Uttarakhand High Court
Radha Dharamwal @ Radha Devi vs Almora Urban Co-Operative Bank & ... on 19 December, 2022
1
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 3306 of 2022
Radha Dharamwal @ Radha Devi ..................Petitioner
-Versus-
Almora Urban Co-operative Bank & Another
..............Respondents
Present: Ms. Seema Dhingra, learned counsel for the petitioner.
Mr. Siddhartha Sah, learned counsel for the respondents.
Date of Hearing and Order: 19.12.2022
Sri Sanjaya Kumar Mishra, J.
Upon hearing the learned counsel for the parties, the Court has
passed the following order:-
1. By filing this writ petition, the petitioner has prayed for
the following reliefs:-
a. To issue a writ, order or direction in the nature of
Certiorari quashing the vide notice dated 14.10.2022
and vide sale notice dated 19.11.2022 issued by the
respondent for taking the physical possession and
sale over the subject matter property situated at
Khasra 467 Min., Village Chandani Chowk,
Gurdaura, Pargana Bhawar Chhikhata, Tehsil-
Haldwani, District - Nainital, Uttarakhand and any
consequential proceedings in the interest of justice
thereon;
b. To issue a writ, order or direction in the nature of
Mandamus to decide all the representations made
before the concerning authorities, and
c. To issue any other Order, Writ or direction, which this
Hon'ble Court may deem fit and proper in the interest
of justice considering facts and circumstances of this
case.
d. Award cost of the petition.
2. It is apparent from the record that the Bank is
proceeding under Section 13 of the SARFAESI Act and
as per the ratio decided by "the State Bank of
Travancore Vs. Mathew K. C., (2018) 3 SCC 85", the writ
petition is not maintainable, as the petitioner has an
alternative remedy approaching the Debt Recovery
Tribunal.
3. The learned counsel for the petitioner was given an
option by this Court for One Time Settlement (O.T.S.) by
making an up-front deposit, but the learned counsel for
the petitioner would submit that the petitioner is not
liable to be proceeded against under the SARFAESI Act
and she is not interested to avail the O.T.S. benefits and
is not ready to file any application for O.T.S.
4. Learned counsel appearing for the petitioner would rely
upon a judgment passed by the Coordinate Bench of
this Court in WPMS No. 2021 of 2013 "Vijay Kumar &
Another Vs. Almora Urban Cooperative Bank Ltd. &
Others, wherein the Coordinate Bench has held that in
view of Section 37 of the SARFAESI Act, it is absolutely
clear that the provisions of the SARFAESI Act are in
addition to, and not in derogation to any other law, but
Cooperative Banks are fully authorized and has
proceeded in accordance with law under Sections 70
and 71 of the Uttaranchal Co-operative Societies Act,
2003.
5. The learned counsel for the Bank would, however, rely
upon a reported case of "Pandurang Ganpati Chaugule
Vs. Vishwasrao Patil Murgud Sahakari Bank Limited,
(2020) 9 SCC 215", wherein the question that was
referred to the Constitution Bench for deciding if the
provisions of the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest
Act, 2002, are applicable to Cooperative Bank.
6. After considering the matter at length, the Constitution
Bench has held as follows:-
"142. Resultantly, we answer the reference as
under:
142.1. (1)(a) The cooperative banks registered under
the State legislation and multi-State level cooperative
societies registered under the MSCS Act, 2002 with
respect to "banking" are governed by the legislation
relatable to Schedule VII List I Entry 45 of the
Constitution of India.
142.1. (b) The cooperative banks run by the
cooperative societies registered under the State
legislation with respect to the aspects of
"incorporation, regulation and winding up", in
particular, with respect to the matters which are
outside the purview of Schedule VII List I Entry 45 of
the Constitution of India, are governed by the said
legislation relatable to Schedule VII List II Entry 32 of
the Constitution of India.
142.2. (2) The cooperative banks involved in the
activities related to banking are covered within the
meaning of "banking company" defined under Section
5(c) read with Section 56(a) of the Banking Regulation
Act, 1949, which is a legislation relatable to List I
Entry 45. It governs the aspect of "banking" of
cooperative banks run by the cooperative societies.
The cooperative banks cannot carry on any activity
without compliance of the provisions of the Banking
Regulation Act, 1949 and any other legislation
applicable to such banks relatable to "banking" in
List I Entry 45 and the RBI Act relatable to Schedule
VII List I Entry 38 of the Constitution of India.
142.3. (3)(a) The cooperative banks under the State
legislation and multi-State cooperative banks are
"banks" under Section 2(1)(c) of the Securitisation and
Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002. The recovery is an
essential part of banking; as such, the recovery
procedure prescribed under Section 13 of
the Sarfaesi Act, a legislation relatable to Schedule
VII List I Entry 45 to the Constitution of India, is
applicable.
142.4. (3)(b) Parliament has legislative competence
under Schedule VII List I Entry 45 of the Constitution
of India to provide additional procedures for recovery
under Section 13 of the Securitisation and
Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 with respect to
cooperative banks. The provisions of Section 2(1)(c)(iv-
a), of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest
Act, 2002, adding "ex abundanti cautela", "a multi-
State cooperative bank" is not ultra vires as well as
the Notification dated 28-1-2003 issued with respect
to the cooperative banks registered under the State
legislation."
7. Thus, it is clear that the SARFAESI Act is applicable to
the Co-operative Banks and the State Banks and was
also guided by the Banking Regulations Act, 1959. In
that view of the matter, the writ petition is dismissed
being devoid of merits.
(Sanjaya Kumar Mishra, J.)
19.12.2022
(Grant urgent certified copy of this order, as per Rules)
A/-
