Jharkhand High Court
Sunita Devi vs The General Manager on 20 October, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.2562 of 2021
Sunita Devi ..... ... Petitioner
Versus
1. The General Manager, Bank of Baroda, Jamshedpur Main Branch,
Bank of Baroda, Jamshedpur.
2. The Chief Manager-cum-Authorized Officer, Bank of Baroda
(Jamshedpur Region), Doranda, Ranchi.
3. The Chief Manager, Bank of Baroda, Ranchi Main Branch, Ranchi.
4. The Branch Manager, Bank of Baroda, Main Road, Ramgarh.
5. The Branch Manager, Bank of Baroda, Kuju, ARA Road, Ramgarh.
.... .... Respondents
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Manoj Prasad, Advocate
For the Respondents : Mr. P.A.S. Pati, Advocate
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03/20.10.2021 The present writ petition has been filed for quashing the
'Possession Notice' dated 8th July, 2021 (Annexure-6 to the writ petition)
issued by the Chief Manager-cum-Authorized Officer, Bank of Baroda
(Jamshedpur Region), Doranda, Ranchi - the respondent no.2.
2. Heard learned counsel for the parties and perused the content of
the writ petition.
3. The petitioner, who is the widow of borrower late Sudarsan Prasad,
has raised several contentions while challenging the 'Possession Notice'
dated 8th July, 2021 issued by the respondent no.2 including that in spite
of repeated request, the complete details of home loan account
amounting to Rs.8 lacs, C.C. facility at Kuju Branch, Ramgarh of the
respondent - Bank for Rs.21 lacs and restructuring of facility to the
extent of Rs.2,25,000/- by the said Branch were not given to her husband
who subsequently died on 24th April, 2020. The petitioner has also
claimed the payments made on different dates against the aforesaid
accounts has not been taken into consideration by the respondent -
Bank. The further contention of the petitioner is that though the notice
dated 3rd April, 2021 issued under Section 13(2) of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 (hereinafter referred to as 'the Act, 2002') had shown
Rs.14,09,015/- plus un-applied interest as outstanding dues against the
borrower, yet the notice dated 8th July, 2021 issued under Section 13(4)
of the Act, 2002 read with Rule 8(1) of the Security Interest
(Enforcement) Rules, 2002 [hereinafter referred to as 'the Rules, 2002']
has arbitrarily mentioned outstanding dues of Rs.30,69,329.98/- against
the aforesaid accounts.
4. Mr. P.A.S. Pati, learned counsel appearing on behalf of the
respondents raises a preliminary objection with regard to maintainability
of the writ petition on the ground that the petitioner representing the
borrower (her deceased husband) has efficacious remedy against the
'Possession Notice' dated 8th July, 2021 issued under Section 13(4) of the
Act, 2002 read with Rule 8(1) of the Rules, 2002 by preferring an
application under Section 17 of the Act, 2002 before the Debts Recovery
Tribunal, Ranchi.
5. 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."
6. 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 4
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."
7. So far as the issue of invoking 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
has held as under:
"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 5
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."
8. Having heard learned counsel for the parties and keeping in view
that the petitioner has efficacious remedy of preferring an application
under Section 17 of the Act, 2002 before the Debts Recovery Tribunal,
Ranchi against the 'Possession Notice' dated 8th July, 2021 issued by the
respondent no.2 under Section 13(4) of the Act, 2002 read with Rule 8(1)
of the Rules, 2002, I am not inclined to entertain the present writ petition
at this stage and the same is accordingly dismissed as not maintainable.
The petitioner is however at liberty to take appropriate recourse before
the Debts Recovery Tribunal, Ranchi in accordance with the provisions of
the Act, 2002 and the rules framed thereunder.
9. Consequently, I.A. No.5623 of 2021 also stands dismissed.
(Rajesh Shankar, J.)
Rohit
