Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2480 of 2013 ====================================================== 1. Jhankar Devi Jain W/O Mohanlal Pugalia Resident Of Village P.O. & P.S. Gargarh, District Churu, Rajasthan, Presently Residing At 61, Kaveri Apartment, Bandar Bagicha, Exhibition Road, P.S. Kotwali, District Patna .... .... Petitioner/s Versus 1. State Bank Of India, Constituted Under The State Bank Of India Act, 1955 Having Its Corporate Office At Nariman Point, Mumbai 2. The Chief General Manager, State Bank Of India, Local Head Office, Judges Court Road, Patna 3. The Authorized Officer, State Bank Of India, Stressed Assets Resolution Branch, Local Head Office, South Gandhi Maidan, Patna 4. The Chief Manager, State Bank Of India, (C & I) Main Branch, South Gandhi Maidan, Patna 5. The Union Of India Through The Registrar, Debts Recovery Tribunal, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Gautam Kumar Kejriwal For the Respondent/s : Mr. N. A. Shamsi ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 4 17-07-2013
Legal Reasoning
Heard Mr. Gautam Kumar Kezriwal for the petitioner and Mr. Santosh Kumar Singh for the respondent State Bank of India. The petitioner has been proceeded against under Securitization of the Financial Assets and Enforcement of Security Interest Act, 2002 (for short “SARFAESI Act") as she stood as a guarantor for extending cash credit facility to M/S Allied Corporation whose proprietors are the sons of the petitioners. The said facility/loan was extended to the borrower sometimes in the Patna High Court CWJC No.2480 of 2013 (4) dt.17-07-2013 2 year 1993. The borrower defaulted in making payments of the outstanding dues of the Bank. This resulted in taking actions against the borrower as well as the guarantor. It appears, the petitioner approached this Court at every stage of the proceedings initiated by the respondent Bank under the said Act. There is, however, no dispute that the petitioner was relegated to filing of appeal under Section 17 of the SARFAESI Act for ventilation of her grievance. SARFAESI Appeal No. 03 of 2013 was filed by the petitioner. The Debts Recovery Tribunal (DRT) by an order dated 08.01.2013 passed therein directed the petitioner to deposit 40 % of the sale notice. While doing so, the DRT observed as under: “Ld. counsel for the applicant has raised a vital question that earlier the property in question had been valued at Rs. 20 lacs and at present reduced to Rs. 7.56 lacs. This point be specifically answered by the respondent bank along with the other points raised by the applicant.” The case was adjourned to 22.01.2013. On 22.01.2013, the DRT passed the following order which has been impugned in the present writ petition:
Decision
“Both sides are present. Ld. counsel for bank has filed reply. Heard the parties. The party has already approached the Hon’ble High Court in CWJC no. 6162 of 2012 and earlier CWJC no. 8599/2011 and the Hon’ble High Court has disposed off both the cases observing the borrower and guarantors are mother and sons and liberty was given this Tribunal. Accordingly, this Appeal has been filed and vide order dated 8.1.2013, the applicant has deposited file appeal before to Patna High Court CWJC No.2480 of 2013 (4) dt.17-07-2013 3 the 40% amount of notice with the bank. Accordingly, the applicant is further directed to deposit the rest amount of notice within 15 days from today along with paper publication cost and 50 % and SARFAESI cost with proper receipts. Accordingly, this SA stands disposed off. A copy of this order be given to the parties.” Learned counsel for the petitioner has submitted that the DRT has noticed in the previous order dated 08.01.2013 that issue relating to slashing down the price of the mortgaged property was a vital issue raised by the appellant for consideration in the said appeal. The petitioner has stated as under in paragraph 14: “14 That the Learned Presiding Officer without considering the stage of the case that the reply on behalf of the bank was served upon the Petitioner right on 22.1.2013, i.e. a few minutes ahead of the hearing, when the matter was called out, rejected the prayer of the Petitioner and proceeded to pass final order disposing off the Sarfaesi Application by directing the Petitioner to pay the balance of the Sale Notice amount within a period of 15 days from 22.1.2013 and also 50 % of other expenses. The said order and its tenure would itself reflect the manner in which the Learned Presiding Officer, Debts Recovery Tribunal, Patna dispose off the matter without considering any of the issues raised by the Petitioner and its reply by the Respondent Bank.” It has been submitted that without giving a fair and reasonable opportunity permitting her to consider the statements made in the reply by the respondent Bank and affording an opportunity of hearing, the impugned order has been passed. It has been stated that on bare perusal of said order dated 22.01.2013 Patna High Court CWJC No.2480 of 2013 (4) dt.17-07-2013 4 (Annexure-8), it would appear that the DRT did not consider the relevant issues raised in the said appeal notice whereof was taken in the order dated 08.01.2013. Learned counsel submits that the DRT is legally obliged to consider issue of facts and law raised in the application. The order impugned does not reflect the same. Learned counsel for the Bank, on the other hand, submits that the matter was pending before the said authority for quite sometime. The petitioner had filed several writ petitions which were disposed of by this Court. The Tribunal took notice of those order(s) and disposed of the appeal. Learned counsel drew attention of the Court to the relevant statements made in the counter affidavit. Be that as it may, if an issue has been raised by the aggrieved party before the DRT constituted under the Act for resolution thereof, the same is required to be considered. This Court does not find such consideration in the impugned order. The appellant is entitled to a fair deal of the proceeding. Manifestly, the petitioner was not given an opportunity to make submissions before the disposal of the said matter inasmuch as the impugned order does not address the issue earlier noticed by it. Regard being had to the above, this Court overruling the objection of the petitioner that the order impugned is Patna High Court CWJC No.2480 of 2013 (4) dt.17-07-2013 5 appealable, disposes of the application by the following order: Let the petitioner deposit 25% of the sale notice and approach the DRT within 10 days for rehearing and disposal of the SARFAESI Appeal No. 03 of 2013. In the event such an application is filed, the DRT shall fix a date for hearing of the matter and thereafter will proceed to dispose of the SARFAESI Appeal No. 3 of 2013 afresh in accordance with law. In doing so, the DRT shall not be, in any manner, precluded by the order dated 22.01.2013 passed in SARFAESI Appeal No. 3 of 2013. Pankaj/- (Kishore Kumar Mandal, J)