Mrs. Chaya Bhandari @ Chaya Das & ... vs Kotak Mahindra Bank Limited & Ors
2023 Latest Caselaw 4863 Cal

Form No. J.(2)
Item No.3

           IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                    CIVIL APPELLATE JURISDICTION
                           APPELLATE SIDE

                          HEARD ON: 08.08.2023
                        DELIVERED ON: 08.08.2023
                                 CORAM:
            THE HON'BLE CHIEF JUSTICE T.S. SIVAGNANAM
                               AND
        THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA

                         M.A.T. No. 1482 of 2023
                                  With
                          IA No. CAN 1 of 2023

                  Mrs. Chaya Bhandari @ Chaya Das & Anr.
                                   Vs.
                   Kotak Mahindra Bank Limited & Ors.


Appearance:-

Mr. Kaushik Chandra Gupta
Mr. Subhasis Sen                 ...........for the Appellants

Mr. A. K. Nag
Mr. S. Banerjee
                                 ...........for the State
Mr. Syed Ehtesham Huda
Ms. Niharika Singh
Mr. Ashok Kumar Singh
                                 .............for the Respondent No.3

Mr. Amitabha Ghosh
                                 .............for the Respondent No.8


                               JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, C.J.)

1. This intra-Court appeal has been filed at the instance of the respondent

nos.8 and 9 in the writ petition being, W.P.A. 16237 of 2023 challenging

the order dated 25 th July, 2023. The said writ petition was filed by the 1 st

respondent/bank to implement the order dated 12 th October, 2020 passed

by the District Magistrate under Section 14 of the SARFAESI Act.

2. Though there were submissions made with regard to whether the learned

writ court had determination to hear the matter, ultimately the writ petition

came to be disposed of by issuing directions to implement the order passed

by the District Magistrate under Section 14 of the SARFAESI Act.

3. The appellants, who were impleaded as respondent nos.8 and 10 in the writ

petition, claimed to be co-sharers of the property, which was the subject-

matter of mortgage. The grievance of the appellants is that the order

passed by the District Magistrate is well beyond the period of limitation

stipulated under Section 14 of the Act as the application, which was filed

by the appellants/bank under Section 14 of the Act is dated 5 th December,

2019 but the District Magistrate has passed the order on 12 th October,

2020, which is beyond the period of limitation prescribed under the statute.

Therefore, it is submitted that the order cannot be implemented.

4. Though the submission is an arguable issue, in this intra-Court appeal we

cannot consider the correctness of such submission as the writ petition

was filed by the 1st respondent/bank seeking for implementation of the

order passed by the District Magistrate under Section 14 of the SARFAESI

Act and in terms of the scheme of the SARFAESI Act, if the appellants are

aggrieved by such an order, the appropriate forum before which the

correctness of the order should have been questioned is the Debts Recovery

Tribunal and not in a writ proceeding. Precisely, for this reason the learned

Single Bench while disposing of the writ petition by the impugned order has

made an observation that nothing in the order will preclude the borrower

and/or the private respondent nos.8 and 10 (appellants herein) to

approach the concerned Tribunal under Section 17 of the SARFAESI Act to

ventilate their respective grievances with regard to action taken under the

SARFAESI Act. Therefore, it is for the appellants to pursue such a remedy

taking advantage of the observations made by the learned Single Bench

while disposing of the writ petition by passing the impugned order.

5. The learned advocate appearing for the appellants would contend that

forcefully the 1st respondent/bank has taken possession of the property.

So far as the prayer for restitution is concerned, in this intra-Court appeal

such a prayer cannot be considered. However, it will be well open to the

appellants to approach the Debts Recovery Tribunal for necessary relief.

6. The learned advocate appearing for the appellants submitted that at this

juncture if the appellants are to approach the Debts Recovery Tribunal,

they may be non-suited on the ground of limitation. All that this Court can

observe is that while computing the period of limitation for filing of an

application or an appeal before the Debts Recovery Tribunal, the period

during which the writ petition was pending and the period during which

this appeal was pending till the receipt of the server copy of this judgment,

the limitation should be computed by the learned Tribunal accordingly.

7. Thus, we find at the instance of the appellants, the order impugned cannot

be interfered with.

8. Accordingly, the appeal and the connected application are dismissed with

the aforesaid observations. We make it clear that in the event the

appellants file an appeal or an application before the Debts Recovery

Tribunal, the same shall be decided on merits and in accordance with law

uninfluenced by any observation made by us in this judgment.

9. No costs.

10. It has been pointed out that in the memo of appeal as well as in the

application being, IA No. CAN 1 of 2023, which has been filed in connection

with MAT 1482 of 2023 through inadvertence the concerned department

has recorded the same to have been filed in connection with MAT 1452 of

2023. The concerned department is directed to rectify the said mistake.

11. Urgent photostat certified copy of this order, if applied for, be furnished to

the parties expeditiously upon compliance of all legal formalities.

(T.S. SIVAGNANAM) CHIEF JUSTICE I agree.

(HIRANMAY BHATTACHARYYA, J.)

Pallab, K.S. AR(Ct.)