M/S KSHEERA MILK FOOD PVT. LTD, VALABELLARY ROAD, PWD CAMP, SINDHANUR, DIST v. BRANCH MANAGER, CANARA BANK, SINDHANUR BRANCH AT

This petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned sale notice N0.REF.201 1 SARFAESI dated 12.01.2012 issued by iespondent as at Annexure — “G to the writ petition. This petition coming on for Preliminary Hearing this day, the Court made the following: 2 ORDER Petitioner herein is challenging the proceedings initiated by respondent for recovery of the debt due from the petitioner initiating proceedings under Section 13(4) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, i.e., by attaching the property of the petitioner and bringing the same for sale in public auction.

Brief facts leading to this petition are that the petitioner herein borrowed a sum of Rs.50/- lakhs from the respondent on term loan for purchase of machinaries to locate processing, packing chilled milk unit and also another loan in a sum of Rs3/- lakhs as working capital for running the said unit. Since the petitioner did not repay the entire loan amount in the terms agreed between the petitioner and the bank, proceedings are initiated for attachment and sale of property belonging to petitioner by issuing notice of sale vide Annexure — “G”. The said notice dated 12.01,2012 was published in Vijaya Karnataka, Kannada Daily dated

14.01.2012. Petitioner being aggrieved by the same, has come up with this petition challenging the same.

Heard the counsel for petitioner. Perused the grounds urged in the writ petition and also the documents filed in support thereof. It is clearly seen that the present writ petition is not maintainable in as much as under similar circumstances the Apex Court in the matter of United Bank of India Vs. Satyawati Tondon and others reported in AIR 2010 SC-3413 has observed that the remedy available to the borrower is not in filing the writ petition. It is observed that any notice under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, can be challenged only before the Debt Recovery Tribunal as provided under the Act and not by invoking the writ jurisdiction under Articles 226 of the Constitution of India. It is also observed by the Apex Court in the aforesaid judgment that even if writ petitions are filed, the High Court should not ordinarily entertain such writ petition and interfere with the procedure provided under the Act for recovery of the dues. In 4 view of the observations made by the Apex Court in the aforesaid matter, this Court is of the opinion that this petition does not survive for consideration and therefore the same is required to be dismissed.

However, while dismissing the writ petition, considering the prayer of learned counsel for petitioner, liberty is reserved to petitioner to approach the Debt Recovery Tribunal against sale notice dated 12.01.2012 published in Vijaya Karnataka, Kannada Daily on 14.01.2012 in appropriate proceedings to be initiated before the Debt Recovery Tribunal. To enable the petitioner to approach the Tribunal to seek suitable relief, while reserving liberty to the petitioner to approach the Tribunal, is just and necessary that respondent herein should not proceed with the sale of the property pursuant to the aforesaid notice for four weeks from this day.

If the petitioner herein fail to approach the Tribunal and secured any relief within the time stipulated hereinabove, it is 5 open for the respondent herein to proceed with the sale after expiny of four weeks from today.