Natascha Sahu vs Punjab National Bank
2021 Latest Caselaw 2490 Jhar

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                       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                    W.P.(C) No. 499 of 2021
                Natascha Sahu                                             ..... Petitioner
                                              Versus
                Punjab National Bank, through the Chief Manager, Circle Sastra, Ranchi North,
                Main Road, Ranchi
                                                                          ..... Respondent
                                                -----

CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR

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                For the Petitioner:       Mr. Vishal Kumar
                For the Respondent:       Mr. P. S. A. S. Pati
                                                -----


04/23.07.2021         The case is taken up through Video Conferencing.

2. The present writ petition has been filed for quashing the letter dated

10.12.2020 (Annexure-4 to the writ petition) issued by the respondent-Bank

asking the petitioner to vacate the premises of the mortgaged property which

has been auction-sold behind the back of the petitioner without complying the

mandatory procedures as prescribed under the Securitization and

Reconstruction of Financial Assets and Enforcement of Security Interest Act,

2002 (hereinafter referred to as 'the Act, 2002') and the rules framed

thereunder.

3. The case of the petitioner is that the respondent-Bank vide e-mail dated

09.08.2018 informed the petitioner about making payment of EMI of

Rs.25,150/- against the education loan of Rs.20 Lacs taken by her which was to

start from the month of September, 2018. The petitioner vide e-mail dated

05.02.2020, informed the respondent-Bank that her father expired and she

herself had to bear the education expenses and thus she requested the

respondent-Bank that she herself would pay the entire loan amount. She also

requested the respondent-Bank to make further correspondences either on her

e-mail or to her given address of Germany. She vide e-mail dated 07.12.2020,

also intimated the respondent-Bank that she was not residing at her house

situated at Ranchi (mortgaged property), however, despite her repeated

attempts to contact the respondent-Bank, she failed to get any reply from its

end. Surprisingly, the petitioner was served with the impugned letter dated

10.12.2020 at her Ranchi address informing about the auction-sale of her house

(mortgaged property) purportedly following due process of law so as to realise

the outstanding loan amount and other expenses.

4. Mr. P. S. A. S. Pati, learned counsel appearing on behalf of the

respondent-Bank, on instruction, submits that the steps for realisation of the

loan amount have been taken by the respondent-Bank after following due

procedure mandated under the Act, 2002 as well as the rules framed

thereunder. The impugned letter dated 10.12.2020 issued by the respondent-

Bank to the petitioner and her sister clearly indicates that the notice under

Section 13(2) of the Act, 2002 was issued on 01.01.2019 and thereafter the

symbolic possession of the secured assets under Section 13(4) was taken on

07.09.2019. It is further submitted that the secured assets / property in

question has already been auction-sold on 24.11.2020 itself and the actual

physical possession of the same has also been handed over to the auction-

purchaser.

5. Having heard learned counsel for the parties and Keeping in view the

aforesaid aspect of the matter, particularly, the submissions of learned counsel

for the respondent-Bank to the effect that the secured assets / property in

question has already been auction-sold and its actual physical possession has

been given to the auction-purchaser, I am not inclined to entertain the present

writ petition. Otherwise also, the petitioner could have invoked

alternative/efficacious/statutory remedy of preferring an application under

Section 17 of the Act, 2002 before the Debts Recovery Tribunal, Ranchi against

the action of the respondent-Bank including issuance of impugned letter dated

10.12.2020.

6. The Hon'ble Supreme Court in the case of United Bank of India

Vs. Satyawati Tondon & Ors. reported in (2010) 8 SCC 110, has

held as under:

"42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression "any person" used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective."

7. Further, in the case of Standard Chartered Bank Vs. Noble

Kumar & Ors. reported in (2013) 9 SCC 620, the Hon'ble Apex Court

has held as under:

"27. The "appeal" under Section 17 is available to the borrower against any measure taken under Section 13(4). Taking possession of the secured asset is only one of the measures that can be taken by the secured creditor. Depending upon the nature of the secured asset and the terms and conditions of the security agreement, measures other than taking the possession of the secured asset are possible under Section 13(4). Alienating the asset either by lease or sale, etc. and appointing a person to manage the secured asset are some of those possible measures. On the other hand, Section 14 authorises the Magistrate only to take possession of the property and forward the asset along with the connected documents to the borrower (sic the secured creditor). Therefore, the borrower is always entitled to prefer an "appeal" under Section 17 after the possession of the secured asset is handed over to the secured creditor. Section 13(4)(a) declares that the secured creditor may take possession of the secured assets. It does not specify whether such a possession is to be obtained directly by the secured creditor or by resorting to the procedure under Section 14. We are of the opinion that by whatever manner the secured creditor obtains possession either through the process contemplated under Section 14 or without resorting to such a process obtaining of the possession of a secured asset is always a measure against which a remedy under Section 17 is available."

8. So far as invoking of writ jurisdiction in the matters of realization of

loan by the financial institutions are concerned, the Hon'ble Apex Court in

a judgment rendered in the case of Authorized Officer, State Bank of

Travancore & Anr. Vs. Mathew K.C. reported in (2018) 3 SCC 85,

while considering the earlier judicial pronouncements made in this regard,

has held thus:

"15. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:-

"46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to

show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order."

16. The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference."

9. Keeping in view the ratio laid down by the Hon'ble Supreme Court in the

aforesaid cases, the present writ petition is, accordingly, dismissed as not

maintainable. The petitioner is however at liberty to work out her alternative

remedy as permissible under law, if so advised.

10. Consequently, I.A. No. 1618/2021 also stands dismissed.

Satish/-                                                       (RAJESH SHANKAR, J)