M/S Devdatta Parboiling ... vs Debts Recovery Tribunal
2022 Latest Caselaw 6595 Chatt

                                                                    NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                    Writ Petition (C) No.48 of 2021

                   Order Reserved on : 25.8.2022
                   Order Passed on :    04.11.2022

   Dinesh Chandra Tiwari, son of Shri B.S. Tiwari, aged about 59 years,
   R/o Banspara, Dhamtari, Tahsil and District Dhamtari, Chhattisgarh
                                                           ---- Petitioner
                              versus
1. Presiding Officer, Debts Recovery Tribunal, Cuttack in Charge of
   Debts Recovery Tribunal, Jabalpur, M.P.
2. Bank of Baroda through Branch Manager, Guru Branch Tahsil Gurur,
   District Balod, Chhattisgarh
3. The Authorised Officer, Bank of Baroda, Dhamtari - Balod Road,
   Gurur, Tahsil Gurur, District Balod, Chhattisgarh
4. The District Magistrate/Collector, Collectorate Balod, District Balod,
   Chhattisgarh
5. Mr. Takke Vitan Ravi Kurup, son of Shri T.V. Mohan, Resident of Palli,
   Kumharawand, Jagdalpur, Chhattisgarh
6. Mr. Dinesh Kotwani, son of Shri Kishanchand Kotwani, Resident of
   N.N. - 151 Bramhan Para, Dhamtari, Chhattisgarh
                                                         --- Respondents

                                 and

                  Writ Petition (C) No.2686 of 2022

   M/s Devdatta Parboiling Industries, through Proprietor Shri Dinesh
   Chandra Tiwari, S/o Shri B.S. Tiwari, aged about 61 years, R/o
   Banspara, Dhamtari, Tahsil and District Dhamtari, Chhattisgarh
                                                            ---- Petitioner
                               versus
1. Debts Recovery Tribunal, Jabalpur, M.P.
2. Bank of Baroda through Branch Manager, Gurur Branch, Tahsil Gurur,
   District Balod, Chhattisgarh
3. The Authorised Officer, Bank of Baroda, Dhamtari - Balod Road,
   Gurur, Tahsil Gurur, District Balod, Chhattisgarh
4. The District Magistrate/Collector, Collectorate, Balod, District Balod,
   Chhattisgarh
5. Mr. Takke Vitan Ravi Kurup, S/o Shri T.V. Mohan, R/o Palli,
   Kumharawand, Jagdalpur, District Bastar, Chhattisgarh
6. Mr. Dinesh Kotwani, S/o Shri Kishanchand Kotwani, R/o N.N. - 151,
   Bramhan Para, Dhamtari, District Dhamtari, Chhattisgarh
                                                         --- Respondents
                                                    2




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In Both Cases For Petitioner : Petitioner Dinesh Chandra Tiwari in person For Respondents No.2 & 3 : Shri Ankit Singhal, Advocate For Respondent No.4/State : Shri P. Acharya, Panel Lawyer For Respondent No.5 : Shri Anurag Dayal Shrivastava, Advocate For Respondent No.6 : Ms. Pragya Pandey, Advocate For Respondent No.1 : None

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. ORDER

1. As both the writ petitions are interconnected and common aspects

are arisen for consideration, they are heard and disposed of by this

common order.

2. Writ Petition (C) No.48 of 2021 has been preferred by the Petitioner

being aggrieved by the order dated 16.12.2020 (Annexure P1)

passed by the Debts Recovery Tribunal (henceforth 'the DRT'),

Jabalpur sitting at Cuttack in S.A. No.134 of 2016, whereby the

DRT has dismissed the SA/application moved by the Petitioner.

3. Writ Petition (C) No.2686 of 2022 has been preferred by the

Petitioner being aggrieved by the order dated 19.5.2022 passed by

the DRT, Jabalpur in S.A. No.133 of 2016, whereby the

SA/application moved by the Petitioner has been dismissed by the

DRT.

4. In both the cases, the Petitioner had availed a loan facility from the

Respondent/Bank of Baroda through cash credit and term loan.

However, the Petitioner failed to repay the loan within the due time.

