The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13595 of 2024 M/s Bapuji Gramya Silpadyog Samiti & anr. …. Petitioners Mr. B.S. Das, Advocate -versus- Chief Manager/ Authorized Officer Orissa Gramya Bank & anr. …. Opp. Parties Mr. Tuna Sahu, Advocate CORAM: THE HON’BLE MR. JUSTICE S.K. SAHOO THE HON’BLE MR. JUSTICE S.K. MISHRA ORDER 28.05.2024 Order No. 01. 1. This matter is taken up through Hybrid arrangement (video conferencing/physical mode). 2. The Petitioners have preferred the Writ Petition with a prayer to direct the Opposite Parties-Bank not to sell properties under sale notice issued and published in the Daily Samaj dated 26.04.2024 till disposal of the Interim Application pending before the learned Debts Recovery Tribunal, Cuttack in S.A. No.49 of 2024, which is stated to be pending and is
Decision
yet to be disposed of. 3. The brief background facts which led to the filing Page 1 of 7 of the present Writ Petition, are that the Opposite Party No.1- Bank filed O.A. No.369 of 2009 before the Debts Recovery Tribunal, Cuttack, (shortly, hereinafter the “DRT”, Cuttack) against the Petitioners Samiti for realization of an amount of Rs.82,99,284/- (rupees eighty two lakhs ninety nine thousand and two hundred eighty four) with subsequent pendente lite and future interest at the rate of 20% per annum with compounded quarterly interest till the full and final satisfaction dues, and for sale of suit schedule-A mortgaged properties and for a direction that the sale proceeds be paid to the loan account with the Opposite Party No.2-Bank and to realize through sale jointly and severally. 4. On being noticed in O.A. No.369 of 2009, the Petitioners and other members of the Samiti appeared and filed their joint Written Statement challenging the maintainability of the said O.A. against the Petitioners. 5. During pendency of the said Original Application before the DRT, the Opposite Party-Bank issued notice to the Petitioners under section 13(2) of the SARFAESI Act, 2002, inter alia, stating therein that since the borrowers/mortgagors have failed to meet the liabilities in respect of the credit facilities, they are called upon to pay in full and discharge their liabilities to the Bank for an amount of Rs.41,30,891/- (rupees forty one lakhs thirty thousand eight hundred ninety Page 2 of 7 one) with further interest at the rate of 18% per annum compound with monthly interest within 60 days from the date of receipt of the said notice. 6. The said notice was issued by the Bank under rule 8(1) of the Security Interest Rules, 2002, which was affixed in the schedule land of the Petitioner No.1 and it was cautioned to the petitioners not to deal with property, indicating in the said note that any dealing with the said property shall be subject to the charge of Odisha Gramya Bank for an amount of Rs.41,30,891/- (rupees forty one lakhs thirty thousand eight hundred ninety one) as on 16.09.2024 with interest thereon at contractual rates as agreed charges till the date of payment. 7. Being aggrieved by the said possession notice, the Petitioners, finding no other way out, filed an Appeal on 26.03.2004 before the DRT, which has been registered as S.A. No.49 of 2024. 8. The further case of the Petitioners is that the learned DRT has been pleased to issue notice to the Opposite Parties on 23.04.2024. After receiving the said notice from the DRT, Cuttack, the Opposite Parties-Bank issued sale notice to the Petitioners on 26.04.2004, which was published in Daily Samaj dated 26.04.2024. 9. The Petitioners filed an application for amendment in S.A. No.49 of 2024 on 11.05.2024 Page 3 of 7 incorporating the said sale notice with another application for stay of proceedings initiated against the Petitioners, after serving copy of the same on the Opposite Parties. 10. Thereafter, though the matter was listed before the DRT, Cuttack on 14.05.2024 and 17.05.2024, after hearing the parties at length, the learned DRT posted the matter to 20.05.2024 for filing objection as well as for filing of date chart by the parties. On 20.05.2024, the Opposite Parties-Bank filed their Objections to both the Interim Applications so also in S.A. No.49 of 2024 and the matter stood adjourned to 28.05.2024, instead of fixing an early date i.e. either on 21.05.2024 or 22.05.2024, despite the prayer made by the learned counsel for the petitioners before the DRT, Cuttack, showing urgency of the matter, particularly in the wake of the sale notice given by the Bank. 11. It is the further case of the petitioners that on 21.05.2024, the Petitioners’ Counsel moved before the learned DRT, Cuttack, for listing of the matter before 28.05.2024 and passing of an interim order, but the learned DRT did not give any heed to the grievance of the Petitioners and posted the matter to 28.05.2024, even though there is no chance of taking up the said matter on 28.05.2024 i.e. today, since the Presiding Officer might not be available on account of Vacation. Page 4 of 7 12. Hence, being aggrieved by non-passing of interim order and non-taking of the application for stay before 28.05.2024, being remediless, the Petitioners have approached this writ court with a prayer to direct the Opposite Parties-Bank not to sale the properties of the Petitioners under the sale notice published in the daily Samaj dated 26.04.2024 till disposal of its interim applications pending before the learned DRT, Cuttack. 13. Though the matter is under the heading “Fresh Admission”, Mr. Tuna Sahu, learned counsel is present and accepts notice on behalf of the opposite party nos.1 & 2 and admits to have received copy of the writ petition so also Interim Application. 14. Heard Mr. B. S. Das, learned counsel for the Petitioners so also Mr. T. Sahu, learned counsel for the Opposite Parties-Bank. 15. Mr. Sahu, learned counsel for the Bank submits that petitioners should make deposit of substantial amount with the Bank and opposed to the maintainability of the Writ Petition. 16. In view of the averments made in the Writ Petition, so also submission made by the learned counsel for the Petitioners showing urgency for interim protection, since the DRT, Cuttack is stated to be not functioning regularly during the Summer Vacation, the Writ Petition stands disposed of at the stage of admission with an observation that irrespective of the Page 5 of 7 stand taken by the Petitioners in S.A. No.49 of 2024 so also O.A. No.369 of 2009, preferred by the Opposite Party No.1-Bank, which are now pending before the DRT, Cuttack, the Petitioners shall deposit Rs.10,00,000/- (Rupees Ten Lakh) in two equal installments. The first installment shall be deposited within a week hence and the second installment shall be deposited within a week thereafter with the Opposite Party No.1-Bank. The said deposits to be made by the Petitioners shall be subject to final outcome of S.A. No.49 of 2024. 17. The Opposite Party Nos.1 & 2-Bank are at liberty to proceed with auction sale but they are directed not to finalize the sale pursuant to the sale notice dated 26.04.2024, as at Annexure-8, vide which the date of sale of the suit property has been fixed to tomorrow (29.05.2024), till the DRT, Cuttack, takes up the Interim Applications of the Petitioners filed in S.A. No.49 of 2024. 18. It is made clear that if the Petitioners fail to act in terms of the observation made above within the stipulated time frame, the Opposite Parties-Bank shall be at liberty to finalize the sale in accordance with law. It is also made clear that we have expressed no opinion about the merits of O.A. and S.A. so also the Interim Applications stated to be pending before the DRT, Cuttack. Page 6 of 7 19. Accordingly, the Writ Petition is disposed of. 20. Urgent certified copy of this order be granted on proper application as per rules. (Vacation Judge) S.K. Sahoo (Vacation Judge) S.K. Mishra Banita Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 29-May-2024 12:38:03 Page 7 of 7