Madhya Pradesh High Court
M/S Agrawal Coals And Logistics ... vs Debts Recovery Tribunal on 17 March, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUJOY PAUL
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 17 th OF MARCH, 2023
WRIT PETITION No. 6213 of 2023
BETWEEN:-
M/S AGRAWAL COALS AND LOGISTICS (PARTNERSHIP)
THROUGH ITS PARTNER ANKIT AGRAWAL S/O RAJESH
AGRAWAL AGED ABOUT 36 YEARS HAVING
REGISTERED OFFICE AT A- 22, RAMALIFE CITY
USLAPUR ROAD INFORNT OF THE JAIN
INTERNATIONAL SCHOOL SAKRI BILASPUR
(CHHATTISGARH)
.....PETITIONER
(BY SHRI PRABHANSHU SHUKLA - ADVOCATE )
AND
1. DEBTS RECOVERY TRIBUNAL CIVIL LINES BOI
BUILDING NEAR CIVIL LINES POLICE STATION
JABALPUR (MADHYA PRADESH)
2. TATA MOTORS FINANCE LIMITED HAVING
OFFICE AT I THINK TECHNO CAMPUS BUILDING
A 2ND FLOOR OFF POKHRAN ROAD 2 THANE
WEST MUMBAI 400601 (MAHARASHTRA)
3. TATA MOTORS FINANCE LIMITED HAVING
BRANCH OFFICE AT JEEVAN BUILDING 1ST
FLOOR ABOVE SBI BANK SHANTI NAGAR RING
ROAD NO. 2 BILASPUR (CHHATTISGARH)
.....RESPONDENTS
(NONE )
This petition coming on for orders this day, JUSTICE SUJOY PAUL
passed the following:
ORDER
Signature Not Verified
Signed by: MANJU
Signing time:
3/21/2023 3:46:24 PM
Heard on the preliminary objection of territorial jurisdiction/maintainability
raised by the registry. The registry has raised objection because petitioner
belongs to Chhattisgarh.
Learned counsel for the petitioner submits that orders under challenge are
dated 03/03/2023 (Annexure P/2) passed by Registrar, Debts Recovery
Tribunal (DRT), Jabalpur which got stamp of approval in Chamber Appeal by
learned Presiding Officer by order dated 09/03/2023 (Annexure P/4). Both the
orders were passed by competent officers of DRT, Jabalpur which is within the
territorial jurisdiction of Principle Seat of this Court, thus the office objection
deserves to be overruled.
We find substance in the said argument in the light of Clause-2 of Article
226 of the Constitution which envisages that even if a minuscule part of cause
of action has arisen within the territory of this Bench, petition can be
entertained. Thus, Office objection is overruled.
Since impugned orders are passed without putting the other side to
notice, we do not find any reason to put the other side to notice and deem it
proper to hear Shri Shukla finally.
Shri Shukla, learned counsel for the petitioner submits that by order
dated 06/03/2023, learned Registrar of DRT declined to register his application
preferred under Section 17(1) of the SARFAESI Act and under the relevant
Rules of 2002.
A plain reading of order dated 03/03/2023 (Annexure P/2) makes it clear
that the singular reason for non-registration of application is that there exists no
document on record indicating that the secured creditor has taken action under
Section 13(4) of Securitisation and Reconstruction of Financial Assets and
Signature Not Verified
Enforcement of Security Interest (SARFAESI) Act. Since registration was
Signed by: MANJU
Signing time:
3/21/2023 3:46:24 PM
declined, the petitioner availed the remedy of Chamber Appeal as per Rule 5(5)
of Debts Recovery Tribunal (Procedure) Rules, 1993. The chamber hearing
was given to the petitioner and learned Presiding Officer by impugned order
dated 09/03/2023 held that an application under Section 17(1) can be entertained
provided the secured creditor has taken some action under Section 13(4) of the
Act. The finding of learned Presiding Officer is that although in the pleadings,
the appellant/petitioner stated that secured creditor has repossessed the
hypotheticated vehicle but for this purpose, no documentary evidence was filed.
