Tarkeswar Prasad Gupta And Others vs The Union Of India And Others
2023 Latest Caselaw 4459 Cal

AD-15
Ct No.09
24.07.2023
TN
                           WPA No. 1097 of 2023

                      Tarkeswar Prasad Gupta and others
                                    Vs.
                         The Union of India and others


             Mr. Rajdip Roy,
             Mr. Sandip Roy,
             Mr. Shivam Adhikary,
             Mr. Arghya Mullick
                                               .... for the petitioners

             Ms. Ameena Kabir
                                 .... for the respondent nos. 3, 4 & 5

Learned counsel for the petitioners submits that

the petitioners were successful in an auction sale held

by the respondent-Bank. The sale certificate was also

issued to the petitioners, which is annexed to the

present writ petition. Subsequently, however, till date

no possession of the secured assets has been handed

over to the petitioners pursuant to the sale certificate.

Hence, the petitioners seek immediate possession,

alternatively, a refund of the amount deposited by the

petitioners by way of earnest money/consideration.

Learned counsel appearing for the respondent-

Bank submits that the respondent-Bank duly took out

a proceeding under Section 14 of the SARFAESI Act,

2002 (for short "the 2002 Act"). The respondent-Bank

also obtained possession of the immovable property.

However, since the borrower was not removing the

movables but challenged the said proceeding before

the Debts Recovery Tribunal by way of filing an

application and obtained an order of status quo, the

bank's hands were tied since then.

It is further contended that the petitioners have,

in the meantime, been impleaded as parties to the

application filed by the borrower, where the status quo

order has been passed by the Debts Recovery

Tribunal. Hence, it is argued that the relief of the

petitioners lies before the Debts Recovery Tribunal.

In reply, learned counsel for the petitioners

insists that the petitioners have already been waiting

for more than one year after the sale certificate was

issued and, as such, do not want to block their money

further and seek a refund.

Upon consideration of the materials annexed to

the writ petition and the arguments of the parties, as

well as an unreported judgment of this court dated

June 13, 2023 passed in WPO 577 of 2023 (Ashu Dhar

vs. The Assistant General Manager, UCO Bank and

anr.), it is seen that the respondent-bank is justified

in raising the question of maintainability of the writ

petition.

Insofar as the judgment, which has been cited

by the petitioners, is concerned, the same recorded in

the circumstances of the said case, that the

petitioners had purchased the property therein on

April 06, 2020; however, the physical possession of

the property was not handed over till the date of

passing the order by the court on June 13, 2023, that

is, more than four years thereafter. In such

circumstances, it was observed that there was no

justified reason for the bank not to compensate the

petitioner by refunding the principal amount taken by

the bank, along with interest in view of the delay of

more than four years.

However, it is not clear from the said judgment

that a ratio of law was laid down therein. The

observations of this court in the said matter, which

has been cited by the petitioners, were in the context

of the factual premise of the same and do not lay

down a blanket ratio or proposition of law.

Insofar as the present case is concerned, the

petitioners were awarded the sale certificate on May

19, 2022. The bank cannot be said to have sat tight

over the matter, since an application under Section 14

of the 2002 Act was duly filed by the bank for

obtaining possession.

Subsequently, the bank also took possession of

the immovable property but, due to an order of status

quo obtained by the borrower from the Debts Recovery

Tribunal, the bank's hands were tied in regard to the

handing over of possession of the property to the

petitioner.

Hence, it cannot be said in the present case that

any fault can be attributed to the bank, by making it

liable for refunding the amount of consideration paid

by the petitioners, with or without interest, at least till

now. Since the petitioners have already been

impleaded before the tribunal in the proceeding where

the borrower has obtained a status quo order, it would

only be proper if the petitioners approach the tribunal

for an appropriate order from the said forum.

Accordingly, WPA No. 1097 of 2023 is disposed

of with liberty to the petitioners to approach the

concerned tribunal, either in the proceeding filed by

the borrower or in any independent proceeding, urging

the points as raised herein. If so approached, the

tribunal shall decide all questions involved, without

being influenced unduly by any of the observations

made herein.

It is expected that the tribunal shall decide the

application of the petitioners, if so filed, as

expeditiously as possible, preferably within two

months from the date of filing of such application.

There will be no order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)