Orissa High Court
Banita [email protected] vs Mr. Aurobinda Mohanty on 18 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C ) No.15216 of 2021
Banita [email protected] .... Petitioner
Mr. N. Lenka, Advocate
-versus-
The Authorised Officer, Indian .... Opposite
Overseas Bank & Others Parties MMr
Mr. Aurobinda Mohanty, Advocate
(for opp. party No.1)
Mr. Manoj Kumar Mishra, Advocate
(for opp. party No.3)
CORAM:
JUSTICE JASWANT SINGH
JUSTICE S. K. PANIGRAHI
ORDER (Oral)
Order No. 18.11.2021
4. 1. This matter is taken up through Hybrid Mode.
2. Heard learned counsel for the parties.
3. The petitioner is the L.R of defaulting borrower whose
loan account was declared NPA on 30th September, 2017.
A notice under Section 13(2) of the SARFAESI Act, 2002
was issued on 6th October, 2017 seeking to refund the
outstanding loan amount of Rs.41,80,438/-(Rupees Forty
one lakh eighty thousand four hundred thirty eight). A
proceeding under Section 13(2) of the SARFAESI Act, 2002
finally led to conduct of an auction sale held on 12th
March, 2019; and on account of a successful bid of
Snehalata Sahoo (Opp. Party No.3), the Sale Certificate
was issued in favour of auction purchaser/opposite party
No.3 upon deposit of the entire sale consideration. Based
upon the Sale Certificate, a Sale Deed was got executed on
17th June, 2019. The Petitioner filed an S.A before the
D.R.T, Cuttack for cancelling the auction sale and the Sale
// 2 //
Deed dated 17th June, 2019. The S.A was allowed vide
judgment dated 29th September, 2020, whereby the Sale
Deed executed in favour of the auction
purchaser/opposite party No.3 was set aside. The bank
filed an appeal under Section 18 of the SARFAESI Act,
2002 before the learned Debt Recovery Appellate Tribunal,
Calcutta, whereas the auction purchaser did not.
4. The learned D.R.A.T, Calcutta by an interim order
dated 23rd December, 2020 stayed the operation of the
order passed by the D.R.T., Cuttack till the hearing of the
appeal.
5. Thereafter, an interim order dated 31st March, 2021
(Annexure-3) came about to be passed on account of the
counsel for the petitioner seeking an adjournment, to the
effect that the bank was not precluded from taking over
the physical possession of the secured asset/mortgaged
property of the borrower/guarantor. It is this order which
has been impugned by the petitioner in the present case.
6. Learned counsel for the petitioner heard at length.
7. We find that the impugned order does not suffer from
any illegality. The question before the D.R.T, Cuttack and
the D.R.A.T, Calcutta is in respect of the Sale Deed
executed (without possession) in favour of the auction
purchaser. The stay against the order passed by the
D.R.T., Cuttack is operating, and the mention of there
being no stay in the impugned order relates to taking of
the physical possession by the bank and not to the order
passed by the D.R.T., Cuttack. The fact remains, the
petitioner is enjoying the possession without having paid
any amount to discharge his liability, whereas the bank in
the light of the order passed by the D.R.T, Cuttack, setting
// 3 //
aside the Sale Deed, is required to refund the sale amount
to the auction purchaser. Thus, in our view, there is no
legal impediment for the bank to proceed to take actual
physical possession of the property in accordance with law
under the SARFAESI Act, 2002.
8. Accordingly, the Writ Petition is dismissed.
(Jaswant Singh)
Judge
sangita
(S.K. Panigrahi)
Judge
