Uttarakhand High Court
Union Bank Of India vs M/S Uttaranchal Chemical ... on 16 December, 2022
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE CHIEF JUSTICE SHRI VIPIN SANGHI
AND
JUSTICE SHRI ALOK KUMAR VERMA
SPECIAL APPEAL NO.454 OF 2022
16th December, 2022
Union Bank of India ...... Appellant.
Vs.
M/s Uttaranchal Chemical Industries
Through Its Proprietor and Others
......Respondents
Presence: -
Ms. Prabha Naithani, learned counsel for the appellant.
Ms. Priyanka Agarwal, learned counsel for respondent no.1.
Mr. Vikas Pande, learned Standing Counsel for the State /
respondent no.4 and 5.
JUDGMENT: (Per Shri Vipin Sanghi, C.J.)
Issue notices.
2. Learned counsel for the respondents appear
and accept notices.
3. The present appeal is directed against the order
dated 30.11.2022 passed by the learned Single Judge,
whereby staying the operation of impugned order dated
09.11.2022 whereby the appellant-bank issued notice to
the respondent to take over possession of one of the
mortgaged assets, namely, the factory premises of the
respondent.
4. While passing the impugned order, the learned
Single Judge has placed reliance on the judgment of
Bajaj Finance Ltd. Vs. M/s Ali Agency and Others
rendered by the Division Bench of the Hon'ble Orissa High
Court wherein the Division Bench observed that after the
order is passed by the District Magistrate under Section
14(1) of the SARFAESI Act, the officers so deputed to
execute the order under Section 14(1) should complete
the process of execution within 60 days, and, if the order
is not executed within the said period, the officer
concerned shall report the matter back to the District
Magistrate, who will then pass suitable orders.
5. In the present case, the District Magistrate had
issued the order on 18.09.2019 in respect of two
properties i.e. a residential property and a factory
premises. Possession of the residential premises was also
taken over by the appellant-bank. After issuance of the
said order, the respondent-borrowers had paid certain
amounts, including under the OTS proposal which was
accepted by the appellant-bank. However, the time
schedule for complete liquidation of the liabilities-as fixed
in the OTS offer made by the appellant-bank, was not
adhered to by the respondent and, consequently, the said
OTS proposal/offer does not survive. By the impugned
order dated 09.11.2022, possession of the factory
premises was sought to be taken. We may notice, that
possession of the residential property was earlier returned
to the petitioner on 13.07.2022 as the petitioner paid
certain amounts and undertook to liquidate its liability
completely.
6. With due respect, we have serious reservations
with regard to the correctness of judgment of the Hon'ble
Orissa High Court in Bajaj Finance Ltd.(supra). Limitation
can only be prescribed by law, not by the Court in a
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judgment.
7. The purpose of stipulating the period within
which the order under Section 14(1) of the SARFAESI Act
should be executed, is to exhibit a sense of urgency and
expedition with which the proceedings under the
SARFAESI Act should proceed. There is nothing to suggest
that if the order under Section 14(1) is not executed
within 30 days, or within 30 days thereafter, the order
would lapse, and would become inexecutable.
8. The circumstances in which the order has not
been executed are relevant for consideration, which, in
the present case, was the fact that the respondent sought
to avail the OTS scheme; respondent was made an OTS
offer and; the respondent did not fulfill its obligations
under the OTS offer by 15.08.2022, which was the date
fixed for liquidation of the liabilities under the OTS offer.
9. The submission of the learned counsel for the
respondent is that the respondent has paid to the tune of
Rs.67 lakhs in the last two years, and that the respondent
is ready and willing to continue to pay the amounts
outstanding.
10. She submits that the respondent has also asked
the appellant-bank to provide the complete statement of
account showing the up-to-date outstanding liabilities, but
the same has not been provided.
11. Let the appellant-bank provide the detailed
statement of account showing, inter alia, the credit
entries of the amounts received, as well as the debit
entries towards the interest and other charges, and also
indicating the rate of interest being charged by the
appellant-bank from time to time. The said statement of
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account will be provided within two weeks.
12. The respondent shall deposit Rs.30 lakhs latest
by 31.12.2022 and, thereafter, shall pay the outstanding
amounts in installment of Rs.10 lakhs each by the end of
the following month.
13. Subject to compliance of the aforesaid
conditions, the operation of the impugned order dated
09.11.2022 under Section 14(1) of the SARFAESI Act,
issued by the appellant-bank shall remain stayed.
14. With the aforesaid directions, the impugned
order dated 30.11.2022 stands modified.
15. Accordingly, the present appeal as well as stay
application (IA/1/2022) stand disposed of.
________________
VIPIN SANGHI, C.J.
___________________
ALOK KUMAR VERMA, J.
Dated: 16th December, 2022
SS/SB
