Gujarat High Court
Ajay Hargovindas Jobanputa vs The Authorized Officer, Rajkot ... on 5 February, 2021
Bench: Vipul M. Pancholi
C/SCA/5416/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5416 of 2020
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AJAY HARGOVINDAS JOBANPUTA
Versus
THE AUTHORIZED OFFICER, RAJKOT NAGRIK SAHAKARI BANK
==========================================================
Appearance:
MS PANDIT FOR MR ADITYA A GUPTA(7875) for the
Petitioner(s) No. 1,2,3
MOHIT A GUPTA(8967) for the Petitioner(s) No. 1,2,3
MR AR GUPTA(1262) for the Petitioner(s) No. 1,2,3
MR JR SHAH(762) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 05/02/2021
ORAL ORDER
1. This petition is filed under Articles 226 and 227
of the Constitution of India in which the petitioners
have prayed for the following relief/s:
"(a) YOUR LORDSHIPS BE PLEASED to pass a writ
of certiorari, order or any appropriate writ,
order or direction to quash and set aside the
demand notice dated 13.07.2009 issued by the
Respondent as being without jurisdiction,
illegal and in breach of the provisions of the
SARFAESI Act, in the interest of justice.
(b) YOUR LORDSHIPS BE PLEASED to pass a writ
of certiorari, order or any appropriate writ,
order or direction to quash the impugned order
dated 19.09.2019 passed in SA No.409 of 2019 by
the Ld. Presiding Officer, DRTII at Ahmedabad
in the interest of justice.
(c) YOUR LORDSHIPS BE PLEASED to stay the
action of the demand notice dated 13.07.2009
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issued by the Respondent bank under the
provisions of the SARFAESI Act, 2002 and all
subsequent steps pending admission and final
disposal of the petition.
(d) YOUR LORDSHIPS BE PLEASED to pass such
other and further orders, which may be deemed
fit in the interest of justice."
2. Heard learned advocate Ms. Pandit for learned
advocate Mr. A.R.Gupta for the petitioners and learned
advocate Mr. Janak Shah for the respondent.
3. The factual matrix of the present case is as
under:
3.1. It is the case of the petitioners that respondent
bank had sanctioned credit facilities worth Rs.4.25
crores in favour of M/S. Saurashtra Ginning & Pressing
- a partnership firm in the year 2008. It is stated
that the petitioners are alleged guarantors/mortgagors
of the credit facilities granted by the respondent
bank.
3.2. It is further stated that the respondent - bank
issued Demand Notice under Section 13(2) of the
Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002
(hereinafter referred to as the 'Act' for short) on
13.07.2009 to the petitioner Nos. 1 and 2, as it is
alleged that the principal borrower had defaulted in
repayment of loan. As per the said Demand Notice,
petitioner Nos. 1 and 2 were asked to pay total amount
of Rs.4,48,76,670/. It is stated that the petitioner
No.3 has not received such Demand Notice under Section
C/SCA/5416/2020 ORDER
13(2) of the Act from the respondent bank.
3.3. It is also stated that as per the knowledge of the
petitioners, the respondent bank took possession of
some of the properties of the principal borrower in the
year 20092010 and auctioned the same in the year 2018
and as per the information of the petitioners,
aggregate amount of Rs.4,33,00,000/ has been realized
by the bank.
3.4. Petitioners have further stated that after a
period of 9 years from the issuance of the Demand
Notice, the respondent bank took symbolic possession of
the remaining properties on 15.12.2018 and thereafter
respondent bank filed an application under Section 14
of the Act before the District Magistrate, Morbi in
January, 2019. It is stated that on 06.07.2019, the
District Magistrate allowed the said application. The
petitioners challenged the order passed by the District
Magistrate by filing Securitization Application No.409
of 2019. It was contended in the said application that
no Demand Notice was issued to the petitioner No.3 and
therefore the securitization action initiated under the
Act is illegal and unsustainable. It was also contended
that the Demand Notice must be issued to all the
borrowers as defined under Section 2(f) of the Act,
which also includes mortgagors/guarantors. It is
further stated that the Debt Recovery Tribunal (DRT)
quashed and set aside the order dated 19.09.2019 passed
by the District Magistrate. However, the other
contentions of the petitioners were not accepted and
C/SCA/5416/2020 ORDER
therefore petitioners have filed the present petition
challenging the aforesaid order dated 19.09.2019 passed
by the DRT in Securitization Application No.409 of
2019.
