Allowed

Iswahok Ali Khan v. W B Gramin Bank and Ors.

Calcutta HC24 Aug 2026MAT/1053/2026

Case brief

AI extract

What is this about?

The Division Bench allowed the appeal against the dismissal of a writ petition challenging SARFAESI proceedings initiated after a civil suit was dismissed. The court held that when a civil suit fails on merits, the bank must re-hear the writ petition on the maintainability of the enforcement proceedings rather than quashing them immediately.

What did the court decide?

The order of the learned Single Judge dismissing the writ petition was set aside. The writ petition was directed to be re-heard on merits after exchange of affidavits. No coercive action to be taken p

Iswahok Ali Khan Vs W B Gramin Bank and Ors. — Banking and Recovery | Calcutta HC (2026)

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24.08.2026 M/L No.66 Court No.12 (gc)

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MAT 1053 of 2026 CAN 1 of 2026

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Iswahok Ali Khan Vs.

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West Bengal Gramin Bank & Ors.

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Mr. Rabindranath Mahato, Mr. Aritra Sankar Ray

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…for the Appellant.

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Mr. Rahul Sarkar, Ms. Dipika Sarkar

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…for the Respondents/Bank.

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The appeal arises out of an order dated June 17, 2026 passed in WPA 13014 of 2026. By the order impugned, the learned Trial Judge dismissed the writ petition upon holding that the appellant was a defaulter and had defrauded the respondent bank. His Lordship held that regardless of the ill-advised civil suit filed by the bank, there was no embargo restraining the bank from initiating further proceedings under the SARFAESI Act. Under such circumstances, the writ petition was not only dismissed on the ground of non-maintainability, but cost of 500 GMS was imposed upon the appellant.

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The learned Advocate for the appellant submits that, as the quantum of claim was less than Rs.20 lakhs and recovery thereof could not be made under the provisions of the Recovery of Debts and Bankruptcy Act, 1993 (in short “RDB Act”), the

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bank had filed Money Suit No.35 of 2021. The suit was dismissed with reasons, upon appreciation of evidence. A notice under Section 13(2) of the SARFAESI Act had been issued prior to October 7, 2023. Under such circumstances, on the self-same cause of action, the SARFAESI proceeding could not have been initiated.

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The learned Advocate for the bank submits that if the appellant was aggrieved by the SARFAESI proceedings, his remedy was before the Debts Recovery Tribunal. Under such circumstances, the writ petition was rightly dismissed by the learned Trial Judge. The learned Advocate for the bank submits that the SARFAESI proceedings can be initiated for claims below Rs.20 lakhs and relies on Section 31(j) of the SARFAESI Act.

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Having considered the rival contentions of the parties, we refer to Section 1 of the RDB Act, 1993, which reads as follows:-

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“ 1. Short title, extent, commencement and application. - (1) This Act may be called the Recovery of Debts² [and Bankruptcy] Act, 1993.

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(2) It extends to the whole of India except the State of Jammu and Kashmir*.

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(3) It shall be deemed to have come into force on the 24^th day of June, 1993.

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(4) [Save as otherwise provided, the provisions of this Code] Act shall not apply where

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the amount of debt due to any bank or financial institution or to a consortium of banks or financial institutions is less than ten lakh rupees or such other amount, being not less than one lakh rupees, as the Central Government may, by notification, specify.”

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Sub-section (4) states that the said Act could not be resorted to if the debt was less than Rs.10 lakhs. In this case, an ordinary money suit was filed as the RDB Act was not applicable.

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By a notification issued by the Central Government dated September 6, 2018, the said provision under Section 1(4) was amended and the threshold limit has been raised to Rs.20 lakhs.

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In the suit, the following prayers were made:-

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“a) a decree declaring that the plaintiff Bank is entitled to get Rs.2,47,334/- (Rupees Two lakhs forty seven thousand three hundred thirty four) only from the defendant;

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b) a decree of further interest @ 9.7% p.a. since 01/07/2016 upto full realization;

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c) a decree declaring that the property and article mentioned in the agreement dtd.03/01/2017 remain hypothecated to the plaintiff Bank as security for the payment of the plaintiffs claim herein;

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d) a decree for sale and /or realization of the said properties by public auction or by private contract with the liberty to the plaintiff to appropriate the net process thereof inprotanto satisfaction of the plaintiffs claim thereon;

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e) cost;

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f) any other relief/reliefs as the plaintiff is entitled to law and equity.”

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The suit was dismissed on merits, inter alia, on various grounds and primarily on the ground that the original agreement for cash credit loan could not be produced by the bank. The relevant portion is quoted below:-

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“It is needless to mention that to prove its case, the plaintiff bank could have produced the original agreement for the cash credit loan or any subsequent agreement for the enhancement or renewal of the same but they did not do so. Further, which is the actual loan account, in respect of which, as per para 8 of the plaint, the instant suit was filed has not been mentioned. The most vital document is the statement of the loan account, from which not only loan account but actual transactions undertaken in between the parties to the suit could have been proved but the plaintiff, by not producing the same has failed to prove its case even by preponderance of probability. Thereof, on the basis of the above materials on record, I hold that the plaintiff absolutely failed to justify it claim of Rs.2,47,334/- in respect of the cash credit loan mentioned in the plaint.

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Hence both the points for determination are decided and disposed of against the plaintiff.”

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The appellant raised the point of jurisdiction of the bank to enforce the proceedings under the SARFAESI Act, after the suit had been dismissed on

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merits. It appears that the bank could not prove its claim as a secured creditor on merits. It is urged that the decree in final and binding between the parties. Thus, whether such decision would operate as res judicata or not has to be determined by the writ court. Another question also arises as to whether the interest on such claim could be imposed after the dismissal of the suit. There is no appeal from the decree.

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Under such circumstances, we set aside the order passed by the learned Single Judge.

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We direct re-hearing of the writ petition on merits, upon exchange of affidavits.

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The bank will file the affidavit-in-opposition within three weeks from date. Reply thereto, if any, within a week thereafter. The writ petition will be disposed of within two months.

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Liberty to mention.

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No further coercive action will be taken by the bank for a period of two months or till disposal of the writ petition, whichever is earlier.

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Accordingly, the appeal and the connected application are disposed of.

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However, there shall be no order as to costs.

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Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.

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(Shampa Sarkar, J.)

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(Arjun Ray Mukherjee, J.)

Iswahok Ali Khan v. W B Gramin Bank and Ors.

Case brief

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Iswahok Ali Khan v. W B Gramin Bank and Ors.

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