Runumi Gogoi Saikia and Anr. Vs the Union of India and… — Banking and Recovery | Gauhati HC (2025)

Runumi Gogoi Saikia and Anr. Vs the Union of India and… — Banking and Recovery | Gauhati HC (2025)

What the court decided

AI extract

Outcome

Revision petition disposed of subject to the Court's observations: Annexures-XXXIII and XXXIV (the Recovery Officer's order dated 31.01.2019 and the order of attachment) set aside and quashed for violation of natural justice; the Recovery Officer remains free to pass a fresh order of attachment under Section 25(a) or other modes under Sections 25 and 28 of the Act of 1993 after putting the petitioners to notice and giving them a reasonable opportunity; petitioners restrained from transferring, encumbering or charging the mortgaged property till disposal of the recovery proceedings.

Issue for consideration

Whether the procedure adopted by the Recovery Officer in passing the impugned order dated 31.01.2019 attaching the mortgaged property — on the very day the Certificate Holder's application was filed, without notice or opportunity to the petitioners and otherwise than as stipulated in the Debts Recovery Tribunal (Procedure) Rules, 1993 — was permissible in law. +1 more

Court's answer

The impugned order dated 31.01.2019 violates the principles of natural justice, which come within the purview of Article 21 of the Constitution, because it was passed on the very day the application was filed without giving any opportunity to the petitioners; there being no rebuttal to these contentions in the affidavit-in-opposition, the Court interferes with the order dated 31.01.2019 passed by the Recovery Officer in Original Application No. 212/2012, and with the order of attachment of the immovable property; Annexures-XXXIII and XXXIV are set aside and quashed.

Ratio / Principle

From a perusal of Sections 25 and 28 of the Act of 1993, a Recovery Officer has the power to attach the mortgaged property; the question in the proceedings was confined to whether the procedure by which the impugned order was passed was permissible.

Key takeaways

The interference with the order dated 31.01.2019 shall not preclude the learned Recovery Officer, Debts Recovery Tribunal, Guwahati, from passing an order of attachment in terms of Section 25(a) of the Act of 1993 or resorting to other means available under Sections 25 and 28 of the Act of 1993; however, while doing so, the petitioners have to be put to notice and given a reasonable opportunity.ratio¶54
Since the mortgaged property stands charged vide the Tribunal's Judgment and Order dated 14.12.2017 in Original Application No. 212/2012, the petitioners shall not transfer, encumber or charge the said property till disposal of the recovery proceedings.ratio¶55

Detailed headnote1 paragraphs

Gauhati High Court (Devashis Baruah, J.), CRP(IO)/110/2019, decided 02.05.2025 — Natural justice; attachment by Recovery Officer without notice. The Recovery Officer, DRT Guwahati, by order dated 31.01.2019 attached the petitioners' mortgaged property (charged vide the Tribunal's Judgment and Order dated 14.12.2017 in O.A. No. 212/2012, Recovery Certificate of Rs. 21,08,017.83 in favour of ARCIL) on the very day the Certificate Holder's counsel prayed for attachment following rejection of the judgment debtors' OTS proposals, without giving the petitioners any opportunity and otherwise than in the manner stipulated in the Debts Recovery Tribunal (Procedure) Rules, 1993. Held: although a Recovery Officer has power under Sections 25 and 28 of the Recovery of Debts and Bankruptcy Act, 1993 to attach mortgaged property, the impugned order violated the principles of natural justice falling within the purview of Article 21 of the Constitution; Annexures-XXXIII and XXXIV were set aside and quashed. The quashing does not preclude a fresh order of attachment under Section 25(a) or other modes under Sections 25 and 28, provided the petitioners are put to notice and given reasonable opportunity. Petitioners restrained from transferring, encumbering or charging the mortgaged property till disposal of the recovery proceedings.

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GAHC010082572019

2025:GAU-AS:5448

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : CRP(IO)/110/2019

RUNUMI GOGOI SAIKIA AND ANR.

