Rajasthan High Court
Mrs. Rishu Chaudhary Wife Of Shri ... vs Indian Overseas Bank on 20 April, 2022
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1011/2019
Mrs. Rishu Chaudhary Wife Of Shri Neelesh Chaudhary, Aged
About 43 Years, Sole Proprietor Of M/s. Sagar Overseas, Having
Office At G1/125 (A), RIICO, Industrial Area, Khushkera,
Bhiwadi, Rajasthan 307719.
----Petitioner
Versus
1. Indian Overseas Bank, 3A/7, U.I.T. Colony, Gaurav Path,
Bhiwadi, Tehsil Tihara, District Alwar Rajasthan Through
Its Branch Manager.
2. Indian Overseas Bank, Regional Office, Riddhi Tower, Tonk
Road, Jaipur Through Its Chief Manager.
3. M/s AMG Industries, a partnership firm through its Partner
and Authorized Signatory Mr. Amit Gupta having its office at D-
348/3, Gali No.8, Near Jankalyan School Road, Bhajanpura North
East, New Delhi.
----Respondents
For Petitioner(s) : Mr. V.L. Mathur, Adv. with
Mr. Amit Kumar Dhawan, Adv.
For Respondent(s) : Mr. Anurag Kalavatiya, Adv.
Mr. Akshat Khandelwal, Adv.
Mr. Ganesh Sharma, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
20/04/2022
This writ petition has been filed by the petitioner, challenging
order dated 03.01.2019 passed by the Debts Recovery Tribunal,
Jaipur in S.A. No.215/18.
(D.B. SAW/1718/2019 has been filed in this matter. Please refer the same for further orders)
(2 of 5) [CW-1011/2019]
The petitioner has also prayed that the auction proceedings
conducted by the respondents in favour of one M/s AMG Industries
for Rs.41,50,000/- be set-aside.
This Court asked learned counsel for the petitioner to satisfy
about jurisdiction of this Court to entertain the present writ
petition in wake of statutory, alternative remedy provided under
Section 18 of the Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002
(hereinafter referred to as 'the Act of 2002').
Learned counsel for the petitioner was granted time on
12.04.2022 to prepare the matter.
Learned counsel for the petitioner-Mr. V.L. Mathur submitted
that the Apex Court in the case of Hindon Forge Private
Limited & Anr. Vs. State of Uttar Pradesh through District
Magistrate, Ghaziabad & Anr. reported in (2019) 2 SCC 198,
has laid down the law that an application under Section 17 can be
filed only at the stage of possession notice issued under Rule 8(1)
and 8(2) of the Security Interest (Enforcement) Rules 2002.
Learned counsel for the petitioner on the strength of the said
judgment submitted that the petitioner had rightly approached the
Debts Recovery Tribunal, Jaipur by maintaining an application
under Section 17 of the Act of 2002.
Learned counsel for the petitioner submitted that only on the
ground of delay, the said application has been dismissed and this
Court has ample power to entertain the present writ petition filed
under Articles 226 & 227 of the Constitution of India.
Learned counsel for the petitioner submitted that while
issuing notices in the writ petition on 11.01.2019, this Court had
also passed an interim order, directing the respondents to
(D.B. SAW/1718/2019 has been filed in this matter. Please refer the same for further orders)
(3 of 5) [CW-1011/2019]
maintain status-quo with regard to property in dispute subject to
depositing due outstanding amount of Rs.45 lakhs by the
petitioner within a period of one month.
Learned counsel for the petitioner submitted that due
compliance of the order dated 11.01.2019 was made and money
was deposited.
Learned counsel for the petitioner further submitted that the
action of the respondents in putting the property for auction is
also not in accordance with law and same is done in malafide
manner.
Learned counsel appearing for the respondent No.3-Mr.
Anurag Kalavatiya submitted that the present writ petition may
not be entertained by this Court.