Both the accounts of the Petitioner in both the cases were classified

as Non Performing Asset (henceforth 'the NPA'). In both the loan

cases, property has been mortgaged by the Petitioner for getting

the loan facility. As both the accounts of the Petitioner were

classified as NPA, the Respondent/Bank issued a demand notice

under Section 13(2) of the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act, 2002

(henceforth 'the Act of 2002') and the Petitioner was asked to pay

the remaining dues along with the applicable interest. The

Petitioner did not avail the statutory remedy provided under Section

13(3) of the Act of 2002 and did not make any representation

before the Bank authorities. After the Petitioner's failure to deposit

the amount due with the Respondent/Bank, the Bank issued a

possession notice under Section 13(4) of the Act of 2002 and took

possession of the secured assets of the Petitioner. The Petitioner

filed an application under Section 17 of the Act of 2002 before the

DRT in both the cases. Meanwhile, the Respondent/Bank issued

auction notice in pursuance of Rules 6(2) and 8(6) of the Security

Interest (Enforcement) Rules, 2002 (henceforth 'the Rules of

2002'). Valuation report from approved valuer is also obtained in

pursuance of Rule 8(5) of the Rules of 2002. Residential building

of the Petitioner was auctioned for Rs.13.17 Lakhs against the

reserve price of Rs.12.87 Lakhs. Another secured assets land,

factory and building of the Petitioner were also auctioned for

Rs.69.35 Lakhs. Both the SAs/applications preferred by the

Petitioner have been dismissed by the DRT vide the

aforementioned impugned orders. Hence, these writ petitions by

the Petitioner.

5. Learned Counsel appearing for Respondents 2 and 3 and Learned

Counsel appearing for Respondent 6 submitted that both the writ

petitions are liable to be dismissed on the ground of maintainability

alone. It was submitted that as the Petitioner has alternative

remedy available under Section 18 of the Act of 2002 against the

orders passed by the DRT, these writ petitions moved under Article

226 of the Constitution of India are not maintainable. It was further

submitted that the DRT after providing reasonable opportunity of

hearing to the Petitioner in both the cases has passed the reasoned

orders and, therefore also, these writ petitions under Article 226 of

the Constitution of India are not maintainable.

6. Opposing the above arguments advanced on behalf of

Respondents 2, 3 and 6, Petitioner Dinesh Chandra Tiwari in

person in both the writ petitions submitted that the DRT has passed

the orders without caring the written submission filed by him and

has illegally dismissed the SAs/applications moved by him. As the

opportunity of hearing has not been provided to him and arbitrary

orders have been passed, the present writ petitions under Article

226 of the Constitution of India are maintainable. Reliance has

been placed by him on a judgment passed by the Madras High

Court in The District Collector, Chennai v. Mr. R. Vetri and others

on 4.8.2022 (Review Application No.166 of 2021 in W.P. No.15507

of 2021). The Petitioner also relied on a judgment passed by the

Supreme Court in Ram Kishun v. State of Uttar Pradesh, (2012) 11

SCC 511.

7. Learned Counsel appearing for Respondent 4 and Learned

Counsel appearing for Respondent 5 supported the arguments

raised on behalf of Respondents 2, 3 and 6.

8. I have heard the rival contentions put forth on behalf of the parties

and perused the writ petitions, the impugned orders, the annexures

and other material available with due care.

9. From perusal of the impugned orders dated 16.12.2020 and

19.5.2022 passed by the DRT, it reveals that the Petitioner was

represented by his Counsel and from perusal of the order sheet

dated 13.5.2022 recorded in SA No.133 of 2016, it appears that on

that date also Counsel for the Petitioner was present and with the

consent of both the parties arguments were heard and the order

was passed on 19.5.2022. Thus, it is clear that in SA No.133 of

2016, reasonable opportunity of hearing has been provided to the

Petitioner and the reasoned order has been passed. Likewise, in

SA No.134 of 2016, it also appears from perusal of the impugned

order dated 16.12.2020 that the Petitioner was represented by his

Counsel since beginning. Further, from perusal of paragraphs 5 to

8 of the impugned order dated 16.12.2020, it also appears that the

contention of the Petitioner was duly recorded and discussed by the

DRT and the DRT has passed the reasoned order. Therefore, the

contention of the Petitioner that he has not been given any

opportunity of hearing is not sustainable.