W/O SRI GOLAP GOGOI, R/O GAMES VILLAGE, BLOCK NO. A-6, FLAT NO,. 102, BORSAJAI, BASISTHA, GUWAHATI-29

2: GOLAP GOGOI S/O LT. B.R.GOGOI R/O GAMES VILLAGE BLOCK NO. A-6 FLAT NO . 102 BORSAJAI BASISTHA GUWAHATI-2

VERSUS

THE UNION OF INDIA AND 3 ORS.

MINISTRY OF FINANCE (BANKING DIVISION), 1ST FLOOR, JEEVANDEEP BUILDING, PARLIAMENT STREET, NEW DELHI-1 AND IS REP. ITS SECRETARY.

2:THE DEBTS RECOVERY TRIBUNAL SUWARNA BHAWAN HOUSE NO. 12 NEW TOWN PATH G.S.ROAD ULUBARI GUWAHATI-07 ASSAM AND IS REP. BY ITS REGISTRAR.

3:THE ASSETS RECONSTRUCTION COMPANY (INDIA) LTD. (ARCIL) HAVING ITS REGISTERED OFFICE AT THE RUBY 10TH FLOOR 29 SENAPATI BAPAT MARG DADAR (WEST)

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MUMBAI-700028 AND A BRANCH OFFICE AMONGST OTHER PLACES AT HOUSE NO. 553 SOOD VILLA BEHING ICICI BANK 2ND FLOOR G.S.ROAD CHRISTIAN BASTI GUWAHATI-781005 DIST.-KAMRUP(M) ASSAM AND IS REP. BY ITS BRANCH MANAGER 4:K MUKHERJEE THE RECOVERY OFFICER-II DEBTS RECOVERY TRIBUNAL SUWARNA BHAWAN HOUSE NO. 12 NEW TOWN PATH G.S.ROAD ULUBARI GUWAHATI-7 ASSAM

Advocate for the Petitioner : MR. A DAS, MS. M BORDOLOI,MR. N I KHAN,MR S DAS

Advocate for the Respondent : ASSTT.S.G.I., Mukesh Sharma (R-3),MS F RAHMAN (R-3)

BEFORE

HON’BLE MR. JUSTICE DEVASHIS BARUAH

Advocate for the petitioner(s) : Mr A Das. Advocate for the respondent(s) : Mr M Sharma.

Date of Hearing and Judgment : 02.05.2025

JUDGMENT AND ORDER (ORAL)

Heard Mr A Das, the learned counsel appearing on behalf of the petitioners and Mr M Sharma, the learned counsel appears on behalf of the respondent No. 3.

Taking into account that the present proceedings is directed against an order passed

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by the respondent No. 4, who passed the said in exercise of his powers under Section 28 of the Recovery of Debts and Bankruptcy Act, 1993 (for short, “the Act of 1993”), the name of respondent No. 4 is struck off.

The petitioners herein, have invoked the supervisory jurisdiction of this Court to challenge the order dated 31.01.2019, whereby the learned Recovery Officer, Debts Recovery Tribunal, had attached the mortgaged property described in the Recovery Certificate.

The case of the petitioners in short is that the learned Recovery Officer had passed the order dated 31.01.2019, without giving any opportunity to the petitioners and merely, on a prayer being made by the counsel appearing on behalf of the respondent No. 3, who is the Certificate Holder.

To ascertain the legality and validity of the order dated 31.01.2019, and the subsequent order of attachment issued on the same date, enclosed as Annexures-XXXIII and XXXIV, this Court finds it relevant to take note of, briefly, the facts infra-

The respondent No. 3 had filed an application, being Original Application No. 212/2012, before the Debts Recovery Tribunal, Guwahati (for short, “the learned Tribunal”), seeking a Recovery Certificate for a sum of Rs. 21,08,017.83 (Rupees Twenty-One Lacs Eight Thousand Seventeen and Eighty-Three Paise Only), along with future interest @ 11.75%, till realization with cost charges etc. The learned Tribunal vide a detailed Judgment and Order dated 14.12.2017, issued the Recovery Certificate in favour of the respondent No. 3, for a sum of Rs. 21,08,017.83 against the defendant Nos. 1, 2 and 3, jointly and severally, with pendentilite and future interest @ 10 % per annum, with quarterly rest till realization and the cost of the application.

