Calcutta High Court (Appellete Side)
Indian Bank & Anr vs Krishna Kamala Kali Agro on 19 September, 2023
Form No. J.(2)
Item No.2
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 19.09.2023
DELIVERED ON: 19.09.2023
CORAM:
THE HON'BLE CHIEF JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T. 1779 of 2023
With
I.A. No. CAN 1 of 2023
Indian Bank & Anr.
Vs.
Krishna Kamala Kali Agro
Products Pvt. Ltd. & Ors.
Appearance:-
Mr. Sakya Sen, Sr. Adv.
Ms. Priyanka Tibrewal
Mr. Siddhartha Sharma
Mr. Rishav Dutt
Mr. A. Kataruka .........for the appellants
Mr. Sk. Md. Galib
Mr. Tamal Taru Panda .........for the State
Mr. Nimish Mishra
Mr. Debjit Mukherjee
Mr. Gaurav Singh .........for the respondent nos. 1 to 4
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, C.J.)
1. This intra-Court appeal by the bank is directed against the order dated 5 th
September, 2023 passed in W.P.A. 21722 of 2023. The respondents/writ
petitioners had filed the writ petition questioning the action initiated by the
appellants/bank in bringing the mortgaged property for sale for recovery of
the outstanding payable by the respondents/writ petitioners.
2. The learned senior advocate appearing for the appellants/bank submitted
that the challenge in the writ petition is not to action initiated by the
appellants/bank under the SARFAESI Act in a substantive manner but it is
only with regard to taking over of possession of the mortgaged asset. The
learned Single Bench has disposed of the writ petition by observing that in
the event the possession has not been taken till 2.12.p.m. on 5 th
September, 2023, the appellants/bank were restrained from taking
possession of the property for four weeks. In the event possession had been
taken prior to the aforementioned time, the learned Single Bench directed
that the appellants/bank shall remain restrained from dealing with,
transferring, alienating and/or encumbering the secured assets, including
the movables therein, in any manner whatsoever also for a period of four
weeks. The aforementioned interim order was subject to any interim orders
that may be passed by the tribunal in an appeal filed by the
respondents/writ petitioners under section 17 of the SARFAESI Act
challenging an order passed by the District Magistrate under section 14 of
the SARFAESI Act dated 17th July, 2019.
3. The reason for the respondents'/writ petitioners' approaching the writ
Court is on the alleged ground that the tribunal is not taking up regular
matters and there is vacancy in the members of the tribunal, consequently,
the respondents/writ petitioners had to approach the learned writ Court.
However, in the impugned order, the learned Single Bench has relegated
the respondents/writ petitioners back to the Debts Recovery Tribunal to
pursue its interim application filed in an appeal before the tribunal
challenging an order passed under section 14 of the SARFAESI Act dated
17th July, 2019.
4. The learned advocate appearing for the appellants submitted that the
interim order, which was granted by the learned tribunal was not extended
beyond 3rd February, 2020 and upto 31st August, 2023 the tribunal was
considering the matters and passing orders and nothing prevented the writ
petitioners from seeking for appropriate protection before the learned
tribunal.
5. Be that as it may, since in the absence of sufficient number of members in
the learned tribunal, the jurisdiction of the cases were placed before the
Debts Recovery Tribunal at Siliguri and this position is said to continue
even as on date. However, this is being disputed by the learned advocate
appearing for the respondents/writ petitioners.
6. The appellants/bank would contend that the possession of the secured
asset has been taken well before the time stipulated in the impugned order.
In any event, there is no challenge made by the respondents/writ
petitioners to the action initiated by the appellants/bank under section
13(4) of the SARFAESI Act and what is challenged is only a consequential
action, namely an order passed under section 14 of the SARFAESI Act.
7. In any event, since the application for stay along with the appeal is pending
before the Debts Recovery Tribunal, in the interregnum, it would not be
appropriate in a writ proceeding to interdict an order or to pass any interim
order pending consideration of the matter by the learned tribunal.
8. Since the sale notification has already been issued and the sale is
scheduled to be conducted on 20th September, 2023, we find no reason to
interdict such proceedings.
9. Accordingly, the appeal stands partly allowed and the order of injunction
granted in the impugned order stands vacated permitting the
appellants/bank to proceed with the auction scheduled to be held on 20 th
September, 2023.
10. Since the application filed by the respondents/writ petitioners praying for
stay of the proceedings pursuant to an order passed under section 14 of
the SARFAESI Act is pending before the Debts Recovery Tribunal-II,
Kolkata and at present since the requisite number of members are not
available in the Debts Recovery Tribunal at Kolkata, we would request the
Debts Recovery Tribunal, Siliguri to take up such application preferably
within a period of ten days from the date on which this order is placed
before the learned tribunal and after hearing the parties, the learned
tribunal shall pass orders on merits and in accordance with law.
11. With the above directions/observations, the appeal stands partly allowed.
Consequently I.A. No. C.A.N. 1 of 2023 is disposed of.
12. 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.)
Raja/PALLAB AR(Ct.)