10. In K. Virupaksha v. State of Karnataka, (2020) 4 SCC 440, it was

held by the Supreme Court as under:

"15. The SARFAESI Act is a complete code in itself which provides the procedure to be followed by the secured creditor and also the remedy to the aggrieved parties including the borrower. In such circumstance, as already taken note of by the High Court in writ proceedings, if there is any discrepancy in the manner of classifying the account of the appellants as NPA or in the manner in which the property was valued or was auctioned, DRT is vested with the power to set aside such auction at the stage after the secured creditor invokes the power under Section 13 of the SARFAESI Act. This view is fortified by the decision of this Court in Indian Overseas Bank v. Ashok Saw Mill, (2009) 8 SCC 366 wherein it is held as hereunder: (SCC pp. 375-76, paras 34-37) "34. The provisions of Section 13 enable the secured creditors, such as banks and financial institutions, not only to take possession of the secured assets of the borrower, but also to take over the management of the business of the borrower, including the right to transfer by way of lease, assignment or sale for realising secured assets, subject to the conditions indicated in the two provisos to clause (b) of sub-section (4) of Section 13.

35. In order to prevent misuse of such wide powers and to prevent prejudice being caused to a borrower on account of an error on the part of the banks or financial institutions, certain checks and balances have been introduced in Section 17 which allow any person, including the borrower, aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor, to make an application to the DRT having jurisdiction in the matter within 45 days from the date of such measures having taken for the reliefs indicated in sub-section (3) thereof.

36. The intention of the legislature is, therefore, clear that while the banks and financial institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the DRT with authority after conducting an adjudication into the matter to declare any such action invalid and also to restore possession even though possession may have been made over to the transferee.

37. The consequences of the authority

vested in the DRT under sub-section (3) of Section 17 necessarily implies that the DRT is entitled to question the action taken by the secured creditor and the transactions entered into by virtue of Section 13(4) of the Act. The legislature by including sub- section (3) in Section 17 has gone to the extent of vesting the DRT with authority to even set aside a transaction including sale and to restore possession to the borrower in appropriate cases. Resultantly, the submissions advanced by Mr Gopalan and Mr Altaf Ahmed that the DRT has no jurisdiction to deal with a post-Section 13(4) situation, cannot be accepted." (emphasis supplied)

11. In Phoenix ARC Private Limited v. Vishwa Bharati Vidya Mandir,

2022 SCC OnLine SC 44, it was observed by the Supreme Court

thus:

"43. Applying the law laid down by this Court in the case of Mathew K.C. (supra) to the facts on hand, we are of the opinion that filing of the writ petitions by the borrowers before the High Court under Article 226 of the Constitution of India is an abuse of process of the Court. The writ petitions have been filed against the proposed action to be taken under Section 13(4). As observed hereinabove, even assuming that the communication dated 13.8.2015 was a notice under Section 13(4), in that case also, in view of the statutory, efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petitions. Even the impugned orders passed by the High Court directing to maintain the status quo with respect to the possession of the secured properties on payment of Rs.1 Crore only (in all Rs.3 Crores) is absolutely unjustifiable. The dues are to the extent of approximately Rs.117 Crores. The ad-interim relief has been continued since 2015 and the secured creditor is deprived of proceeding further with the action under the SARFAESI Act. Filing of the writ petition by the borrowers before the High Court is nothing but an abuse of process of Court. It appears that the High Court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons. The High Court ought

to have appreciated that by passing such an interim order, the rights of the secured creditor to recover the amount due and payable have been seriously prejudiced. The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers. The stay granted by the High Court would have serious adverse impact on the financial health of the secured creditor/assignor. Therefore, the High Court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters. In these circumstances, the proceedings before the High Court deserve to be dismissed."

12. Looking to the law laid down by the Supreme Court and considering

the fact that proper opportunity of hearing has been afforded by the

DRT to the Petitioner in both the instant cases, it is held that both

the present writ petitions are not maintainable. The Petitioner has

only remedy available to file an appeal as contained in Section 18

of the Act of 2002.

13. The case laws cited by the Petitioner are not applicable to the

present cases as they are distinguishable on facts.

14. Consequently, both the writ petitions are dismissed with the

aforesaid observations.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal