Manisha Pati & Ors. v. Bank of India & Ors.
Case at a glance
- Bench
- S K SAHOO
Provisions considered
- Constitution of India art. 12
Key paragraphs
- Para 0101. This matter taken up through Hybrid arrangement (video conferencing/physical mode). Mr. Sibadutta Ramaprasad Mishra, learned counsel appears for the opp. party no.5, Chief Manager and Authorized Officer and files Vakalatnama, which is taken on record. This writ petition has been filed by the petitioners…
Judgment
Mr. Sibadutta Ramaprasad Mishra, Advocate (for the opp. party no.5) JUSTICE S.K. SAHOO CORAM: JUSTICE CHITTARANJAN DASH Order No. ORDER 25.11.2024
This matter taken up through Hybrid arrangement (video conferencing/physical mode). Mr. Sibadutta Ramaprasad Mishra, learned counsel appears for the opp. party no.5, Chief Manager and Authorized Officer and files Vakalatnama, which is taken on record. This writ petition has been filed by the petitioners to consider their OTS proposal in the light of the prevailing “Samjhauta Outreach” by the opp. party no.1 and direct to sit for negotiations for the settlement of the loan accounts and the outstanding loans. Learned counsel for the opp. party no.5 submits that in the meantime, the property has already been put to auction and the auction proceeding is in final stage and steps have been taken by the bank under section 19 of SARFAESI Act. In the case of Celir LLP -Vrs.- Bafna Motors (Mumbai) (P) Ltd. reported in (2024) 2 Supreme Court Cases 1, it has been held as follows: “110.3. In accordance with the unamended Section 13(8) of the SARFAESI Act, the right of the borrower to redeem the secured asset was available till the sale or transfer of such secured asset.
In other words, the borrower's right of redemption did not stand terminated on the date of the auction-sale of the secured asset itself and remained alive till the transfer was completed in favour of the auction- purchaser, by registration of the sale certificate and delivery of possession of the secured asset. However, the amended provisions of Section 13(8) of the SARFAESI Act, make it clear that the right of the borrower to redeem the secured asset stands extinguished thereunder on the very date of publication of the notice for public auction under Rule 9(1) of the 2002 Rules. In effect, the right of redemption available to the borrower under the present statutory regime is drastically curtailed and would be available only till the date of publication of the notice under Rule 9(1) of the 2002 Rules and not till the completion of the sale or transfer of the secured asset favour of the auction- purchaser.
The Hon’ble Supreme Court in the case of M/s. South Indian Bank Ltd. & Ors. -Vrs.- Naveen Mathew Philip & Anr. reported in 2023 LiveLaw (SC) 320 has deprecated the interference of the High Courts in matters pertaining to the SARFAESI Act, where efficacious alternative remedy has been prescribed in the statute itself. The Hon’ble Court went on to hold as follows: in a required
16. Approaching the High Court for the consideration of an offer by the borrower is also frowned upon by this Court. A writ of mandamus is a prerogative writ. In the absence of any legal right, the Court cannot exercise the said power. More circumspection transaction, particularly when one of the parties would not come within the purview of Article 12 of the Constitution of India. When a statute prescribes a particular mode, an attempt to circumvent shall not be encouraged by a writ court. A litigant cannot avoid the non- compliance of approaching the Tribunal which requires the prescription of fees and use the constitutional remedy as an alternative.
financial In view of the settled position of law as held hereinabove so also in the case of Kanaiyalal Lalchand Sachdev & Ors. -Vrs.- State of Maharashtra & Ors. reported in (2011) 2 Supreme Court Cases 782, since alternative and efficacious remedy is available to the petitioner, we are not inclined to entertain this writ petition.
However, we grant liberty to the petitioner to file an appeal before the appropriate authority. If such an appeal is filed, the same shall be considered in accordance with law. It is made clear that we have not expressed any opinion on the merits of the case. With this observation, the writ petition stands disposed of. Issue urgent certified copy as per Rules. Judge ( S.K. Sahoo) Judge (Chittaranjan Dash) Rajesh Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 26-Nov-2024 19:27:21
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
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