4. Learned advocate Ms. Pandit appearing for the
petitioners mainly contended that there is violation of
provisions contained in Section 13(2) of the Act.
Learned advocate for the petitioners has referred the
Demand Notices issued by the respondent bank and
thereafter submitted that in the said Demand Notices
issued by the respondent bank, no details are given. It
is only stated in the said Demand Notices that the
borrowers and guarantors are liable to pay outstanding
dues of Rs.4,48,76,670/ as on 30.06.2009. Learned
advocate for the petitioners has, at this stage, placed
reliance upon the order dated 14.11.2019 passed by the
Coordinate Bench of this Court in Special Civil
Application No.19918 of 2019, and more particularly,
referred to and relied on paragraph 7.1 to 7.3 of the
said order.
4.1. After referring to the same, it is contended that
notice issued under Section 13(2) of the Act shall give
details of the amount payable by the borrowers.
4.2. Learned advocate for the petitioners also relied
on the decision of the Hon'ble Supreme Court in the
case of Mathew Varghese v. M. Amritha Kumar and others,
reported in (2014) 5 SCC 610, and more particularly,
observations made in para 42 and 43 of the said
C/SCA/5416/2020 ORDER
judgment.
4.3. Learned advocate for the petitioners would
thereafter submit that no Demand Notice was issued to
the petitioner No.3, who is guarantor/mortgagor of one
of the properties and therefore when the Demand Notice
was not issued to the petitioner No.3 under Section
13(2) of the Act, the action initiated by the
respondent bank under the provisions of the Act is
liable to be set aside.
4.4. Learned advocate for the petitioners referred to
the provisions contained in Sections 2(f), 13(2) and
13(3) of the Act as well as Rules 3(1) and 3(4) of the
Security Interest (Enforcement) Rules, 2002
(hereinafter referred to as the 'Rules' for short).
After referring to the aforesaid provisions, it is
submitted that the word "borrower" includes guarantor
as well as mortgagor and therefore Demand Notice is
required to be issued to the mortgagor and guarantor
also.
4.5. Learned advocate for the petitioners thereafter
contended that the DRT has committed an error while
observing in the impugned order that after the issuance
of the Demand Notice and initiation of the
securitization process, applicants/borrowers -
petitioners approached the bank for concession and bank
granted concession and allowed the applicants/borrowers
to dispose of certain properties and therefore once the
concession is availed by the petitioners, it is not
C/SCA/5416/2020 ORDER
open for them to agitate at this stage and it can be
said that the petitioners have waived off the rights.
Learned advocate for the petitioners, therefore, urged
that impugned order passed by the DRT be quashed and
set aside and this Court may declare that the
initiation of the process by the respondent bank under
the Act is vitiated and therefore the respondent bank
be restrained from taking over the possession of the
property in question.
5. On the other hand, learned advocate Mr. Janak Shah
appearing for the respondent bank has vehemently
opposed this petition. It is contended that all the
petitioners have received the Demand Notice issued
under Section 13(2) of the Act as the partners of the
original borrower i.e. M/S. Saurashtra Ginning &
Pressing. Learned advocate Mr. Shah has referred to the
Demand Notice, copy of which is placed on record at
page 56. Thereafter, learned advocate Mr. Shah has
referred to the affidavitinreply filed by the
respondent bank, copy of which is placed on record at
page 100 of the compilation. It is submitted that after
receipt of the Demand Notice issued under Section 13(2)
of the Act, all the three petitioners herein filed an
affidavit, copy of which is placed on record at page
111 of the compilation on 22.10.2009. It is stated in
the said affidavit that they have handed over the
symbolic possession of the properties stated in the
Demand Notice hence 20 days time be given to them so
that they can shift their goods from the premises in
question and handover the vacant possession of the
C/SCA/5416/2020 ORDER
properties in question. It is submitted that all the
three petitioners have signed as partners of the said
firm and two other persons have signed as guarantors
viz. Mahesh H. Jobanputra and Ajay H. Jobanputra. Thus,
learned advocate Mr. Shah, from the aforesaid document,
submitted that petitioner No.3 is not a guarantor, as
contended by learned advocate for the petitioners.
