Dismissed

Manoj Tupatkar v. Idbi Bank Limited

Chhattisgarh HC12 Mar 2024WPC/1240/2021

Case brief

AI extract

What is this about?

The High Court, Bilaspur dismissed a writ petition challenging auction notices issued under the SARFAESI Act, 2002. The court held the petition not maintainable as the petitioner had an efficacious alternative remedy before the Debts Recovery Tribunal under Section 17 of the Act.

What did the court decide?

Petition dismissed at motion stage with direction to approach the Debts Recovery Tribunal.

Manoj Tupatkar Vs Idbi Bank Limited — Banking and Recovery | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (C) No. 1240 of 2021

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Manoj Tupatkar aged 50 years S/o. Late Shri Damoji Tupatkar, R/o. Street No.1, Shrinagar, Khamtarai, Raipur, District Raipur (C.G.)

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---- Petitioner

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Versus

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IDBI Bank Limited through the Manager Fafadih Chowk Branch, Raipur, District Raipur (C.G.)

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Siba Prasad Biswas aged 55 years S/o. Late Shri Kartikchand Biswas R/o. Radha Villa, S.P. Biswas, Dawda Colony, Near Nahar Road, Behind Reliance Tower, Raipur, District Raipur (C.G.)

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---- Respondents

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For Petitioner : Mr. J.K. Gupta, Advocate For Respondent No. 1 : Mr. Akhilesh Mishra, Advocate

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Hon’ble Shri Justice Rakesh Mohan Pandey Order on Board

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13.03.2024

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By way of this petition, the petitioner has prayed for the following

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relief(s):-

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“ 10.1 That the Hon’ble court may kind enough to call the record of the petitioner.

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10.2 That the Hon’ble Court may be kind enough to pass a appropriate writ/ writs, order/ orders, direction/directions to quash the impugned auction notice Annexure P-1 in the interest of justice.

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10.3 That the Hon’ble Court may be kind enough to pass any other writ, order or direction as deemed fit in the circumstances of the case.”

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The facts of the present case are that the petitioner entered into an

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agreement for the lease of the premises owned by respondent No. 2 on 10.01.2015. It is further pleaded that a loan was obtained by respondent No. 2 from respondent No. 1/IDBI Bank Limited, Fafadih Chowk Branch, Raipur of Rs. 36,19,965/-. The amount of the loan could not be repaid, therefore, a proceeding under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

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(hereinafter referred to as 'SARFAESI Act, 2002') was initiated.

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Learned counsel for the petitioner would submit that the petitioner never applied for the loan, rather based on a forged document respondent No. 2 took the loan, therefore, the proceeding initiated under the SARFAESI Act, 2002 and notices issued by respondent No.1/Bank under the SARFAESI Act, 2002 are bad-in-law.

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On the other hand, learned counsel for respondent No.1 would submit that an agreement was entered into between the petitioner and respondent No. 2 vide Annexure P/2 on 10.01.2015. He would further submit that though the petitioner took the loan of Rs.34,91,581/-, he could not repay the installments therefore, the loan obtained by him was declared Non-Performing Asset (NPA) and a notice under Section 13 (2) of the SARFAESI Act, 2002 was issued. He would further argue that the possession notice according to provisions of Section 13(4) of the SARFAESI Act, 2002 was also issued and there is an efficacious alternative remedy available to the petitioner to challenge the proceedings before the Debts Recovery Tribunal according to the provisions of Section 17 of the SARFAESI Act, 2002.

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I have heard learned counsel for the parties and perused the documents

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available on the record.

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Section 17 of the SARFAESI Act, 2002 provides as under:-

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“ 17. Application against measures to recover secured debts.— (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application along with such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken:

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Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.

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Explanation. –For the removal of doubts it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under sub-section (1) of section 17.

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(1A) An application under sub-section (1) shall be filed before the Debts Recovery Tribunal within the local limits of whose jurisdiction–

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(a) the cause of action, wholly or in part, arises;

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(b) where the secured asset is located; or

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(c) the branch or any other office of a bank or financial institution is maintaining an account in which debt claimed is outstanding for the time being.

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(2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder.

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(3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management or restoration of possession, of the secured assets to the borrower or other aggrieved person, it may, by order,–

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(a) declare the recourse to any one or more measures referred to in sub-section (4) of section 13 taken by the secured creditor as invalid: and

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(b) restore the possession of secured asset or management of secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1), as the case may be; and

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(c) pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under subsection (4) of section 13.

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(4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub-section (4) of section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub-section (4) of section 13 to recover his secured debt.

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(4A) Where–

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(i) any person, in an application under sub-section

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(1), claims any tenancy or leasehold rights upon

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the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,–

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(a) has expired or stood determined; or

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(b) is contrary to section 65A of the Transfer of Property Act, 1882 (4 of 1882); or

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(d) is created after the issuance of notice of default and demand by the Bank under sub-section (2) of section 13 of the Act; and

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(ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act.

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(5) Any application made under sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expeditiously as possible and disposed of within sixty days from the date of such application:

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Provided that the Debts Recovery Tribunal may, from time to time, extend the said period for reasons to be recorded in writing, so, however, that the total period of pendency of the application with the Debts Recovery Tribunal, shall not exceed four months from the date of making of such application made under sub-section (1).

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(6) If the application is not disposed of by the Debts Recovery Tribunal within the period of four months as specified in sub-section (5), any party to the application may make an application, in such form as may be prescribed, to the Appellate Tribunal for directing the Debts Recovery Tribunal for expeditious disposal of the application pending before the Debts Recovery Tribunal and the Appellate Tribunal may, on such application, make an order for expeditious disposal of the pending application by the Debts Recovery Tribunal.

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(7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made thereunder.”

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Taking into consideration the fact that an agreement was entered into between the petitioner and respondent No. 2 and a loan of Rs.36,19,965/was obtained by the petitioner and he could not repay the installments

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therefore, the notices under Sections 13(2) and 13(4) of the SARFAESI Act, 2002 were issued and further considering the fact that there is an efficacious alternative remedy available to the petitioner according to provisions of Section 17 of the SARFAESI Act, 2002, in the opinion of this Court, the present petition is not maintainable.

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Consequently, this petition is dismissed at the motion stage. The petitioner may approach the Debts Recovery Tribunal, if so advised.

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Sd/- (Rakesh Mohan Pandey) Judge

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vatti

Manoj Tupatkar v. Idbi Bank Limited

Case brief

What is this about?

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Manoj Tupatkar v. Idbi Bank Limited

Case brief

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