Rajasthan High Court - Jodhpur
M/S Shree Neelkanth Fuels vs Punjab National Bank ... on 23 May, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:23603]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 8701/2024
1. M/s Shree Neelkanth Fuels, Having Its Office At Village
Kalayiya Kad, N.h.-8, Tehsil-Rishabhdev, Udaipur,
Rajasthan Through Its Proprietor Anjesh Salvi Son Of
Amrit Lal Salvi, Age 30 Years Office At Village Kalayiya
Kad, N.h.-8, Tehsil-Rishabhdev, Udaipur, Rajasthan.
2. M/s Shree Neelkanth Petroleum Bhatki, Having Its Office
At Between Km Stone 178 And 176 On Nh 927-A Old (Sh-
10), Kherwara To Som Road, Village- Bhatki, Post-
Bhanda, Tehsil Kherwara, Distt. Udaipur - 313803,
Rajasthan Through Its Proprietor Veena Salvi W/o Suresh
Kumar Salvi Age 37 Years, Office At Between Km Stone
178 And 176 Oon Nh 927-A Ld (Sh-10), Kherwara To Som
Road, Village- Bhatki, Post- Bhanda, Tehsil Kherwara,
Distt. Udaipur - 313803, Rajasthan.
3. Sharmila Salvi W/o Shri Shantilal Salvi, Aged About 40
Years, Resident Of Near Bhoot Bangla, Jay Prakash Nagar
Kherwara, Distt. Udaipur- 313803, Rajasthan.
----Petitioners
Versus
Punjab National Bank, Having Its Corporate Office At Plot No. 4,
Sector-10, Dwarka New Delhi- 110075, Circle Office At Circle
Sastra Centre, 3Rd Floor, Lic Building, Sub-City Centre, Reti
Stand, Udaipur, Rajasthan Through Its Authorised Officer.
----Respondent
For Petitioner(s) : Mr. Kapil Kumawat through VC
For Respondent(s) : Mr. Jagdish Vyas
HON'BLE DR. JUSTICE NUPUR BHATI
Order
23/05/2024
A query was made to learned counsel for the petitioners in
respect to the maintainability of the present writ petition before
this Court as the petitioners are having alternative and efficacious
[2024:RJ-JD:23603] (2 of 5) [CW-8701/2024]
remedy under the SARFAESI Act, 2002, to which learned counsel
for the petitioners submit that earlier a writ petition was filed
before this Court being SBCWP No.18180/2323 which was
subsequently withdrawn vide order dated 23.02.2024 (Annexure-
4) in order to avail the appropriate remedy available under the
SARFAESI Act, 2002. Learned counsel for the petitioners further
submits that thereafter the petitioners preferred an application
before the learned DRT, Jaipur and the learned DRT, Jaipur vide its
order dated 05.04.2024 (Annexure-7) issued directions to the
respondent-Bank to give 15 days advance notice before taking any
coercive action with regard to subject mortgaged property.
Learned counsel further submits that on account of the fact that
the learned DRT is non-functional as the post of Presiding Officer
is lying vacant, the petitioners have preferred writ petition before
this Court. Learned counsel further submits that the respondent
has blatantly violated the directions passed by the learned DRT,
Jaipur vide order dated 05.04.2024 as the respondent-Bank
without giving any 15 days advance notice to the petitioners has
proceeded to take coercive action against the petitioners.
2. Learned counsel for the petitioners further submit that the
respondent-Bank has issued Notice dated 01.05.2024 (Annexure-
5) for taking over the possession of the property in dispute
without complying to the directions of the learned DRT, Jaipur and
thereafter, issued the Notice for Auction dated 07.05.2024
(Annexure-8) again without complying to the direction of the
learned DRT, Jaipur. Learned counsel also submits that the
petitioners are ready to deposit the complete outstanding amount
to the respondent-Bank and thus, the petitioners may be
[2024:RJ-JD:23603] (3 of 5) [CW-8701/2024]
permitted to deposit the same while granting protection to the
petitioners.