5.1. Learned advocate Mr. Shah would thereafter submit
that the partnership firm - original borrower challenged
the initiation of proceedings under the Act by the
respondent bank by filing Securitization Application
before the DRT in the year 2012. However, there was delay
in filing the said application and therefore Misc. Civil
Application No.60 of 2012 was filed. It is further
submitted that the said application came to be
dismissed for default for want of prosecution and
therefore the borrower/partnership firm filed
Restoration Application in the year 2015 before the
DRT. It is submitted that the said application is still
pending.
5.2. Learned advocate Mr. Shah thereafter pointed out
that, respondent bank has sold property Nos. A, B and E
mentioned in the Demand Notice dated 13.07.2009 in the
year 2018. Thereafter, property mentioned at D in the
said Demand Notice is also sold by way of auction and
now at present the dispute is with regard to the
properties mentioned at C as per the Demand Notice. It
is submitted that the respondent bank intends to take
the possession of the said property and therefore the
C/SCA/5416/2020 ORDER
Mamlatdar has issued notice to the petitioners for
handing over the possession of the said property.
5.3. At this stage, it is pointed out that in the
S.A.No.409 of 2019 filed by the petitioners, the DRT
quashed and set aside the order passed by the District
Magistrate and thereafter as permitted by DRT, the
respondent bank once again filed fresh application
under Section 14 of the Act before the District
Magistrate. Thereafter, in the year 2020, the District
Magistrate has, once again, passed an order on
08.01.2020. Against the said order, petitioners have
also filed Securitization Application No.109 of 2020
before the DRT. The said Securitization Application
No.109 of 2020 has been dismissed by DRT vide order
dated 02.03.2020. It is, therefore, submitted that this
Court may not entertain the present petition.
5.4. Learned advocate Mr. Shah has also submitted that
the petitioners initially filed an appeal under Section
18 of the Act before the Debt Recovery Appellate
Tribunal challenging the impugned order. However,
present petition is filed on the ground that the member
of the Appellate Authority is not available and
subsequently the said appeal is withdrawn by the
petitioners. Therefore, when there is alternative
remedy available with the petitioners, this petition
may not be entertained.
5.5. It is also contended that after issuance of Demand
Notice under Section 13(2) of the Act, the petitioners
have filed an affidavit as contended earlier and
C/SCA/5416/2020 ORDER
thereafter took certain concession from the respondent
bank and thereby the petitioners have waived their
alleged right. At this stage, it is also submitted that
looking to the conduct of the petitioners, this Court
may not entertain the present petition.
6. Having heard learned advocates appearing for the
parties and having gone through the material placed on
record, it would emerge that the principal borrower
M/S. Saurashtra Ginning & Pressing, partnership firm,
took credit facilities from the respondent bank worth
Rs.4.25 crores in the year 2008. Petitioners are
partners of the said partnership firm. The respondent
bank issued Demand Notice under Section 13(2) of the
Act on 13.07.2009 to the borrower as well as
guarantors. From the record, it appears that Demand
Notice is placed on record at page 56 of the
compilation. The said notice was issued to the
partnership firm and the copy was sent to all the
partners i.e. the present petitioners. From the
affidavitinreply filed by the respondent bank and the
documents placed along with the same, it is revealed
that after the receipt of the said notice, all the
petitioners submitted an affidavit and informed to the
respondent bank that symbolic possession of the
properties in question has been taken over by the bank.
However, it was requested that 20 days time be granted
so that the petitioners can shift the goods lying in
the said premises and thereafter vacant physical
possession of the properties in question can be handed
over. If the said affidavit is carefully seen, it is
revealed that the said affidavit is signed by all the
C/SCA/5416/2020 ORDER
petitioners as partners. From the said document, it is
further revealed that there are two guarantors viz.
Mahesh H. Jobanputra and Ajay H. Jobanputra. Thus, from
the documents placed on record, it is clear that
petitioner No.3 is not a guarantor, as contended by
learned advocate for the petitioners. From the Demand
Notice placed on record, it is further revealed that
separate notices were issued to two guarantors viz.
