Orissa High Court
M/S Maa Kalika Bhandar And vs State Of Odisha And Others on 3 September, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(c) No.26500 of 2021
M/s Maa Kalika Bhandar and .... Petitioners
others
Mr. S.P. Mishra, Senior Advocate,
Mr. Soumya Mishra, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. A.K. Nanda, AGA
(for opposite party no.1)
CORAM:
JUSTICE S.K. MISHRA
JUSTICE SAVITRI RATHO
ORDER
03.09.2021
Order No. I.A. No. of 2021
01. 1. This matter is taken up through hybrid mode.
2. This I.A. is filed in Court. Register.
3. By filing this application, the petitioner has prayed to amend
the writ petition as per the schedule of proposed amendment to
this petition and also to annex certified copy of the order passed
by the learned Collector & District Magistrate, Khordha in
Bank Misc. Case No.78/2018 on 19.08.2021.
4. The application for amendment is allowed.
// 2 //
5. The certified copy of the order impugned is hereby attached
as Annexure-14 to the writ application. Necessary pagination
be made by the Registry.
(S.K. Mishra )
Judge
(Savitri Ratho )
Judge
W.P. No.26500 of 2021
1. Heard Mr. S.P. Mishra, learned Senior Advocate appearing
for the petitioners.
2. The record reveals that the petitioner no.1 was a loanee of
the Oriental Bank of Commerce. He defaulted in payment of
money. So, proceedings under Section 13 of the SARFAESI
Act, 2002 was initiated and finally the secured property was
put to auction and sold to the private opposite party no.4-
MGM Minerals Ltd, Bhubaneswar. The sale has been
completed by the Bank in favour of the opposite party no.4.
Thereafter, the Bank initiated a proceeding under Section 14
of the aforesaid Act before the learned Collector-cum- District
Magistrate, Khurda. The learned Senior Advocate submits that
in view of the fact that proceedings under Section 13 of the
aforesaid Act has been initiated and sale has been completed,
the Bank is no more the secured creditor and, therefore,
Section 14 of the aforesaid Act will not be attracted and the
Bank cannot initiate a proceeding under Section 14 of the
// 3 //
aforesaid Act. He also relies upon a reported case of Calcutta
High Court in United Bank of India and another vs. State of
West Bengal and others, decided on 01.09.2017 in W.P.
No.21814 (W) of 2017, wherein the High Court has
categorically held that secured creditor does not retain any
further right to meddle with the immovable property under the
provisions of the SARFAESI Act, 2002 in order to invoke
Section 14 of the SARFAESI Act of 2002 once the
proceeding has been taken under Section 13 of the
SARFAESI Act. So, we are of the opinion that the learned
Senior Advocate has successfully established a case prima
facie lack jurisdiction on the part of the learned Collector,
Khurda and also contended that there has been a violation of
natural justice. We are aware of the Judgment of the Hon'ble
Supreme Court in the case of Authorized Officer, State Bank
of Travencore and another vs. K.C. Mathew, AIR 2018 SC
676. But, in this case, there is a lack of jurisdiction and
violation of principles of natural justice. We are inclined to
entertain the writ application. So, issue notice.
5. Two extra sets of the brief be served on learned Addl.
Government Advocate within a week.
6. Notice be sent to opposite party nos.2 to 4 through
Registered Post with A.D./Speed Post returnable within six
weeks. Postal requisites shall be filed within a week.
// 4 //
7. List this matter on 29.10.2021.
(S.K. Mishra )
Judge
(Savitri Ratho )
Judge
I.A. No.12280 of 2021
1. Issue notice as above. Accept one set of process fee.
2. In the interim, it is directed that the order dated 19.08.2021
passed by the learned Collector and District Magistrate,
Khordha in Bank Misc. Case No.78/2018 shall remain stayed
till the next date.
3. Urgent certified copy of this order be granted as per rules.
(S.K. Mishra )
Judge
(Savitri Ratho )
Judge
pcd
