Page No.# 1/7 vs The Union Of India And 3 Ors
2025 Latest Caselaw 107 Gua

Gauhati High Court

Page No.# 1/7 vs The Union Of India And 3 Ors on 2 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                  Page No.# 1/7

GAHC010082572019




                                                            2025:GAU-AS:5448

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

                        Case No. : CRP(IO)/110/2019

         RUNUMI GOGOI SAIKIA AND ANR.
         W/O SRI GOLAP GOGOI, R/O GAMES VILLAGE, BLOCK NO. A-6, FLAT NO,.
         102, BORSAJAI, BASISTHA, GUWAHATI-29

         2: GOLAP GOGOI
          S/O LT. B.R.GOGOI
          R/O GAMES VILLAGE
          BLOCK NO. A-6
          FLAT NO
         . 102
          BORSAJAI
          BASISTHA
          GUWAHATI-2

         VERSUS

         THE UNION OF INDIA AND 3 ORS.
         MINISTRY OF FINANCE (BANKING DIVISION), 1ST FLOOR, JEEVANDEEP
         BUILDING, PARLIAMENT STREET, NEW DELHI-1 AND IS REP. ITS
         SECRETARY.

         2:THE DEBTS RECOVERY TRIBUNAL
          SUWARNA BHAWAN
          HOUSE NO. 12
          NEW TOWN PATH G.S.ROAD
          ULUBARI
          GUWAHATI-07
         ASSAM AND IS REP. BY ITS REGISTRAR.

         3:THE ASSETS RECONSTRUCTION COMPANY (INDIA) LTD. (ARCIL)
          HAVING ITS REGISTERED OFFICE AT THE RUBY
          10TH FLOOR
          29 SENAPATI BAPAT MARG
          DADAR (WEST)
                                                                             Page No.# 2/7

            MUMBAI-700028 AND A BRANCH OFFICE AMONGST OTHER PLACES AT
            HOUSE NO. 553
            SOOD VILLA
            BEHING ICICI BANK
            2ND FLOOR
            G.S.ROAD
            CHRISTIAN BASTI
            GUWAHATI-781005
            DIST.-KAMRUP(M)
            ASSAM AND IS REP. BY ITS BRANCH MANAGER

            4:K MUKHERJEE
            THE RECOVERY OFFICER-II
             DEBTS RECOVERY TRIBUNAL
             SUWARNA BHAWAN
             HOUSE NO. 12
             NEW TOWN PATH
             G.S.ROAD
             ULUBARI
             GUWAHATI-7
            ASSAM

Advocate for the Petitioner    : MR. A DAS, MS. M BORDOLOI,MR. N I KHAN,MR S DAS

Advocate for the Respondent : ASSTT.S.G.I., Mukesh Sharma (R-3),MS F RAHMAN (R-3)




                                         BEFORE
                   HON'BLE MR. JUSTICE DEVASHIS BARUAH

Advocate for the petitioner(s)      :    Mr A Das.

Advocate for the respondent(s)      :   Mr M Sharma.

Date of Hearing and Judgment        :    02.05.2025

                              JUDGMENT AND ORDER (ORAL)

Heard Mr A Das, the learned counsel appearing on behalf of the petitioners and Mr M Sharma, the learned counsel appears on behalf of the respondent No. 3.

2. Taking into account that the present proceedings is directed against an order passed Page No.# 3/7

by the respondent No. 4, who passed the said in exercise of his powers under Section 28 of the Recovery of Debts and Bankruptcy Act, 1993 (for short, "the Act of 1993"), the name of respondent No. 4 is struck off.

3. The petitioners herein, have invoked the supervisory jurisdiction of this Court to challenge the order dated 31.01.2019, whereby the learned Recovery Officer, Debts Recovery Tribunal, had attached the mortgaged property described in the Recovery Certificate.

4. The case of the petitioners in short is that the learned Recovery Officer had passed the order dated 31.01.2019, without giving any opportunity to the petitioners and merely, on a prayer being made by the counsel appearing on behalf of the respondent No. 3, who is the Certificate Holder.

5. To ascertain the legality and validity of the order dated 31.01.2019, and the subsequent order of attachment issued on the same date, enclosed as Annexures-XXXIII and XXXIV, this Court finds it relevant to take note of, briefly, the facts infra-

6. The respondent No. 3 had filed an application, being Original Application No. 212/2012, before the Debts Recovery Tribunal, Guwahati (for short, "the learned Tribunal"), seeking a Recovery Certificate for a sum of Rs. 21,08,017.83 (Rupees Twenty-One Lacs Eight Thousand Seventeen and Eighty-Three Paise Only), along with future interest @ 11.75%, till realization with cost charges etc. The learned Tribunal vide a detailed Judgment and Order dated 14.12.2017, issued the Recovery Certificate in favour of the respondent No. 3, for a sum of Rs. 21,08,017.83 against the defendant Nos. 1, 2 and 3, jointly and severally, with pendentilite and future interest @ 10 % per annum, with quarterly rest till realization and the cost of the application.

