 2015 to

take back the movables. Thereafter, repeated reminders were given

including on June 4, 2015, but the petitioner turned deaf ears to such

requests. Hence, there was no other option before the Bank but to

have the properties evaluated in accordance with law by its approved

valuer and the valuation report dated June 1, 2015 puts the worth of

the movables at a value of Rs. 25,000/-.

21. Regarding the allegations of tampering with the S.A., learned Counsel

for the respondents vehemently denies the same and submits that

such allegations of tampering are beyond the pleadings of the

petitioner in the present revisional application. Rather, the petitioner

himself tampered with the documents and tried to give a false

impression before this court, it is alleged. In fact, the Panchnama

dated February 14, 2015 as well as the Inventory of movables,

annexed respectively at pages 53 and 56 of the affidavit-in-opposition,

were both signed by the petitioner. However, in the copy of the said

documents, annexed at pages 94 to 99 of the revisional application,

such signatures of the petitioner have been deleted.

22. It is further contended by learned Counsel for the respondents that,

since the DRT-III is in seisin of the matter pursuant to the DRAT

direction and in view of the bar to the Civil Court's jurisdiction to take

up matters concerning the jurisdiction of the DRT/DRAT, as

incorporated in Section 34 of the SARFAESI Act, the present revisional

application under Article 227 of the Constitution of India is not

maintainable and ought to be dismissed on such score alone.

23. Upon considering the submissions of the parties, it appears from the

copy of the order dated February 19, 2014 passed by the concerned

Additional Magistrate under Section 14 of the SARFAESI Act, 2002,

annexed at page 57 of the affidavit-in-opposition, it is prima facie

evident that the possession taken by the Bank was not tainted by any

illegality but was in accordance with law. Since the bank followed due

process of law, as contemplated under Sections 13(2) and 13(4) of the

2002 Act, there cannot arise any apprehension of unlawful

dispossession of the petitioner from the property at 11, M.M. Feeder

Road, which was the secured asset given in equitable mortgage to the

Bank by the petitioner.

24. As regards the maintainability of the present revisional application,

the bar envisaged under Section 34 of the SARFAESI Act applies to

Civil Courts but it is arguable whether the same also prevents the

High Court from exercising the power of judicial review under Article

227 of the Constitution of India, which is a Constitutional remedy and

cannot curtailed by any subordinate legislation. However, the Bank is

justified in arguing that since the DRT-III is in seisin of the issues

involved in the present revisional application pursuant to the DRAT

direction in the impugned order, there is little or no occasion to

exercise such power by this court under Article 227 of the

Constitution of India. The ratio laid down in Jharu Ram Roy Vs. Kamjit

Roy & Others, reported at (2009) 4 SCC 60, relied on by the petitioner,

wherein the Supreme Court held that fraud vitiates all, is not

applicable to the present case in view of not even any prima facie case

of fraud having been made out by the petitioner from the material-on-

record. Moreover, it is well-settled that particulars of fraud, as alleged,

have to be specifically pleaded for any court to come to the finding of

fraud. In the present case, such pleadings are conspicuously absent

in the revisional application.

25. The judgments of the Supreme Court in M/s Tripower Enterprises Pvt.

Ltd Vs. State Bank of India, reported at 2020 SCC OnLine SC 396,

United Bank of India Vs. Satyawati Tondon & Others., reported at

(2010) 8 SCC 110 and Rajkumar Shivhare Vs. Assistant Director,

Directorate of Enforcement & Another, reported at (2010) 4 SCC 772, all

cited by the respondents, deal primarily with the self-imposed

restriction of the High Court in exercising the power of juridical

review, particularly when an equally efficacious alternative remedy is

applicable. Although there is limited scope for interference under

Article 227 in case of gross miscarriage of justice, patent illegality or

procedural irregularity having been committed by a subordinate court

or tribunal and the like, the impugned orders do not attract any such

circumstance.

26. It is evident from the impugned order of the Appellate Tribunal that

the valuation report submitted by the Bank was not specifically

rebutted by the petitioner by any cogent evidence. Yet, in the ordering

portion of the tribunal's order, the respondent-Bank was directed to

communicate the said report on affidavit to the petitioner for the latter

to submit his comments on such valuation report before the tribunal.

