High Court
Case Details
I N TH E H I GH COURT OF ORI SSA A T CUTTA CK W .P.( C) N o . 2 0 3 9 8 o f 2 0 2 4 N i m a i n Ch a r a n Ra j ….. Pe t i t i o n e r - versus- ..... Re g i o n a l M a n a g e r , Od i sh a Gr a m y a Ba n k a n d o t h e r s Mr.Prabhu Padarabinda Parida, Advocat e Op p . Pa r t i e s Mr. Sam bit Kum ar Sahoo on behalf of Mr. Tuna Sahoo, Advocat e CORA M : TH E H ON ' BLE M R. JUSTI CE S.K . SA H OO TH E H ON ' BLE M R. JUSTI CE CH I TTA RA N JA N D A SH Or d e r N o .
Decision
ORD ER 0 4 .0 9 .2 0 2 4 01. This m at t er is t aken up t hrough Hybrid arrangem ent ( video conferencing/ physical m ode) . Heard t he learned counsel for t he pet it ioner and learned counsel for t he Bank. The pet it ioner has filed t his writ pet it ion seeking t o quash t he let t er dat ed 13.06.2024 under Annexure- 2 so also t he consequent ial let t er of t he Bank dat ed 07.08.2024 under Annexure- 6. Learned counsel for t he pet it ioner subm it t ed t hat in t erm s of sect ion 13( 3) ( k) of t he Securit isat ion And Reconst ruct ion Of Financial Asset s And Enforcem ent Of Securit y I nt erest Act , 2002 ( hereinaft er, ‘Act , 2002’, in Page 1 of 4 short ) , on receipt of t he not ice under sect ion 13( 2) of t he Act , 2002 from t he opposit e part y no.1- Bank, t he pet it ioner m ade a represent at ion and t he said represent at ion has not been disposed of in accordance wit h law and t herefore, t his Court m ay direct t he aut horit ies t o consider t he sam e afresh in accordance wit h law giving opport unit y of hearing t o t he pet it ioner. Learned counsel appearing for t he Bank, on t he ot her hand, argued t hat as per Annexure- 2 dat ed 13.06.2024, sixt y days t im e as st ipulat ed in t he Act , 2002 was provided t o t he pet it ioner t o m ake a represent at ion and accordingly, t he pet it ioner subm it t ed t he r epresent at ion and aft er going t hrough t he represent at ion, t he Bank found t hat t he valuat ion of t he propert y is Rs.75.04 lakhs, which is m uch m ore t han t he out st anding dues of t he pet it ioner and t he request which has been m ade by t he pet it ioner is not in consonance wit h t he Bank’s recovery policy. Accordingly, vide let t er dat ed 07.08.2024 under Annexure- 6, while disposing of t he represent at ion dat ed 02.08.2024, it was com m unicat ed t o t he pet it ioner t hat considering t he overall m eans of bor rower and m arket abilit y of t he securit ies, t he pet it ioner was advised t o close t he loan account wit h upt o dat e int erest and charges im m ediat ely, failing which t he Bank would be at libert y t o proceed as per our Recovery Policy. Learned counsel furt her subm it t ed t hat in spit e of receipt of t he let t er Page 2 of 4 dat ed 07.08.2024, since t he pet it ioner as a borrower has failed t o discharge his liabilit y, t he Bank is cont em plat ing t o t ake act ion under sect ion 13( 4) of t he Act , 2002. Recent ly, t he Hon’ble Suprem e Court in t he case of M / s. So u t h I n d i a n Ba n k Lt d . & Or s. - Vr s.- N a v e e n M a t h e w Ph i l i p & A n r . r e p o r t e d i n 2 0 2 3 Li v e La w ( SC) 3 2 0 has deprecat ed t he int erference of t he High Court s in m at t ers pert aining t o t he SARFAESI Act , where efficacious alt ernat ive rem edy has been prescribed in t he st at ut e it self. The Hon’ble Court went on t o hold as follows: a in I n for financial required t he High Court is a pr erogat ive writ . t he “ 16. Appr oaching considerat ion of an offer by t he borrower is also frowned upon by t his Court . A writ of m andam us t he absence of any legal right , t he Court cannot exercise t he said power. More circum spect ion is t ransact ion, part icularly when one of t he part ies would not com e wit hin t he purview of Art icle 12 of t he Const it ut ion of st at ut e prescribes a part icular m ode, an at t em pt t o circum vent shall not be encouraged by a writ court . A t he non- lit igant cannot avoid com pliance of approaching t he Tribunal which requires t he prescript ion of fees and use t he const it ut ional rem edy as an alt ernat ive.” I ndia. When a I n view of t he set t led posit ion of law as held hereinabove so also in t he case of H e m r a j Ra t n a k a r Page 3 of 4 Sa l i a n - Vr s.- H D FC Ba n k Lt d . & Or s. Re p o r t e d i n ( 2 0 2 1 ) 2 0 Su p r e m e Co u r t Ca se s 3 9 5 and K a n a i y a l a l La l ch a n d Sa ch d e v & Or s. - Vr s.- St a t e o f M a h a r a sh t r a & Or s. r e p o r t e d i n ( 2 0 1 1 ) 2 Su p r e m e Co u r t Ca se s 7 8 2 , since alt ernat ive and efficacious rem edy is available t o t he pet it ioner, we are not inclined t o int erfere wit h t he order im pugned. However, we grant libert y t o t he pet it ioner t o approach t he appropriat e forum seeking redressal of his grievances. I t is m ade clear t hat we have not expressed any opinion on t he m erit s of t he case. Wit h t his observat ion, t he writ pet it ion st ands disposed of. I ssue urgent cert ified copy as per Rules. Ju d g e ( S.K . Sa h o o ) ( Ch i t t a r a n j a n D a sh ) Ju d g e PKSahoo Signature Not Verified Digitally Signed Signed by: PRAMOD KUMAR SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Sep-2024 14:28:44 Page 4 of 4