Bank vs Milan Changdar
2023 Latest Caselaw 6620 Cal

Form No. J.(2)
Item No.1



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

                           HEARD ON: 29.09.2023

                        DELIVERED ON: 29.09.2023

                                  CORAM:

            THE HON'BLE CHIEF JUSTICE T.S. SIVAGNANAM
                               AND
        THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA

                           I.A. No. CAN 2 of 2023
                                     In.
                            F.M.A. 461 of 2023

                   The General Manager, Punjab National
                     Bank, Zonal Sastra Office & Ors.
                                    Vs.
                             Milan Changdar

Appearance:-

Mr. Ranajit Chowdhury          ...........For the Appellants

Mr. Mani Sankar Chattopadhyay ..........For the Respondent


                                 JUDGMENT

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

1. This intra-Court appeal by the appellants/bank is directed against the

order dated 20th February, 2023 in W.P.A. No.4097 of 2023. The said writ

petition was filed by the respondent/borrower praying for a direction upon

the appellants/bank to permit the respondent to deposit the balance

amount in terms of the agreement entered into between the writ petitioner

and the bank for purchase of a property. The learned Single Bench did not

grant the relief sought for by the petitioner by pointing out that three

months expired on 10th November, 2022 since the confirmation of sale was

on 8th August, 2022 and hence any extension given by the writ petitioner

would be against the 2002 Rules. However, the appellants/bank was

granted liberty to resale the property under Rule 9(5) of the said Rules and

also taking note of the financial constraints of the respondent/writ

petitioner, the appellants/bank was directed to return the payment already

made of Rs. 1.34 crores to the respondent/writ petitioner within a time

frame.

2. Aggrieved by such portion of the order passed in the writ petition, the

appellants/bank has filed the present appeal.

3. We have elaborately heard the learned advocates for the parties. The first

and foremost objection raised by the appellants/bank is as regards the

maintainability of the writ petition. This issue has been well-settled by

several decisions of the Hon'ble Supreme Court and it would be beneficial

to refer to one such decision in the case of Agarwal Tracom Private

Limited v. Punjab National Bank & Ors. reported in (2018) 1 SCC 626,

wherein the Hon'ble Supreme Court held that the writ petition by the

auction-purchaser challenging forfeiture of the deposit money by the

secured creditor is not maintainable as the auction-purchaser has to avail

the alternate remedy provided under the SARFAESI Act. The said decision

will be squarely applicable to the facts of the present case. In this context,

we may also refer to the very recent decision of the Hon'ble Supreme Court

in Authorised Officer, State Bank of India v. C. Natarajan & Anr.

reported in 2023 SCC OnLine SC 510.

4. According to the appellants/bank, the amount has already been forfeited.

According to the respondent/writ petitioner, the same could not have been

done because the time limit has not expired. In any event, these are all

factual issues, which are being disputed by the appellants/bank and

therefore, it is but appropriate for the respondent/writ petitioner to avail

the alternate remedy provided under the provisions of the SARFAESI Act.

5. Therefore, in our view, a direction could not have been issued in the writ

petition to return the amount of Rs. 1.34 crores to the respondent/writ

petitioner.

6. For the above reasons, the appeal is allowed and that portion of the order

passed by the learned Single Bench directing return of the payment already

made by the respondent/writ petitioner to the tune of Rs. 1.34 crores is set

aside and the respondent/writ petitioner is granted liberty to avail the

alternate remedy provided under the provisions of the SARFAESI Act.

7. If such application is filed before the Debts Recovery Tribunal or any other

forum within a period of 45 days from the date of receipt of the server copy

of this order, the said application shall be entertained without reference to

limitation.

8. We make it clear that the merits of the matter have not been gone into and

the respondent/writ petitioner would be entitled to raise all factual and

legal issues before the appropriate forum.

9. With the above observations, the appeal stands allowed to the extent

indicated. Consequently, I.A. No. CAN 2 of 2023 is disposed of.

10. There shall be no order as to costs.

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/A.N. AR(Ct.)