27. The Appellate Tribunal took care to direct that the three gas cylinders

which were listed in the Inventory were to be handed over to the

petitioner or to the LPG authority with proper receipt, which would be

handed over to the petitioner.

28. Even if the petitioner's contention, that the alleged notice dated May

11, 2015 was not produced by the Bank at any stage of the litigation,

is correct, the tribunals below proceed on the premise that the

publication of the notice on May 22, 2015 was sufficient notice to the

petitioner. That apart, the notice dated June 4, 2015 was admittedly

received by the petitioner. No plausible explanation has been give as

to why the petitioner deliberately avoided collecting the movables from

the concerned authorities of the Bank. Even irrespective of the

requests made by the Bank, the onus was upon the petitioner to

collect the valuables, since the petitioner does not deny knowledge of

possession of the property at 11, M.M. Feeder Road being taken by the

Bank on February 14, 2015. That apart, the sale notice dated March

19, 2015 was sufficient for the petitioner to act thereupon. Another

factor which has to be considered is that, admittedly, the petitioner

lives at 12/1, M.M. Feeder Road, which is in close proximity to the

disputed property. As such, it is unclear as to what prevented the

petitioner from taking possession of the movables by contacting the

Bank immediately after those were seized along with the immovable

property.

29. The Appellate Tribunal merely directed the Bank to file the Valuation

Report afresh and to proceed to assess the value of the goods and to

take up the matter along with all other I.A.s in the S.A. and to dispose

of the S.A. in accordance with law, which cannot be faulted from any

perspective. The allegation that the Valuation Report of the movables

in the custody of the Bank had not been filed before the Tribunal, was

sufficiently redressed by the DRAT in view of the direction on the

Bank to file a fresh valuation report. In fact, the DRT-III also gave

opportunity to the petitioner to comment on the Valuation Report,

thereby keeping it open for any objection to be taken to such valuation

by the petitioner, along with relevant documents to rebut the

valuation arrived at by the approved valuer of the Bank, who is a

chartered engineer as well.

30. The DRT-III order left sufficient scope for consideration of the return

of the moveable assets mentioned in the Inventory or, in lieu thereof,

payment of the value of the movables as assessed by the approved

valuer at the time of disposal of the main S.A.

31. Hence, sufficient opportunity was given by the DRT to the petitioner to

canvass and prove, by cogent evidence, the actual valuation,

according to the petitioner, of the movables as well as to ventilate the

other grievances raised before this Court. The Appellate Tribunal's

order directing the bank to file a fresh Valuation Report could not be

faulted in any manner, since the same would take care of the

grievance of the petitioner that no copy of the Valuation Report had

been served on him.

32. As regards the applicability of Rule 4 of the Security Interest

(Enforcement) Rules, 2002, even if it is assumed that the movables

seized by the Bank were not 'secured assets', thereby precluding

applicability of the said Rule to such movables, there was no other

option before the Bank than to take possession of the secured assets

with whatever movable property was lying therein.

33. Due process of law was followed at every stage by the respondents to

obtain a valid order of recovery and an order of possession under

Section 14 of the SARFAESI Act from the concerned magistrate. Even

thereafter, despite the wilful refusal of the petitioner to take back the

movable properties, although the petitioner knew about his

dispossession and consequent seizure of the movables from the date

thereof, the Bank took due care of the movables as befits any prudent

owner of the property and kept it in its custody. The movables were

also evaluated by a registered chartered engineer, who was an

approved valuer of the Bank, after the petitioner exhibited his

obstinacy in refusing to take back such movables.

34. Since the directions issued in the impugned orders were sufficient to

ensure that all the allegations made by the petitioner would be

considered on merits by the DRT itself, there is no scope for exercising

the power of judicial review under Article 227 of the Constitution in

the present case. There was no infirmity or material irregularity in the

impugned orders of either the DRT or the DRAT justifying interference

by this Court.

35. Hence, the present revision fails.

36. Accordingly, C.O. No.592 of 2021 is dismissed on contest by affirming

the impugned orders of the Tribunals below without, however, any

order as to costs.

37. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )