Page No.# 1/6 vs Idbi Bank Limited And 4 Ors
2021 Latest Caselaw 3497 Gua

                                                                  Page No.# 1/6

GAHC010195912021




                        THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : WP(C)/6246/2021

         PRANAB KUMAR GHOSH AND 2 ORS
         DIRECTOR, GHOSH BROTHERS MOTORS PVT. LTD. HOUSE NO.5, BYE
         LANE-4, MANIK NAGAR ZOO ROAD, GUWAHATI-781005.

         2: GHOSH BROTHERS MOTORS PVT. LTD.

          N.H. 37
          BETKUCHI
          ADJACENT TO DTO OFFICE
          GUWAHATI-781034
          REP. BY PETITIONERS NO. 1 AND 3.

         3: SANDEEP DEY
          DIRECTOR
          GHOSH BROTHERS MOTORS PVT. LTD.
          S/O. MR. NIKHIL RANJAN DEY
          R/O. LAL GANESH
          ODALBAKRA NEAR MODERN ENGLISH SCHOOL
          GUWAHATI
          781036

         VERSUS

         IDBI BANK LIMITED AND 4 ORS
         IDBI TOWER, WTC COMPLEX, CUFFEE PARADE, MUMBAI-400005.

         2:THE DY. GENERAL MANAGER

          IDBI BANK LTD.
          IDBI HOUSE
          44 SHAKESPEARE SARANI KOLKATA-700017.

         3:IDBI BANK LTD.
                                                                                 Page No.# 2/6

             GUWAHATI BRCNAH G.S. ROAD
             GUWAHATI-781005.

            4:THE GENERAL MANAGER AND OPERATIONS

             HEAD OF HONDA CARS INDIA LTD.
             PLOT NO.A1
             SECTOR-40
             41
             SURAJPUR
             KASNA ROAD
             GREATER NOIDA
             INDUSTRIAL DEVELOPMENT AREA
             G.B. NAGAR
             U.P.

            5:THE RECOVERY OFFICER

             DEBT RECOVERY TRIBUNAL
             GUWAHATI-07

Advocate for the Petitioner   : MR. K N CHOUDHURY


Advocate for the Respondent : MR. A GANGULY (r-2)




                                     BEFORE
                   HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

                                          ORDER

16.12.2021

Heard Mr. S. Mitra, learned counsel for the petitioners and Mr. A. Ganguly, learned counsel for the respondent Nos. 1 to 3.

Petitioner No.2 is a registered company and petitioner Nos. 1 and 3 are and its directors. Petitioner No.2 took loan from the respondent bank and it failed to repay the loan within time. The respondent bank in the year 2015 initiated SARFASEI proceeding against the petitioner No.2 and others. In May 2016 respondent bank instituted O.A. No.141/2016 (IDBI Page No.# 3/6

Bank Limited -Vs- M/S. Ghosh Brothers Motors Pvt. Ltd. and others) under Sections 19v(1)

(a) & (b) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 before the Debt Recovery Tribunal, Guwahati (DRT, in short) against the petitioner No.2 and others including petitioner Nos. 1 and 3. By Judgment and Order dated 07.08.2017, the DRT in said O.A. No.141/2016 directed to issue recovery certificate for a sum of Rs. 43,68,32,109.66 against the petitioners with pendentelite and future interest @ 12% per annum with quarterly rests till realisation. Following the same Recovery Certificate was issued in favour of the respondent bank. Thereafter, the Certificate Holder Bank (CHB) i.e. IDBI Bank Limited/respondent initiated recovery proceeding against the Certificate Debtors (CD) i.e. M/s. Ghosh Brothers Motors Pvt. Ltd. and others/ petitioners before the Recovery Officer-II, DRT, Guwahati being DRPC No. 2527/2017 in O.A. No. 141/2016 (IDBI Bank Limited, -Vs- M/S. Ghosh Brothers Motors Pvt. Ltd. and others) . Though said DRPC No. 2527/2017 was fixed on 05.08.2021 but it was adjourned due to restrictions owing to Covid 19 and is fixed on 20.12.2021.

Honda India Cars Ltd. has been paying commission to M/s Spectrum Honda, which is an unit of M/s. Ghosh Brothers Motors Pvt. Ltd . and M/s. Ghosh Brothers Auto Sales Pvt. Ltd. on sales of Honda make vehicle by the said Certificate Debtors (CD)/petitioners. As the recovery certificate against the petitioners (CD) is yet to be satisfied, the respondent Bank being CHB on 29.09.2021 during pendency of said DRPC No. 2527/2017, filed an application being petition No.78/2021 for issuing direction to the Honda Cars Ltd. for depositing the commissions and other payable to M/s Spectrum Honda, unit of M/s. Ghosh Brothers Motors Pvt. Ltd. / M/s. Ghosh Brothers Auto Sales Pvt. Ltd. (CD) in the account of the applicant Bank (DHD).