Thus, the application was not tenable.
Criticizing the said finding, Shri Shukla, learned counsel for the petitioner
submits that when no documents were given while taking possession of the
vehicle, the expectation of Tribunal that some documents should have been
filed is without any basis. There was no reason to disbelieve the pleadings.
Neither the SARFAESI Act nor the Rules make it obligatory to file any such
document to substantiate the case. The reliance is placed on Section 17(1) of
the SARFAESI Act which makes it clear that any person aggrieved by any of
the measure referred to in sub-section (4) of Section 13 taken by secured
creditor may approach the Tribunal. What is important, submits Shri Shukla is
whether measure has been taken or not. Section 17(1) nowhere talks about
existence of any documentary evidence for that purpose.
To elaborate, Shri Shukla placed reliance o n Section 13(4)(a)
SARFAESI Act , which reads as under :-
"Section 13(4) in The Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002
(4) In case the borrower fails to discharge his liability in full
within the period speciÂfied in sub-section (2), the secured
creditor may take recourse to one or more of the followÂing
Signature Not Verified
Signed by: MANJU
Signing time:
3/21/2023 3:46:24 PM
measures to recover his secured debt, namely:
(a) take possession of the secured assets of the borrower
including the right to transfer by way of lease, assignment or sale
for realising the secured asset;"
(Emphasis supplied)
It is submitted that once it is pleaded that possession has been taken
without any documents, there was no impediments for the D.R.T. for
registering the application under Section 17 of the SARFAESI Act€™. He
placed reliance on a Patna High Court Judgment in the case of Sanjay Kumar
Vs. UCO Bank (Civil Writ Jurisdiction Case No. 18557 of 2019) decided
on 15th November 2019 wherein it is held that even in the cases of immovable
property, the secured creditor is bound to follow the procedure prescribed
under the SARFAESI Act and the rules made thereunder. Thus, the learned
Registrar and Presiding Officer have committed an error in declining registration
of application under Section 17 of the said Act.
We have heard learned counsel for the petitioner at length and find
substantial force in the argument of learned counsel for the petitioner.
A conjoint reading of Section 13(4) of Section 17(1) of the SARFAESI
Act makes it clear that what is required to be established is that the secured
creditor has taken measure under sub-Section(4) of Section 13 in order to
invoke the remedy under Section 17 of the said Act. Since no documents were
made available to the petitioner, the petitioner categorically pleaded in this
regard which was even accepted by learned Presiding Officer that vehicle was
repossessed. If no document is given to the petitioner, an impossible act to
produce the document should not have been expected by the Tribunal. Moreso,
when filing of such document is not a condition precedent for entertaining and
registering an application under Section 17 of the SARFAESI Act€™.
Signature Not Verified
Signed by: MANJU
Signing time:
3/21/2023 3:46:24 PM
Thus, we are unable to countenance the orders passed by the learned Registrar
and Presiding Officer of the D.R.T. The petitioner could make out a case
deserving registration of his application under Section 17 of the said Act.
In view of foregoing discussion, the impugned order dated 3.3.2023
(Annexure P-2) passed by the learned Registrar and the order dated 9.3.2023
passed by the learned Presiding Officer are set aside. The D.R.T. is directed to
register the application preferred by the petitioner under Section 17 of the Act
and proceed therefrom in accordance with law. It is made clear that this court
has not expressed any opinion on the merits of the case.
The petition is allowed to the extent indicated above.
At this stage, learned counsel for the petitioner has expressed some
urgency.
Liberty is reserved to mention the matter before the learned Presiding
Officer, D.R.T. on Monday, i.e. on 20.3.2023. This Court has no doubt that the
learned D.R.T. will look into the aspect in accordance with law.
Certified copy today.
(SUJOY PAUL) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
manju
Signature Not Verified
Signed by: MANJU
Signing time:
3/21/2023 3:46:24 PM
