PARTHAPRATIM PHUKAN v. PUNJAB NATIONAL BANK

REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE SHRI MUKESH ADUKIA PRESIDENT OF SPANISH GARDEN R.G. BARUAH ROAD GHY- 5 Page No.# 2/7 Advocate for the Petitioner : MR. R DUBEY Advocate for the Respondent : SC, PNB BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER Date : 07.09.2022 (R.M. Chhaya, CJ.) Heard Mr. R. Dubey, learned counsel for the petitioner. Also heard Mr. A. Ganguly, learned standing counsel, Punjab National Bank, appearing for the respondent Nos.1, 2 & 3 and Mr. R. Sarma, learned counsel, appearing for the respondent No.4. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for, the following relief:-

In the premises aforesaid it is respectfully prayed that Your Lordships would be pleased to issue a notice of show cause to the respondents as to why a writ of certiorari should not be issued to the respondents to forthwith cancel/recall/ rescind the sale notices dated 10.05.2021 and 08.07.2021 issued by the respondent bank so far it relates to petitioner's property and/or a writ of certiorari should not be issued quashing the sale certificate dated 13.08.2021 issued in favour of respondent no.4 in terms of auction notice dated 10.05.2021 and upon cause or causes that may be shown and after hearing the parties may be pleased to make the Rule absolute and/or may pass such further order or orders as your Lordship's may deem fit and proper in the facts and circumstances of the case so as to give full and complete relief to the petitioner. -AND- In the interim be pleased to pass an interim order staying the operation of the Page No.# 3/7 impugned sale notices dated 10.05.2021 and 08.07.2021 issued by the respondent bank for sale of the properties of the petitioner and/or direct the respondent bank not give effect to the sale pursuant to the impugned sale notices dated 10.05.2021 and 08.07.2021 till disposal of the instant writ petition.

Several contentions and more particularly contention to the effect that there is a clear cut breach of the process, more particularly under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “the SARFAESI Act”) and the relevant Rules.

This Court, by an order dated 12.08.2021, passed the following order:-

The matter has been taken up today through video conferencing. Heard Mr. R. Dubey, learned counsel for the petitioner. Also heard Mr. A. Ganguly, learned counsel appearing for the respondent bank. Put up on 16.08.2021. Till the next date fixed, the auction sale, which has been challenged in this writ petition, may go on but shall not be finalized. Meanwhile, the petitioner shall come up with a proposal as to how much money he is prepared to deposit against the loan taken by him.

The said interim relief has continued till date. The parties have exchanged pleadings and the respondents have denied the same and the same has been reiterated by the petitioner. However, the fact remains that even according to the petitioner, the loan was sanctioned in favour of the petitioner on 07.07.2015 as per the sanction communication at Annexure-1 to the petition and the loan is unpaid.

It is a matter of record that what has been challenged in the petition under Article 226 of the Constitution are the proceedings initiated by the respondent Bank under the provisions of the SARFAESI Act and more particularly, the notice issued under Section 13(8) of the SARFAESI Act read with the relevant Rules. Though the petition has been entertained at the initial stage, the fact Page No.# 4/7 remains that the petitioner has an alternative efficacious remedy by way of filing an appeal under Section 17 of the SARFAESI Act, more particularly, considering the peculiar facts arising out of this petition, we deem it fit not to exercise our extra-ordinary jurisdiction under Article 226 of the Constitution of India when the petitioner has got an alternative remedy. Reference be made to the judgment of the Apex Court in the case of Authorized Officer, State Bank of Travancore & Anr. -Vs- Mathew K.C., reported in AIR 2018 SC 676, wherein it was observed as under: “9.

The statement of objects and reasons of the SARFAESI Act states that the banking and financial sector in the country was felt not to have a level playing field in comparison to other participants in the financial markets in the world. The financial institutions in India did not have the power to take possession of securities and sell them. The existing legal framework relating to commercial transactions had not kept pace with changing commercial practices and financial sector reforms resulting in tardy recovery of defaulting loans and mounting non-performing assets of banks and financial institutions. The Narasimhan Committee I and II as also the Andhyarujina Committee constituted by the Central Government Act had suggested enactment of new legislation for securitisation and empowering banks and financial institutions to take possession of securities and sell them without court intervention which would enable them to realise long-term assets, manage problems of liquidity, asset liability mismatches and improve recovery.

The proceedings under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as ‘the DRT Act’) with passage of time, had become synonymous with those before regular courts affecting expeditious adjudication. All these aspects have not been kept in mind and considered before passing the impugned order.