In addition to that, the learned Tribunal also ordered that the difference of interest so calculated on reducing balance on deposit of amount be also reduced from the amount under the certificate and the respondent No. 3 was directed to file revised statement of

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account before the learned Recovery Officer. It was also observed that there shall be a charge of the certificate amount, which shall be kept alive on the mortgaged property, till the amount is realized in full, under the certificate.

At this stage, it is relevant to take note of that, this charge so created, vide the Judgment and Order dated 14.12.2017, on the mortgaged property, is the property which has been attached, vide the impugned order.

The record further reveals that proceedings have been filed by the respondent No. 3, before the learned Tribunal, which is presently pending. On 31.01.2019, the Advocate of the respondent No. 3 filed an application in Original Application No. 212/2012, with the following contents, which are reproduced hereinbelow-

“ That the Advocate to the applicant is present today (dated 31:01.2019) before Your Honour

AND

Further to submit herewith that all the action taken and/or resorted by the Certificate Holder Bank under SARFAESI Act, had been withdrawn and hence, prayed before Your Honour to proceed in the matter as per law AND

Further to submit herein, that all the OTS proposal of the Judgment Debtors have been rejected by the Certificate Holder, hence, prayed for attachment of the property, as involved in the matter.”

On the very date, the impugned order was passed, thereby, attaching the mortgaged property and the Branch Head of the respondent No. 3 was authorized on behalf of the learned Tribunal, to take steps for proclamation of attachment, in respect to the attached property. It is under such circumstances, the present proceedings have been filed.

The record reveals that after filing of the instant application, this Court vide an

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order dated 12.04.2019, stayed the order dated 31.01.2019, until further orders, subject to the condition that, within 10.05.2019, the petitioners would deposit a sum of Rs. 2,50,000/- before the learned Tribunal. The record further reveals that the respondent No. 3, thereupon, has filed an affidavit-in-opposition, raising various preliminary issues, as regards the maintainability of the present application.

This Court has duly perused the said affidavit-in-opposition, filed by the respondent No. 3, and there is nothing mentioned that the petitioners were granted opportunity to file any objection to the said application, or that the application so filed, as quoted hereinabove, was in the manner envisaged in the law.

This Court further takes note of that during the pendency of the instant proceedings, the petitioners have brought to the notice of this Court that as the recovery proceedings are ongoing, the petitioners have deposited various amounts before the learned Tribunal and the said having been duly adjusted against the Recovery Certificate, so issued, and there are certain amounts pending.

The learned counsel appearing on behalf of the petitioners, has also submitted before the respondent No. 3, for a one time settlement, which has not been responded to by the respondent No. 3.

This Court has heard the learned counsels appearing on behalf of the parties and given its anxious consideration.

This Court finds it relevant to take note of Section 25 of the Act of 1993, which provides the modes of recovery of the debts. The various modes available to the Recovery Officer, includes the attachment and sale of the movable or immovable property of the defendant/the Certificate Debtor.

This Court further finds it relevant to take note of Section 28 of the Act of 1993, which provides the other modes available with the Recovery Officer, without prejudice to the modes available under Section 25 of the Act of 1993.

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From a perusal of the said provisions, i.e., Section 25 and Section 28 of the Act of 1993, it is apparent that a Recovery Officer has the power to attach the mortgaged property. However, the question involved in the instant proceedings is, as to whether the procedure, by which the Recovery Officer had passed the impugned order, is permissible.

