Laxman Vs State of Chhattisgarh

¶1

1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

WPC No. 1277 of 2024

¶5

Laxman S/o Prem Lal Aged About 45 Years R/o House No. 214, Gaura Chauk, Kahar Para, Village - Malkharouda, Tahsil - Malkharaouda, District Sakti (C.G.).

¶6

Ghasneen Bai W/o Bhuru Ram Aged About 44 Years R/o House No. - 214, Gaura Chouk, Kahar Para, Village - Malkharouda, Tahsil - Malkharauda, District Sakti (C.G.).

¶7

---- Petitioners

¶8

Versus

¶9

State Of Chhattisgarh Through Disrict Magistrate, District Sakti (C.G.).

¶10

Poonawala Housing Finance Limited Earlier Known As Magma Housing Finance Limited, A Company Registered Under The Provisions Of Companies Act, Having Registered OfÏce At 24, Park Street, Kolkata, 700016, Branch OfÏce At T.P. Nagar, Korba, District Korba, (C.G.), Through Authorised Signatory, Mr. Tushar Joshi, S/o Suresh Joshi.

¶11

---- Respondents

¶12

(Cause Title taken from Case Information System)

¶13

For Petitioners : Mr. R. K. Verma Advocate For Res./State : Mr. Vedang Shadangi, Panel Lawyer

¶14

Hon’ble Shri Justice Rakesh Mohan Pandey Order on Board

¶15

04.03.2024

¶16

By way of this petition, the petitioners have prayed for the following relief(s):-

¶17

“(i) Allow this petition and quashed the order which is passed by District Magistrate Sakti (AnnexureP/1).

¶18

(ii) That, the Hon’ble Court may kindly be please to direct the respondent No. 2, should be stopped for further action.

¶19

(iii) Please grant stay to the petitioner and stop the respondent from taking the above land.

¶20

2

¶21

(iv) Pass any other order the Hon’ble Court may deem fit in the interest of justice.”

¶22

The facts of the present case are that the petitioner took a home loan of Rs. 8 lacs from respondent No. 2, Bank and a loan agreement was entered into between the parties on 27.04.2015. A land bearing survey No. 459/2 admeasuring 0.08 acers situated Patwari Halka No. 18 Mauja village Malkharoda Tahshil- Malkharoda Distirct- Shakti was mortgaged against loan amount. The petitioner could not repay the installments therefore, the account of the petitioner was declared Non-Performing Asset by the respondent bank on 01.05.2021. Thereafter, a notice under Section under Section 13(2) of the SARFAESI Act was issued to the petitioner on 08.11.2021 and 60 days’ time was granted to deposit the total outstanding loan amount of Rs. 8, 23776/-. The petitioner did not reply to the notice and thereafter, an application under Section 14 of the SARFAESI Act, 2002 was moved by the respondent bank before the Collector District- Shakti. The Collector, Shakti vide its order dated 19.01.2024, allowed the application moved by the respondent bank and directed the concerned Tahshildar to take physical possession of mortgaged property. Hence, the petitioner has challenged the order dated 19.04.2019 passed by the Collector/district Magistrate, Shakti.

¶23

Learned counsel for the petitioner would submit that the petitioner has passed only 8^th class and he could not understand the terms and conditions of the agreement, therefore, it would not be binding upon him. He would also submit that part of loan amount was paid by the petitioner but the same has not been taken into consideration. He would again submit that the account of the petitioner was declared Non-Performing Asset contrary to rules issued by the Reserve Bank of India. He would further submit that on account of Covid Pandemic the petitioner could not repay installments. The District Magistrate/Collector, Shakti has passed the order without affording any

¶24

3

¶25

opportunity of hearing to the petitioner.

¶26

Heard learned counsel for the petitioner and perused the documents placed on the record.

¶27

From perusal of the document it appears that the petitioner took a loan of Rs. 8 lacs and mortgaged his property. The petitioner and the respondent Bank entered into an agreement on 27.04.2015 but he could not repay the installments and the account of the petitioner was declared Non-Performing Asset by the respondent bank on 01.05.2021. Thereafter a notice under Section 13(2) of the SARFAESI Act was issued on 08.11.2021 but no reply was filed and therefore an application under Section 14 of the SARFAESI Act was moved and order was passed by the District Magistrate/Collector, Shakti.

¶28

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

¶29

“ 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:

¶30

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

¶31

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 subsection (1) of section 17.

¶32

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

¶33

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

¶34

(b) where the secured asset is located; or

¶35

(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.

¶36

(2) The Debts Recovery Tribunal shall consider whether

¶37

4

¶38

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.

¶39

(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,–

¶40

(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

¶41

(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

¶42

(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.

¶43

(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.

¶44

(4A) Where–

¶45

(i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon 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,–

¶46

(a) has expired or stood determined; or

¶47

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

¶48

(c) is contrary to terms of mortgage; or

¶49

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

¶50

(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

¶51

5

¶52

fit in accordance with the provisions of this Act.

¶53

(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:

¶54

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).

¶55

(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.

¶56

(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.”

¶57

Taking into consideration the facts and circumstances of the case, further considering the fact that the petitioners have an efficacious alternative remedy to approach the Debts Recovery Tribunal under Section 17 of the SARFAESI Act, 2002 where they may raise all grounds available to them, therefore, I do not find any good ground to entertain the instant petition. Consequently, this petition is dismissed at the motion stage. The petitioners may approach Debts Recovery Tribunal, if so advised.

¶58

Sd/-

¶59

(Rakesh Mohan Pandey) Judge

¶60

amita

Laxman v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Laxman v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Manoj Kumar Yadav Vs State of Chhattisgarh

Sonu @ Suraj Pal Vs State of Chhattisgarh

Sonamati Vs State of Chhattisgarh

Balmukund Sharma Vs State of Chhattisgarh

Rakesh Kumar Rajak Vs State of Chhattisgarh

Bhagat Ram Vs State of Chhattisgarh