Ajay Hargovinddas Jobanputra and Mahesh Hargovinddas
Jobanputra. Notice was also issued to another guarantor
viz. M/S. Saurashtra Industries.
7. At this stage, it is required to be noted that
learned advocate appearing for the petitioners
submitted that one of the properties of the petitioner
No.3 was mortgaged with the respondent bank at the time
of availing loan by the partnership firm and therefore
notice is also required to be issued to the petitioner
as mortgagor. However, from the Demand Notice issued on
13.07.2009, copy of which is placed on record at page
56 of the compilation, it is revealed that property
mentioned at Serial No.E which was mortgaged with the
bank was in the name of M/S. Saurashtra Ginning &
Pressing i.e. the borrower and the present petitioners
are partners of the said borrower partnership firm. The
said notice is issued to all the petitioners as
partners of the said partnership firm which can be seen
from page 57 of the compilation.
8. Thus, the contention raised by learned advocate
for the petitioners that no notice was issued to the
petitioner as guarantor/mortgagor is misconceived. In
C/SCA/5416/2020 ORDER
fact the petitioner No.3 is served with the Demand
Notice and was aware about initiation of proceedings by
the respondent bank under the Act and therefore
affidavit was filed by all the three partners as stated
hereinabove.
9. The petitioners have raised another contention
that in the Demand Notice dated 13.07.2009 issued under
Section 13(2) of the Act, no details are provided with
regard to the outstanding amount. It is only stated
that outstanding amount is Rs.4,48,76,670/ and
therefore initiation of the proceedings on the basis of
the said Demand Notice is vitiated. According to this
Court, the said contention is also misconceived. It is
pertinent to note that after the receipt of the said
notice, the petitioners have filed an affidavit as
stated hereinabove and thereafter the petitioners
requested the respondent bank to grant certain
concession and the respondent bank has granted such
concession as requested by the petitioners. Thus, when
the petitioners have accepted the said Demand Notice in
the year 2009 and thereafter availed the concession
from the respondent bank, as observed by DRT, it is not
open for the petitioners to raise the aforesaid
contention for the first time in the year 2019 when
Securitization Application is filed. Thus, in the facts
and circumstances of the present case, it can be said
that the contention raised by the petitioners is
nothing but an afterthought and therefore the DRT has
rightly not accepted the said contention by observing
that the petitioners have waived off their rights, as
they have availed the concession from the respondent
C/SCA/5416/2020 ORDER
bank.
10. At this stage, this Court would like to refer to
the order dated 14.11.2019 passed by the Coordinate
Bench of this Court in Special Civil Application
No.19918 of 2019. In the said order, this Court
observed in para 7.1 to 7.3 as under:
"7.1 Reading subsection 3 of Section 13 makes
it clear that a notice under Subsection 2
shall give details of the amount payable by
the borrower. If Ms.Lodha's submission were
to be accepted, then the word "shall give
details" would be rendered negatory.
Therefore, to suggest that notice should only
give the final figure, in my opinion, is not
in accordance with the provisions of Section
13(2) of the Act. The recovery Tribunal has
considered this issue in para 9 of the
judgment, which reads as under:
"9. Respondent Bank issued Demand Notice
dated 29/12/2014 under Section 13(2) of
SARFAESI Act 2002 for an amount of
Rs.9,11,99,276.92 outstanding in Cash
Credit Limit and an amount of Rs.81, 19,
651/ outstanding in Term Loan Account.
Thus respondent Bank has claimed a total
amount of Rs.9,93,18,927.92/ outstanding
as on 30/11.2014. As per Demand Notice,
account has been classified as Non
Performing Asset on 27th December, 2014
as per guidelines issues by Reserve Bank
of India. Respondent Bank has placed on
record copy of account pertaining to each
account. As per Demand Notice, the
contractual rate of interest is claimed
from 01/12/2014 until payment in full is
made within a period of 60 days. However,
Demand Notice is silent regarding rate of
interest charged in each of the accounts
before 01/12/2014. The Demand Notice only
mention regarding facility advanced,
limit sanctioned and balance outstanding
as on 30/11/2014. Applicants have placed
on record copy of sanction letter dated
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31st August, 2012 wherein interest agreed
by the applicants by acceptance of
sanction letter for Cash Credit Limit, is
base rate plus 4.25% subject to change
from time to time as per RBI/HO
guidelines and credit risk rating. The
interest is charged in the account on
monthly basis. However, it is nowhere
mentioned in the sanction letter whether
interest will be charged on the yearly
basis, quarterly basis or monthly basis.