Learned counsel for the respondent No.3 places reliance on
judgments reported in AIR 2022 SC 1045-Phoenix ARC
Private Limited Vs. Vishwa Bharti Vidya Mandir & Ors; 2022
(1) RCR (Civil) 860-Bank of Baroda Vs. Karwa Trading
Company & Ors; Company Appeal (AT) (Insolvency)
No.159/2002-Electrosteel Castings Limited Vs. UV Assets
Reconstruction Company Limited, decided on 09.03.2022;
AIR 2021 SC 4559-S. Karthik and Ors. Vs. N. Subhash
Chand Jain & Ors; AIR 2022 SC 545-Arce Polymers Private
Limited Vs. Alpine Pharmaceuticals Private Limited & Ors;
Civil Appeal No.3143/2020-M/s L&T Housing Finance
Limited Vs. M/s Trishul Developers & Anr., decided on
27.10.2020 and Civil Appeal No.5248/2018-Authorized
Officer State Bank of India Vs. M/s Allwyn Alloys Pvt. Ltd,
decided on 17.05.2018.
(D.B. SAW/1718/2019 has been filed in this matter. Please refer the same for further orders)
(4 of 5) [CW-1011/2019]
I have heard the submissions made by learned counsel for
the parties and perused the material available on record.
This Court finds that the petitioner had filed an application
before the Debts Recovery Tribunal, Jaipur against the notice
issued under Section 13(4) of the Act of 2002.
This Court further finds that Debts Recovery Tribunal, Jaipur
while deciding the Securitization Application filed by the petitioner
came to the conclusion that the Securitization Application was
barred by limitation as it was filed belatedly with a delay of 546
days.
This Court further finds that the Securitization Application
filed by the petitioner was dismissed after considering the plea
raised by the petitioner.
This Court is afraid to accept submission of learned counsel
for the petitioner that the present writ petition is maintainable
against the order passed by the Debts Recovery Tribunal while
deciding the application filed under Section 17 of the Act of 2002.
This Court finds that Section 18 of the Act of 2002, provides
statutory remedy to the aggrieved person to file an appeal against
order passed under Section 17 of the Act of 2002.
This Court finds that the pre-deposit for filing appeal is also
required to be complied with, however, the Appellate Tribunal has
been given discretion to reduce the amount from 50% to 25% and
as such the appropriate forum for the petitioner, is to approach
the Appellate Tribunal.
Reliance is placed on the judgment passed by the Apex Court
in the case of Hindon Forge Private Limited (supra) to the extent
of filing an application under Section 17 of the Act of 2002 at the
time of taking possession of the property, this Court finds that in
(D.B. SAW/1718/2019 has been filed in this matter. Please refer the same for further orders)
(5 of 5) [CW-1011/2019]
the present case, the petitioner had already filed the application
before the Debts Recovery Tribunal and his application has been
dismissed on the ground of delay.
This Court finds that the said judgment of the Apex Court
does not lay down the law that even if the statutory alternative
remedy is available under Section 18 of the Act of 2002, the writ
petition will still be maintainable before this Court.
This Court finds that the Apex Court in the case of Phoenix
ARC Private Limited (supra) has recently laid down the law that
the matters which arise out of the proceedings initiating under the
SARFAESI Act, the writ petition would not be maintainable before
the High Courts.
This Court in view of law laid down by the Apex Court finds
that the present writ petition is not maintainable before the Court.
It goes without saying that if the petitioner has any
grievance, she can always approach the appropriate Appellate
Authority and she can also bring into the notice of Appellate
Authority as what prejudice has been caused to her and how much
amount has been deposited.
This Court accordingly dismisses the present writ petition
and interim order passed by this Court is also vacated.
(ASHOK KUMAR GAUR),J
Ramesh Vaishnav /86/Bhavnesh Kumawat
(D.B. SAW/1718/2019 has been filed in this matter. Please refer the same for further orders)
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