Mrs. Sangita Maity vs Indian Bank & Ors
2022 Latest Caselaw 83 Cal

    72
14.01.2022
 Ct. No.13.
    b.das



                                W.P.A. 21010 of 2021

                                 (Via Video Conference)


                                 Mrs. Sangita Maity
                                         Vs.
                                 Indian Bank & Ors.



                  Mr. Suddhasatva Banerjee       ...for the petitioner

                  Mr. Om Narayan Rai       ...for the Indian Bank.

                  Mr. Ranjan Kr. Kali
                  Mr. Debjit Mukherjee
                  Mr. Mitul Chakraborty
                                   ...for respondent Nos.3 to 6.

The writ petitioner, challenges an order of the Debts

Recovery Tribunal under Section 17 of the SARFAESI Act,

2002 in SA 171 of 2020 being order dated 15 th November,

2021.

By the impugned order a sale confirmed in favour of

the writ petitioner by the authorized officer of the Indian

Bank under Section 13(4) read with Rule 8 of the Security

Interest Enforcement Rules 2002, was set aside. The

DRT has held that the mandatory requirement of Rule

8(6) of the aforesaid Rules of 2002, stipulating 15 days

notice, prior to the publication of sale notice was not

complied with.

Counsel for the petitioner argued that his client had

participated in the auction sale that was held pursuant to

the 7th sale notice. Six earlier notices had failed.

Repeated questions by this Court to Mr. Kali, learned

counsel for the borrower whether his client was ready

with sums due to the bank since physical possession,

have not been answered.

The borrower has also challenged the maintainability

of the writ petition on another ground. The impugned sale

has been challenged under Section 227 of the

Constitution filed by the petitioner is listed before a co-

ordinate Bench. Hence the instant petition should not be

entertained under Article 226. It is submitted that the

petitioners are guilty of forum shopping.

Counsel for the Bank, Mr. Om Narayan Rai, supports

the prayers of the writ petitioner/auction purchaser. It is

submitted that as many as six attempts have been made

by the authorised officer of the bank to effect sale or

realize the secured creditors but in vain. The borrower

has on the pretext or the other frustrated the recovery

process of the bank.

This Court notes the decision of the Supreme Court

in SLP No. (c) No.10911 of 2021 being order dated 16 th

December, 2021, where it was directed by the Hon'ble

Supreme Court that the High Court should entertain

matters falling within the jurisdiction of DRT and DRAT's

under Article 226 of the Constitution of India as a stop

gap measure.

The writ petition is thus entertained and this Court

is of the view that the balance of convenience is in favour

of staying the order impugned.

Admittedly, the borrower has not been able to repay

the bank's dues to a substantial period of time since the

year 2015. The account is non-performing asset since

2015. There have been seven attempts to put up the

secured assets for sale. If the borrower has not been able

to repay the dues of the bank or any part or position

thereof despite seven notices of sale and a lapse of 5

years, it is unlikely that he would be able to so repay it 15

day's notice was given before the sale. The provisions of

the Rule of 2002 must be given a purposive interpretation

in the facts of each case.

As for the second objection, this Court is of the view

that a writ petition under Article 226 of the Constitution

can be maintained despite a pending application under

Article 227. The petitioner has undertaken to with draw

the same at the first available opportunity.

In those circumstances, the sale cannot be faulted

for want of the 15 day's of notice. The impugned

judgment and order shall remain stayed. The writ

petitioner shall however be restrained from in any way

dealing with or disposing of the property in question until

disposal of the writ petition. Any construction or addition

or alternation made by the writ petitioner on the said

property shall abide by the result of the writ petition.

Let Affidavit-in-Opposition be filed within two weeks

from date. Reply, if any, be filed within one week

thereafter.

Let the matter go out of the list with liberty to

mention after completion of periods.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance of the requisite formalities.

(Rajasekhar Mantha, J.)