Calcutta High Court
M/S Kavita Marketing Pvt Ltd vs State Bank Of India And Ors on 26 September, 2023
OD-12 ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WPO/1609/2023
M/S KAVITA MARKETING PVT LTD
VS
STATE BANK OF INDIA AND ORS
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date : 26th September, 2023
Appearance:
Mr. Suddhasatva Banerjee, Adv.
Ms. Sananda Ganguly, Adv.
Mr. S. Roy, Adv.
Mr. Akankha Mukherjee, Adv.
... for the petitioner.
Mr. Anirban Pramanik, Adv.
Mr. P. Nath, Adv.
... for the respondent.
The Court:- Affidavit of service filed in court today be kept on record.
Learned Counsel for the petitioner argues that the petitioner, as
guarantor for a particular loan, has repaid the entire amount as enumerated
to be due from the petitioner by the respondent no.2 itself. Learned Counsel
places reliance on the documents annexed at pages 107, 110 and 111 of the
writ petition in support of such repayment.
It is noteworthy that the notice under Section 13(2) of the SARFAESI
Act issued by the State Bank of India annexed at page 108 clearly
enumerates the outstanding liabilities of the petitioner as guarantor at
Rs.4,71,38,280.27 p., which is the exact amount repaid by the petitioner in
three tranches.
As such, it is contended that the petitioner is entitled to the return of
the title deeds in respect of the secured assets of the petitioner which are
still lying with the petitioner. It is further contended by the petitioner that
the account in question was admittedly marked as NPA (Non Performing
Asset) as long back as on October 29, 2016. Hence, in any event, the steps
now sought to be taken by the petitioner for recovering the money are time-
barred.
Learned Counsel for the petitioner places reliance on a judgment of a
Division Bench of this Court in Debasree Das Vs. State of West Bengal &
Ors. reported at (2011)1 CHN 10 where the Division Bench observed inter
alia that if it appears on the face of the defence taken by the bank that there
was no valid encumbrances created over the property in question at the
instance of the writ petitioner or his predecessor in favour of the bank to
grant relief to the writ petitioner, the court is to reject the defence of the
bank that the writ petitioner has alternative remedy under Section 17 of the
Act
It is further argued that at the juncture of issuance of notice under
Section 13(2) of the SARFAESI Act, no alternative remedy is available within
the contemplation of Section 17 of the said Act.
Learned Counsel for the respondent no.2 bank submits that the
respondent no.1 has been erroneously impleaded as a party since it has
nothing to do with the present dispute. Secondly, the writ petition is bad for
non-joinder of the borrower as a party. Thirdly, it is argued that the
petitioner has actually not repaid the amounts as enumerated in the notice
under Section 13(2) dated January 18, 2018, issued by the bank and
annexed at page 108 of the writ petition.
Upon considering the arguments of the parties, it transpires that the
objection as to maintainability of the writ petition cannot be accepted, being
not tenable in the eye of law.
The language of Section 17 of the SARFAESI Act, 2002 clearly specifies
that an application under the said provision can only be made by the
borrower or any affected party once measures are taken under Section 13(4)
of the said Act. The factual matrix in the present case having not reached
that stage as yet, since the petitioner has challenged a notice under Section
13(2) of the said Act, it cannot be said that there is an equally efficacious
alternative remedy available to the petitioner. Significantly, it transpires, at
least from the documents annexed to the writ petition, that the petitioner
fully repaid the amount due from the petitioner in lieu of the loan dues, as
quantified by the bank itself in its notice under Section 13(2) annexed at
page 108.
It is for the same repaid loan that the bank now renews its endeavor to
extract a further recovery from the petitioner by way of issuance of a
subsequent Section 13(2) notice. Hence, ex facie the notice under Section
13(2) issued by the bank to the petitioner is de hors the law and fit to be set
aside. If the said Section 13(2) notice is set aside, the only logical corollary
will be that the bank should be directed to return the title deeds of the
petitioner lying with the bank.
However, at this juncture, since learned Counsel for the respondent
no.2 seeks a days' time to take instructions from his client as to whether the
repayments as depicted in the writ petition were actually done by the
petitioner, the matter is adjourned for such purpose for a day, till tomorrow.
It is made clear that the objection as to non-joinder of the borrower as a
necessary party is also turned down since in view of the nature of the
present dispute, which is raised by petitioner in its capacity as the
guarantor who has repaid its own liabilities regarding the loan, the borrower
is neither a necessary nor a proper party as the present dispute is entirely
between the petitioner and the respondent no.2 bank. Insofar as mis-
joinder is concerned, it is well settled that mere mis-joinder cannot vitiate
the maintainability of any legal action. As such, even if the respondent no.1
is not a necessary party, the outcome of the writ petition does not hinge on
such mis-joinder of the respondent no.1.
Be that as it may, let the matter be listed tomorrow under the heading
'To Be Mentioned' for finally concluding the matter.
(SABYASACHI BHATTACHARYYA, J.)
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