The Court dismissed the writ petition challenging symbolic possession under Section 13(4) of the SARFAESI Act, holding that fixing instalments is not the High Court's business and the remedy under Section 17 is available.
Writ petition dismissed with liberty to avail the remedy of appeal under Section 17 of the SARFAESI Act.
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Court No. - 39 Case :- WRIT - C No. - 34762 of 2018 Petitioner :- M/S Aditya Traders And Another Respondent :- Corporation Bank And Another Counsel for Petitioner :- Girish Kumar Gupta Counsel for Respondent :- Shashi Dhar Sahai
Hon'ble B. Amit Sthalekar,J. Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Girish Kumar Gupta, learned counsel for the petitioners and Sri Shashi Dhar Sahai, learned counsel for the respondents.
The petitioners took a cash credit loan of Rs. 8 lakhs which was revised to Rs. 15 lakhs in 2012 from the respondent Bank. When the petitioners defaulted in the payment, the amount was declared N.P.A. on 29.8.2010 and thereafter a notice was issued to them on 21.9.2016 under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short 'the SARFAESI Act'), showing total dues as Rs. 15,70,606/-. It has not been stated anywhere that the petitioners filed any objection under Section 13(3A) of the SARFAESI Act, in response to the notice under Section 13(2) of the SARFAESI Act. Thereafter symbolic possession was taken by the Bank under Section 13(4) of the SARFAESI Act on 28.12.2016. The petitioners submitted an application on 9.3.2017 to the Bank by registered post of the same date expressing that they may be allowed to operate their account to enable them to clear all the dues of the Bank. The record does not show that thereafter any order was passed or in the absence of any order the petitioners approached the Bank again or filed any appeal under Section 17 of the SARFAESI Act against the notice under Section 13 (4) of the SARFAESI Act.
Learned counsel for the Bank informs that auction of the property in dispute is fixed for today. It, therefore, appears that the petitioners have approached this Court at the last moment to try to save their property from the auction but we do not find their conduct to be bona fide inasmuch as the notice under Section 13 (4) of the SARFAESI Act was issued on 7.2.2017 to which the petitioners are stated to have submitted their reply on 9.3.2017 and thereafter for one year and six months they kept silent till today when the auction is to take place.
Learned counsel for the petitioners states that the Court may fix some instalments to enable them to clear all the dues. In our opinion it is not the business of the High Court to fix instalments as it is a purely contractual matter between the
petitioner and the Bank and the High Court is not vested with the jurisdiction to alter or rewrite the terms and conditions of the agreement between the petitioners and the Bank. If the petitioners are so advised they may negotiate with the Bank for clearance of the entire dues within such time frame as may be granted by the Bank or they may file appeal under Section 17 of the SARFAESI Act which is the proper alternative legal remedy to them.
Therefore, no ground for interference is made out particularly, in view of the judgement of the Supreme Court in the case of United Bank of India vs. Satyawati Tandon and others , reported in (2010) 8 SCC 110 wherein the Court in paragraph 42 & 43 has held as under :
" 42 . There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression "any person" used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pas interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.
43 . Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute."
We, therefore, dismiss the writ petition with liberty to the petitioners to avail their remedy of appeal under Section 17 of the SARFAESI Act.
Order Date :- 12.10.2018 Vandana
2 issues framed by the court
Whether the High Court can fix instalments to enable petitioners to clear dues in a bank loan case.
Whether the writ petition challenging symbolic possession under Section 13(4) of SARFAESI Act can be entertained when an appeal under Section 17 is available.
Colour shows how this judgement treated each authority
United Bank of India vs. Satyawati Tandon and othersFollowed¶8
(2010) 8 SCC 110 · Who else cites this
3 provisions across 1 enactments
M/S Aditya Traders And Another
Corporation Bank And Another
B. Amit Sthalekar
Surya Prakash Kesarwani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