Applicants have requested vide letter
dated 25th October, 2013 to provide them
details with regard to interest
calculation and reduction in interest
rate after issuance of ICRA Certification
dated 26/07/2012. It is further stated
that the applicants had been informed
that the applicants had been informed
that the interest rate will be subsidized
after issuance of ICRA Certificate.
Applicants have raised objection to
Demand Notice dated 31/03/2014 through
their Advocate Mr. Gaurav A. Bade that
respondent Bank had assured to decrease
rate of interest. Respondent Bank through
its Advocate gave reply to the said legal
notice vide reply dated 10th March, 2015
stating that interpretation regarding
rate of interest is not acceptable to
respondent Bank. Respondent Bank had an
opportunity to explain to the applicants
regarding rate of interest agreed as well
as charged by the respondent Bank.
However, respondent Bank simply denied
contention of the applicants. The rate of
interest charged in the account appears
to be inclusive of penal interest and
same is capitalized because as per
Statement of Account, rate of interest is
charged @ 15.75% p.a. With monthly rests.
It is an undisputed fact that the Banks
or financial institutions are entitled to
charge penal interest but the same could
not be capitalized as held by Hon'ble
Apex Court in case of Central Bank of
India V/s. Ravindra and others (2002) 1
C/SCA/5416/2020 ORDER
SCC 367, wherein Hon'ble Apex Court has
held that "though interest can be
capitalized on analogy that interest
falling due and remaining unpaid,
partakes the character of advance on that
date, yet penal interest, which is
charged by way of penalty for nonpayment
cannot be capitalized. Further interest
i.e. interest on interest, whether
simple, compound or penal, cannot be
claimed on the amount of penal interest.
Penal interest cannot be capitalized. It
will be opposed to public Policy."
7.2 The necessity to give the details of the
amount becomes more important because even
though the agreements were entered into and
may be that the respondent borrower was aware
of the rate of interest that was needed to be
charged, the terms and conditions of the
agreements make it abundantly clear that the
rate of interest that the base rate are
subject to change by the bank from time to
time and the revised rate of interest shall
accordingly be charged from time to time in
the said account. These stands would
obviously make it incumbent upon the bank
while issuing notice under Section 13(2) of
the Act to give details of the amount payable
under a notice under Section 13(2). The
Tribunal while considering the issue at hand
has relied on a few decisions.
7.3 In the case of Tirupati Storage and
Allied Pvt Ltd., vs. The United Commercial
Bank, Kolkata, reported in 2012 (4) PLJR 748,
the Patna High Court has considered the issue
under Section 13(2) in the SARFAESI Act in
para 15 of the judgment and specifically held
that by using the word "details" before the
expression "of the amount payable", the
legislature clearly intended that in the
notice under subsection 2, the details of
calculation of principal and interest must be
mentioned. The relevant para 15 of the said
judgment read as under:
"15. Coming to the question no.(v) above,
C/SCA/5416/2020 ORDER
in respect of the scope and import of
subsection (3) of Section 13 of the Act,
this Court finds that this subsection
has been incorporated by the Legislature
in the section only to specify as to what
is required to be mentioned in the notice
to be issued under Subsection (2).
Insertion of this subsection makes it
clear that the Legislature did not intend
any ambiguity or insufficiency of
information to get into the notice under
subsection (2) by leaving the discretion
with the authorized officer of the
secured creditor to decide its contents.
That is why the Legislature has provided
in this subsection that the notice
"shall give details of the amount
payable" and "the secured assets intended
to be enforced". It is significant to
note that the Legislature has used the
expression 'shall give the details of the
amount and not 'shall give the final
amount payable' or 'shall give total
amount due' or the like. The word
'details' used by the Legislature before
'the amount payable' is, in the opinion
of this Court, very significant. This
Court is of the view that, by using the
word 'details' before the expression 'of
the amount payable', the Legislature
clearly intended that in the notice under
subsection (2) the details of
calculation of principal and interest,
with all debits and credits, must be
mentioned. The use of words 'shall give'
before 'details' further leaves no
discretion to a secured creditor to
withhold any information from the
borrower in respect of steps taken by it
to reach final figure of amount payable
by him in sixty days from the date of
service of notice under subsection (2).