The concerned Recovery Officer of the DRT, Guwahati on 29.09.2021 passed an order allowing the said petition No.78/2021 of the respondent Bank (CHB) dated 29.09.2021 and issued the following order:

1) The General Manager and Operations Head of Honda Cars Limited Plot No., A1, Sector 40, 41, Surajpur, Kasna Road, Greater Noida Industrial Development Area, G.D. Nagar, UP, is directed to remit the commission amount and other payables directly to IDBI Bank Account No.136655100000116 of Ghosh Brothers Motor Pvt. Ltd. or in Account No.136651100001656 of Ghosh Brothers Auto Page No.# 4/6

Sales Pvt. Ltd.

2) Execute the above direction of remitting of commission amount immediately on receipt of the copy of the order either by mail or by post.

3) CHB is directed to serve a copy of the day's order upon The General Manager and Operations Head of Honda Cars India Limited the by email as also to CDs by speed post.

Fixed on 20.12.2021 for filing report by CHB.

A free copy of the say's order be given to CHB.

Being aggrieved with said order dated 29.09.2021 of the Recovery Officer of the DRT, Guwahati the petitioners have preferred this writ petition stating that the said order was passed without serving any copy to the petitioners and without giving any opportunity of hearing to them and in violation of the provisions of section 29 of the Recovery of Debts and Bankruptcy Act, 1993.

In this regard, Mr. S. Mitra, learned counsel for the petitioners in support of his argument placed the judgment of the Hon'ble Supreme Court of India in the case of Sahara India (Firm), Lucknow Vs. Commissioner Of Income Tax, Central-I , reported in (2008) 14 SCC 151 and Ram Kishun Vs. State of Uttar Pradesh reported in (2012) 11 SCC 511.

Mr. S. Mitra, learned counsel for the petitioners/Certificate Debtors submitted that Section 29 of the said 1993 Act specified that the provisions of Income Tax Act is applicable while recovering any assets from the Certificate Debtor. Mr. Mitra stated that the concerned Recovery Officer of the DRT Guwahati committed illegality in passing the impugned order dated 29.09.2021 as it was passed without following the provisions of Rules of 1962 of the Income Tax and as such, the impugned order dated 29.09.2021 needs to be set aside and quashed.

Mr. A. Ganguly, learned counsel for the respondent bank submitted that petitioners are the Certificate Debtors and huge amounts of public money are to be paid by the petitioners to the respondent Certificate Holder Bank. Mr. Ganguly placed Section 28 of the 1993 Act that relates to 'other modes of recovery' and stated that in terms of the said provisions, the respondent bank submitted its application before the Recovery Officer of the DRT, Guwahati on 29.09.2021 for recovery of a part of the amount payable by the Certificate Debtors, the petitioners of this case.

Page No.# 5/6

Mr. A. Ganguly, learned counsel further placed the provisions of sub-clauses (iii) and

(vii) of sub-Section 3 of Section 28 of the said 1993 Act before the Court, which stipulates as follows:

"(iii) A copy of the notice shall be forwarded to the defendant at his last address known to the Recovery Officer and in the case of a joint account to all the joint holders at their last addresses known to the Recovery Officer.

(vii) The Recovery Officer may, at any time or from time to time, amend or revoke any notice under this sub-section or extend the time for making any payment in pursuance of such notice."

Mr. Ganguly, learned counsel relying on those provisions of sub-Section 3 of Section 28 of the said 1993 Act, submitted that as the matter is fixed on 20.12.2021 before the DRT, Guwahati and the Presiding Officer is in-charge of the DRT, Guwahati, the petitioners can raise all of its grievances before the DRT, Guwahati on the said date.

In this regard, Mr. S. Mitra, learned counsel for the petitioners submitted that the concerned DRT cannot review its order dated 29.09.2021 passed in the said petition No.78/2021 filed by the respondent Bank and as such he submitted that appropriate order needs to be passed by the Writ Court in this regard.

But, Mr. Ganguly, learned counsel for the respondent bank rebutted the said submissions of the learned counsel for the petitioners and placed the provisions of clause (vii) of sub-Section 3 of Section 28 of 1993 Act which stipulates that the Recovery Officer may from time to time amend any notice under its jurisdiction or extend the time for making any payment in pursuance of such notice dated 29.09.2021.

Mr. Ganguly further placed before the Court that in terms of the impugned order dated 29.09.2021 passed by the DRT, M/S Spectrum Honda has already deposited an amount of Rs.12,43,548/- with the respondent bank on 07.12.2021.

After hearing the learned counsels for the parties and considering the decisions of the Hon'ble Apex Court placed by Mr. S. Mitra, learned counsel for the petitioners and the provisions of Section 28 of the said 1993 Act, it is directed that against the impugned order dated 29.09.2021 the petitioners may raise its grievances before the DRT, Guwahati in DRPC Case No. 2527/2017 arising out of OA No. 141/2016 including the impugned order dated Page No.# 6/6

29.09.2021. Needless to say that in the event of any such approach by the petitioners against the impugned order dated 29.09.2021, the concerned Recovery Officer of the DRT, Guwahati shall consider the same in accordance with law.

With the above observation, this writ petition stands disposed of.

JUDGE

Comparing Assistant