It is the specific case of the petitioners that no opportunity was granted to the petitioners before passing the order and the said application was also not in a manner stipulated in the Debts Recovery Tribunal (Procedure) Rules, 1993. There is no rebuttal to the said contentions of the petitioners in the affidavit-in-opposition.

This Court, taking into account that on the very day, on which, the application was filed, the order was passed without giving any opportunity to the petitioners, is of the opinion that the impugned order violates the principles of natural justice, which comes within the purview of Article 21 of the Constitution, and as such, this Court interferes with the order dated 31.01.2019, passed by the Recovery Officer, in Original Application No. 212/2012. The order of attachment of the immovable property, accordingly, is also interfered with. Accordingly, Annexures-XXXIII and XXXIV of the instant petition, are set aside and quashed.

Before parting with the record, however, this Court finds it relevant to observe that the interference so made by this Court to the order dated 31.01.2019, shall not preclude the learned Recovery Officer, Debts Recovery Tribunal, Guwahati, to pass an order of attachment, in terms with Section 25 (a) of the Act of 1993, or resort to other means available under Sections 25 and 28 of the Act of 1993. However, while doing so, the petitioners have to be put to notice and given a reasonable opportunity.

This Court observes that as vide the Judgment and Order dated 14.12.2017, passed in Original Application No. 212/2012, by the learned Tribunal, has charged the mortgaged property, the petitioners herein, shall not transfer, encumber or charge the said property, till disposal of the recovery proceedings.

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Revision petition, accordingly, stands disposed of, subject to the observation(s), as

made hereinabove.

JUDGE

Comparing Assistant

Procedural history

How this case reached the court

AI extract

Order under challenge
Order dated 31.01.2019 passed by the Recovery Officer, Debts Recovery Tribunal, attaching the mortgaged property described in the Recovery Certificate, together with the subsequent order of attachment issued the same day (Annexures-XXXIII and XXXIV to the petition).¶27
Recovery Officer, Debts Recovery Tribunal, Guwahati · 31.01.2019
Prior proceeding
Respondent No. 3 filed Original Application No. 212/2012 before the Debts Recovery Tribunal, Guwahati seeking a Recovery Certificate for Rs. 21,08,017.83 with future interest @ 11.75% till realization with cost charges.¶30
Prior proceeding
Vide Judgment and Order dated 14.12.2017, the learned Tribunal issued the Recovery Certificate in favour of respondent No. 3 for Rs. 21,08,017.83 against defendant Nos. 1, 2 and 3 jointly and severally, with pendentilite and future interest @ 10% per annum with quarterly rest till realization and cost of the application.¶30
Prior proceeding
The Tribunal directed that a charge of the certificate amount be kept alive on the mortgaged property till the amount is realized in full.¶33
Prior proceeding
On 31.01.2019, the Advocate of respondent No. 3 filed an application in Original Application No. 212/2012 stating that actions under the SARFAESI Act had been withdrawn and that the judgment debtors' OTS proposals had been rejected, praying for attachment of the property.¶39
Prior proceeding
On the very date of the application, the impugned order was passed attaching the mortgaged property, and the Branch Head of respondent No. 3 was authorized to take steps for proclamation of attachment.¶40
Prior proceeding
By order dated 12.04.2019, this Court stayed the order dated 31.01.2019 until further orders, subject to the petitioners depositing Rs. 2,50,000/- before the learned Tribunal by 10.05.2019.¶43
Prior proceeding
Respondent No. 3 filed an affidavit-in-opposition raising various preliminary issues as regards the maintainability of the present application; nothing therein indicated that the petitioners were granted an opportunity to object to the application dated 31.01.2019.¶43
Prior proceeding
During pendency, the petitioners deposited various amounts before the learned Tribunal which were duly adjusted against the Recovery Certificate, with certain amounts pending.¶45
Prior proceeding
The petitioners submitted a one-time settlement proposal to respondent No. 3, which was not responded to.¶46