State Bank Of India And Another vs Shankar Saw Mills Private Limited
2022 Latest Caselaw 5057 Cal

August 3, 2022
Sl. No.5
Court No.1
s.biswas
                                       MAT 1129 of 2022
                                            With
                                        CAN 1 of 2022

                                 State Bank of India and another
                                                vs.
                                Shankar Saw Mills Private Limited


                 Mr. Joy Saha, Sr. Adv.
                 Mr. Pijush Kumar Ray,
                 Mr. Om Narayan Rai, Advocates
                                                          ... for the appellants
                 Mr. Dulal Dey, Advocate
                                                          ... for the respondent

This appeal is at the instance of the respondent

Bank challenging the order of the learned Single Judge

dated 14.07.2022 whereby WPA 13353 of 2022 has been

allowed and the learned Single Judge has directed to

remove all the preventive measures which have been put

by the appellant including the padlock within 72 hours in

the premises in question and also directed the appellant

Bank to extend the period of settlement sanctioned by it

for a further period of six months from the date on which

the writ petitioner can resume its business in full steam.

Learned counsel for the appellants referring to the

documents filed before this Court has submitted that

against the order passed under Section 14 of the

SARFAESI Act by the District Magistrate, South 24

Parganas on 12th November, 2020, the writ petitioner had

preferred an application being SA 322 of 2021 before the

Debts Recovery Tribunal and the same was dismissed on

15th November, 2021. Against this, no appeal was

preferred.

MAT 1129 of 2022

He has further submitted that a challenge was also

raised to E-auction by filing WPA 21512 of 2021 by the

writ petitioner which was dismissed by the order dated

11th March, 2022 by permitting the appellant Bank to

take appropriate steps to put up the secured assets for

sale in accordance with law and in terms of the provisions

of the SARFAESI Act, 2002. He has also pointed out that

MAT 419 of 2022 against this order was dismissed by the

Division Bench by the order dated 05.05.2022 finding no

error in the order of the learned Single Judge.

He submits that before the learned Single Judge in

the present case since no opportunity was given to file

affidavit-in-opposition, therefore these facts could not be

placed on record. He has also submitted that the writ

petitioner is also not entitled to get relief as at earlier

three occasions, he had committed default in complying

with conditions of the OTS proposals and in this regard

he has referred to OTS proposals dated 02.03.2019,

14.07.2020 and 25.01.2022 and has submitted that even

the judgment of the Division Bench of the Punjab and

Haryana High Court in CWP No.12953 of 2018 (O & M)

dated 10.03.2022 on that account is distinguishable, but

even the said fact could not be placed before the learned

Single Judge.

Learned counsel for the respondent after arguing for

some time has not disputed that the appellant did not

have the opportunity to place the above facts before the

learned Single Judge. He has agreed for remanding the

MAT 1129 of 2022

matter back to the learned Single Judge for fresh decision

on merit after giving opportunity to the other side to file

affidavit-in-opposition.

Having examined the order of the learned Single

Judge under challenge, we find that though there is a

direction to open the padlock, but the necessary

documents relating to challenge to the order of the

District Magistrate under Section 14 of the SARFAESI

Act, 2002 before the DRT and dismissal of the SA by the

DRT as also the order passed in WPA 21512 of 2021 and

its affirmation by the Division Bench, were not before the

learned Single Judge. These orders require consideration

while examining the prayer for a direction to open the

padlock and to hand over the possession of the secured

asset to the writ petitioner/borrower.

In the present case, since the appellant Bank did not

have any such opportunity to file the affidavit-in-

opposition and place the above documents on record,

therefore we set aside the order of the learned Single

Judge and remit the matter back for fresh decision in

accordance with law after giving an opportunity to the

parties to file the affidavit-in-opposition and affidavit-in-

reply.

Learned counsel for the appellants has also objected

to the maintainability of the writ petition, hence the said

issue is left open.

MAT 1129 of 2022

The writ petition will be decided afresh without being

influenced by any observation made on merit in this

order.

The appeal and connected application are

accordingly disposed of.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties on usual

undertaking.

[Prakash Shrivastava, C.J.]

[Rajarshi Bharadwaj, J.]