3. Learned counsel for the respondent-Bank vehemently
submits that the respondent-Bank before issuing the Notice dated
01.05.2024 (Annexure-5) has duly complied with the direction of
the learned DRT, Jaipur while giving 15 days advance notice to the
petitioners for taking over the possession of the property in
dispute. He further submits that thereafter, Auction Notice dated
07.05.2024 was published for auctioning the property in dispute
and the date of auction in the said notice has been mentioned as
27.05.2024, thus, a time period of about 20 days has been given
to the petitioners before taking any coercive action against the
petitioners. Learned counsel also submits that the Hon'ble Apex
Court in the case M/S. South Indian Bank Ltd. & Ors. vs Naveen
Mathew Philip & Anr. Etc.(SLP (Civil) Nos. 22021-22022 of 2022)
and judgment passed in the case of Celir LLP Vs. Bafna Motors
(Mumbai) Ltd. & Ors.(Civil Appeal Nos.5542-43), the Hon'ble Apex
Court held that the amended provisions of Section 13(8) of the
SARFAESI Act, makes it clear that, the right of the borrower to
redeem the secured asset stands extinguished thereunder on the
very date of publication of the notice for public auction under Rule
9(1) of the Rules of 2002. The said para of judgment in the case
of Celir LLP Vs. Bafna Motors (Mumbai) Ltd. & Ors. is reproduced
as under:-
(Celir LLP Vs. Bafna Motors (Mumbai) Ltd. & Ors.)
"110.3. In accordance with the unamended Section 13 (8)
of the SARFAESI Act, the right of the borrower to redeem
the secured asset was available till the sale or transfer of
[2024:RJ-JD:23603] (4 of 5) [CW-8701/2024]
such secured asset. In other words, the borrower's right of
redemption did not stand terminated on the date of the
auction-sale of the secured asset itself and remained alive
till the transfer was completed in favour of the auction-
purchaser, by registration of the sale certificate and delivery
of possession of the secured asset. However, the amended
provisions of Section 13 (8) of the SARFAESI Act, make it
clear that the right of the borrower to redeem the secured
asset stands extinguished thereunder on the very date of
publication of the notice for public auction under Rule 9 (1)
of the 2002 Rules. In effect, the right of redemption
available to the borrower under the present statutory
regime is drastically curtailed and would be available only
till the date of publication of the notice under Rule 9 (1) of
the 2002 Rules and not till the completion of the sale or
transfer of the secured asset in favour of the auction-
purchaser."
4. Thus, in view of the submissions made, learned counsel for
the petitioners has miserably failed to demonstrate before this
Court that the respondent-Bank has not complied with the
directions passed by the learned DRT, Jaipur that the petitioners
have to be given 15 days notice before taking any coercive action.
5. Upon perusal of the notice dated 01.05.2024 (Annexure-5),
the petitioners were given 15 days time from the date of receipt of
the notice before initiating auction/proceedings in regard to
possession of the property under the Provisions of SARFAESI Act,
2002. Thereafter, Auction Notice dated 07.05.2024 (Annexure-8)
was issued by the respondent-Bank in which the date of auction
was scheduled on 27.05.2024. Further, as held by the Hon'ble
Apex Court in the case of Celir LLP (supra) that the amended
provisions of Section 13(8) of the SARFAESI Act makes it clear
[2024:RJ-JD:23603] (5 of 5) [CW-8701/2024]
that, the right of the borrower to redeem the secured asset stands
extinguished thereunder on the very date of publication of the
notice for public auction under Rule 9(1) of the Rules of 2002.
Thus, the petitioners' prayer of permitting them to deposit the
outstanding amount to the respondent-Bank cannot be accepted
as upon publication of Auction Notice dated 07.05.2024
(Annexure-8), the right of the petitioners to redeem the secured
asset stands extinguished on the date of publication of the Auction
Notice dated 07.05.2024 (Annexure-8) under Rule 9(1) of the
Rules of 2002.
6. Accordingly, the writ petition being bereft of merits is hereby
dismissed. Stay petition and all pending applications, if any, stand
dismissed.
(DR. NUPUR BHATI),J
369-amit/-
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