In Mardia Chemicals (supra) the Court has
found the requirement of reasonableness
and fairness in the dealings of
institutional financing and has used the
expression 'transparency', though in the
context of informing a borrower the
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reasons for not accepting his objections.
The observations of the Court in
paragraph 47 of the judgment, in this
context are:
47. This will also be in keeping with
the concept of right to know and
lender's liability of fairness to keep
the borrower informed particularly of
the developments immediately before
taking measures under subsection (4)
of Section 13 of the Act. It will also
cater to the cause of transparency and
not secrecy and shall be conducive in
building an atmosphere of confidence
and healthy commercial practice. Such
a duty, in the circumstances of the
case and the provisions, is inherent
under Section 13(2) of the Act."
11. This Court is of the view that in the facts of the
present case as discussed hereinabove, the aforesaid
decision would not render any assistance to the
petitioners.
12. In the case of Mathew Varghese (supra), the
Hon'ble Supreme Court observed as under:
"42. In Ram Kishun, para 13, 14 and 28 are
relevant for our purpose, which are as under:
(SCC pp.519 & 522)
"13. Undoubtedly, public money should be
recovered and recovery should be made
expeditiously. But it does not mean that
the financial institutions which are
concerned only with the recovery of their
loans, may be permitted to behave like
property dealers and be permitted further
to dispose of the secured assets in any
unreasonable or arbitrary manner in
flagrant violation of the statutory
provisions.
C/SCA/5416/2020 ORDER
14. A right to hold property is a
constitutional right as well as a human
right. A person cannot be deprived of his
property except in accordance with the
provisions of a statute. (Vide Lachhman
Dass v. Jagat Ram and State of M.P. v.
Narmada Bachao Andolan.) Thus, the
condition precedent for taking away
someone's property or disposing of the
secured assets, is that the authority must
ensure compliance with the statutory
provisions.
x x x
28. In view of the above, the law can
be summarised to the effect that the
recovery of the public dues must be made
strictly in accordance with the procedure
prescribed by law. The liability of a
surety is coextensive with that of the
principal debtor. In case there are more
than one surety the liability is to be
divided equally among the sureties for
unpaid amount of loan. Once the sale has
been confirmed it cannot be set aside
unless a fundamental procedural error has
occurred or sale certificate had been
obtained by misrepresentation or fraud."
(emphasis added)
43. The above principles laid down by this
Court also make it clear that though the
recovery of public dues should be made
expeditiously, it should be in accordance with
the procedure prescribed by law and that it
should not frustrate a constitutional right, as
well as the human right of a person to hold a
property and that in the event of a fundamental
procedural error occurred in a sale, the same
can be set aside."
13. This Court cannot dispute the proposition of law
laid down by the Hon'ble Supreme Court in the aforesaid
decision. However, as discussed hereinabove, in the
facts of the present case, the said decision would not
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be helpful to the petitioners.
14. At this stage, it is also pertinent to note that
the respondent bank has already auctioned the
properties mentioned at serial Nos. A, B, D and E of
the Demand Notice dated 13.07.2009. Now, the question
is with regard to property mentioned at serial No. C of
the Demand Notice dated 13.07.2009. It is pointed out
by learned advocate for the respondent bank that
District Magistrate has already passed an order under
Section 14 of the Act and thereby permitted the
respondent bank to take physical possession of the
property. Pursuance thereto, now the Mamlatdar issued
notice to the petitioners and as per the said notice,
Mamlatdar will take over the physical possession of the
said property on 06.02.2021.
15. In view of the aforesaid discussion, this Court is
of the view that no error is committed by the DRT while
passing the impugned order, which requires any
interference and the petitioners are not entitled to
claim the relief/s as prayed for in this petition.
Petition is, accordingly, dismissed.
(VIPUL M. PANCHOLI, J)
LAVKUMAR J JANI
