Smt. Sabita Das vs The Authorized Officer
2021 Latest Caselaw 1961 Cal

   19                  IN THE HIGH COURT AT CALCUTTA
16.03.2021            CONSTITUTIONAL WRIT JURISDICTION
  sb
   Ct23                       APPELLATE SIDE


                                    WPA 6477 of 2021

                                  Smt. Sabita Das
                                         Vs.
                     The Authorized Officer, Indian Bank & Ors.


                       Mr. Sanojit Kumar Ghosh,
                       Mr. Madhusudan Mukhopadhyay
                                        ... For the petitioner.

                       Mr. Dhiman Ray
                                 ... For the respondents no.1 and 2

Affidavit of service filed in Court today is

taken on record.

At the outset, it is submitted by the

advocate engaged by Indian Bank that Allahabad

Bank has merged with the Indian Bank with effect

from 1st April, 2020 and, as such, there is no

independent existence of Allahabad Bank at the

present. The authorized officer, Allahabad Bank,

should be substituted by the authorized officer,

Indian Bank and the Branch Manager, Allahabad

Bank, Jhalijhalia Branch, Malda, being the

respondent no.2 should be substituted by the Branch

Manager, Indian Bank, Jhalijhalia Branch.

The petitioner is granted leave to amend the

cause title by incorporating Indian Bank in place of

Allahabad Bank in the cause title as against

respondents no. 1 and 2.

The petitioner says that the petitioner's

property had been sold in auction sometime in

December, 2014, in terms of the notice of sale dated

17th October, 2014, at a grossly low value. The

petitioner challenged the auction notice by filing an

appeal before the Debts Recovery Tribunal under the

provisions of section 17 of the Securitisation and

Reconstruction of Financial Assets and Enforcement

of Security Interest Act, 2002 (in short, SARFAESI).

The said appeal was ultimately dismissed for default.

The petitioner had moved the Appellate Tribunal

against the order of dismissal seeking restoration but

the same was dismissed. The petitioner has filed the

present writ petition on 3rd March, 2021 challenging

the action on the part of the bank after a lapse of six

years upon being unsuccessful in getting her appeal

restored. The petitioner says that the bank had

valued the property at the time of granting loan to the

petitioner. The bank did not adhere to such valuation

at the time of sale. On the contrary got a fresh

valuation at a much reduced rate and invited offers

on such basis. The sale was conducted on such

basis. The petitioner has relied upon a judgment

delivered by a learned Single Judge of the High Court

of Kerala on 9th February, 2018 in WP (C) No.1030 of

2018 (K. T. Unnikrishnan vs. Authorized Officer,

UCO Bank & Ors.) to emphasize that this Court in

exercise of its writ jurisdiction should interfere in the

illegal and unauthorized acts of the bank to the

extent of selling the petitioner's property at a grossly

low value.

On behalf of bank it is submitted that the

sale was made in December 2014 after observing all

legal formalities consequent upon petitioner's failure

to repay the loan. The petitioner has not only

approached at a delayed stage but after being

unsuccessful in her challenge before the Tribunal.

That apart and in any event the position after the

sale in 2014 has now become irreversible.

On perusing the judgment in Unnikrishnan

(supra) it appears that the sale was conducted on 3rd

November, 2017 and the judgment was delivered on

9th February, 2018 which presupposes that the sale

conducted by the bank in that case was brought

under the scrutiny of the Court within a short period

from the date of sale. It also appears that the

petitioner in Unnikrishnan (supra) had relied upon a

registered deed of sale (Exhibit P-5) executed on 2nd

November, 2017 in respect of a property situated in

the very survey number measuring 4 cents.

The petitioner in Unnikrishnan (supra) also

prayed for release of the property to be sold by the

petitioner (in that case) to a person of his choice in

terms of an agreement. The factual position in two

cases are different and with the passage of time

between the sale and petitioner's approach to this

Court the ratio of Unnikrishanan (supra) cannot be

applied in the instant case.

The challenge to a valuation is dependent

on several factual parameters, which has been also

considered and approved in Unnikrishnan (supra).

The writ Court in the absence of undisputed facts

cannot exercise its jurisdiction. In the instant case,

there is a long delay by the petitioner in approaching

the writ Court. The sale was conducted in December,

2014 and the petitioner has approached this Court in

March, 2021. The petitioner, in the meantime

persuaded her remedy under section 17 the

SARFAESI Act as also in appeal before the Tribunal.

The Debts Recovery Tribunal is a fact finding Court

and the petitioner's case could have been more

effectively be gone into so far as the valuation aspect

is concerned than by this Court in exercise of writ

jurisdiction. That apart and in any event, there is no

materials on record like that in Unnikrishnan (supra)

to substantiate the asset was admittedly under

valued at the time of sale.

The writ petition, therefor, fails and is

dismissed. Since the petitioner's appeal was

dismissed for default and the approach to Tribunal

for restoration thereof is unsuccessful no further

opportunity before the Tribunal is unwarranted.

Since I have not called for any affidavits,

the allegations contained in the writ petition are

deemed to have not been admitted by the

respondents.

Urgent photostat certified copy of this

order, if applied for, is to be given to the parties upon

compliance with the necessary formalities.

(Arindam Mukherjee, J.)