7. In addition to that, the learned Tribunal also ordered that the difference of interest so calculated on reducing balance on deposit of amount be also reduced from the amount under the certificate and the respondent No. 3 was directed to file revised statement of Page No.# 4/7

account before the learned Recovery Officer. It was also observed that there shall be a charge of the certificate amount, which shall be kept alive on the mortgaged property, till the amount is realized in full, under the certificate.

8. At this stage, it is relevant to take note of that, this charge so created, vide the Judgment and Order dated 14.12.2017, on the mortgaged property, is the property which has been attached, vide the impugned order.

9. The record further reveals that proceedings have been filed by the respondent No. 3, before the learned Tribunal, which is presently pending. On 31.01.2019, the Advocate of the respondent No. 3 filed an application in Original Application No. 212/2012, with the following contents, which are reproduced hereinbelow-

"That the Advocate to the applicant is present today (dated 31:01.2019)

before Your Honour

AND

Further to submit herewith that all the action taken and/or resorted by the Certificate Holder Bank under SARFAESI Act, had been withdrawn and hence, prayed before Your Honour to proceed in the matter as per law

AND

Further to submit herein, that all the OTS proposal of the Judgment Debtors have been rejected by the Certificate Holder, hence, prayed for attachment of the property, as involved in the matter."

10. On the very date, the impugned order was passed, thereby, attaching the mortgaged property and the Branch Head of the respondent No. 3 was authorized on behalf of the learned Tribunal, to take steps for proclamation of attachment, in respect to the attached property. It is under such circumstances, the present proceedings have been filed.

11. The record reveals that after filing of the instant application, this Court vide an Page No.# 5/7

order dated 12.04.2019, stayed the order dated 31.01.2019, until further orders, subject to the condition that, within 10.05.2019, the petitioners would deposit a sum of Rs. 2,50,000/- before the learned Tribunal. The record further reveals that the respondent No. 3, thereupon, has filed an affidavit-in-opposition, raising various preliminary issues, as regards the maintainability of the present application.

12. This Court has duly perused the said affidavit-in-opposition, filed by the respondent No. 3, and there is nothing mentioned that the petitioners were granted opportunity to file any objection to the said application, or that the application so filed, as quoted hereinabove, was in the manner envisaged in the law.

13. This Court further takes note of that during the pendency of the instant proceedings, the petitioners have brought to the notice of this Court that as the recovery proceedings are ongoing, the petitioners have deposited various amounts before the learned Tribunal and the said having been duly adjusted against the Recovery Certificate, so issued, and there are certain amounts pending.

14. The learned counsel appearing on behalf of the petitioners, has also submitted before the respondent No. 3, for a one time settlement, which has not been responded to by the respondent No. 3.

15. This Court has heard the learned counsels appearing on behalf of the parties and given its anxious consideration.

16. This Court finds it relevant to take note of Section 25 of the Act of 1993, which provides the modes of recovery of the debts. The various modes available to the Recovery Officer, includes the attachment and sale of the movable or immovable property of the defendant/the Certificate Debtor.

17. This Court further finds it relevant to take note of Section 28 of the Act of 1993, which provides the other modes available with the Recovery Officer, without prejudice to the modes available under Section 25 of the Act of 1993.

Page No.# 6/7

18. From a perusal of the said provisions, i.e., Section 25 and Section 28 of the Act of 1993, it is apparent that a Recovery Officer has the power to attach the mortgaged property. However, the question involved in the instant proceedings is, as to whether the procedure, by which the Recovery Officer had passed the impugned order, is permissible.

19. It is the specific case of the petitioners that no opportunity was granted to the petitioners before passing the order and the said application was also not in a manner stipulated in the Debts Recovery Tribunal (Procedure) Rules, 1993. There is no rebuttal to the said contentions of the petitioners in the affidavit-in-opposition.

20. This Court, taking into account that on the very day, on which, the application was filed, the order was passed without giving any opportunity to the petitioners, is of the opinion that the impugned order violates the principles of natural justice, which comes within the purview of Article 21 of the Constitution, and as such, this Court interferes with the order dated 31.01.2019, passed by the Recovery Officer, in Original Application No. 212/2012. The order of attachment of the immovable property, accordingly, is also interfered with. Accordingly, Annexures-XXXIII and XXXIV of the instant petition, are set aside and quashed.

21. Before parting with the record, however, this Court finds it relevant to observe that the interference so made by this Court to the order dated 31.01.2019, shall not preclude the learned Recovery Officer, Debts Recovery Tribunal, Guwahati, to pass an order of attachment, in terms with Section 25 (a) of the Act of 1993, or resort to other means available under Sections 25 and 28 of the Act of 1993. However, while doing so, the petitioners have to be put to notice and given a reasonable opportunity.

22. This Court observes that as vide the Judgment and Order dated 14.12.2017, passed in Original Application No. 212/2012, by the learned Tribunal, has charged the mortgaged property, the petitioners herein, shall not transfer, encumber or charge the said property, till disposal of the recovery proceedings.

Page No.# 7/7

23. Revision petition, accordingly, stands disposed of, subject to the observation(s), as made hereinabove.

JUDGE

Comparing Assistant