Mangal Chand Maji vs The State Of West Bengal & Others
2023 Latest Caselaw 3251 Cal

08.05.2023
Item No. 8.
Court No.6.
   AB
                              M.A.T. 2006 of 2022
                                      With
                               I A CAN 1 of 2023
                               I A CAN 2 of 2023

                               Mangal Chand Maji
                                       Vs
                        The State of West Bengal & Others

                    Mr. S. P. Pahari,
                    Mr. Tapan Kr. Mahapatra ...for the Appellant.

                    Mr. Nilotpal Chatterjee,
                    Mr. Debraj Sahu            ...for the State.

                    Mr. R. Pattanayek ....for the Respondent No.3-6.

Mr. Srijan Nayek, Mr. Biplab Das, Mr. Partha Pal ....for the Respondent No.2.

A judgment and order dated September 6, 2022,

whereby the appellant's writ petition being WPA 14510

of 2022 was dismissed, is under challenge in this

appeal.

The learned Judge did not enter into the merits

of the case. Observing that a statutory alternative

remedy under the Securitisation and Reconstruction of

Financial Assets & Enforcement of Security Interest

Act, 2002, is available to the writ petitioner, the

learned Judge dismissed the writ petition. Hence, this

appeal.

The appellant/writ petitioner is a constituent of

the Cooperative Bank in question. It appears that

moneys having fallen due from the appellant to the

bank, the bank, after informing the appellant, seized

three fishing boats and sold the same to the private

respondents herein. Such a sale was effected sometime

in March, 2021.

In the meantime, however, a Constitution Bench

of the Hon'ble Supreme Court, on May 5, 2020, in the

case of Pandurang Ganpati Chaugule Vs

Vishwasrao Patil Murgud Sahakari Bank Ltd.

reported at (2020)9 SCC 215, held, inter alia, as

follows:

"142.3.(3)(a) The cooperative banks under the State legislation and multi-State cooperative banks are "banks" under Section 2(1)(c) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The recovery is an essential part of banking; as such, the recovery procedure prescribed under Section 13 of the SARFAESI Act, a legislation relatable to Schedule VII List-I Entry 45 to the Constitution of India, is applicable."

In view of the aforesaid, the sale of the three

fishing boats, which had been hypothecated by the

appellant in favour of the Cooperative Bank, without

following due procedure prescribed under the 2002

Act, appears to be illegal.

Learned Advocate for the bank seeks time to

obtain further instructions in the matter.

As requested by learned Advocate for the bank,

let this matter be listed again on May 17, 2023.

In spite of service, nobody appears for the

private respondents. The private respondents shall not

transfer possession or ownership of the three fishing

boats in question, without the leave of this Court.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)