M/S Pahul Steel Shuttring v. The Debt Recovery Tribunal-Iii And ORS



IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH CWP No.15806 of 2018 (O&M) Decided on 19.09.2018 M/s Pahul Steel Shuttring through its partners Petitioner

Versus

The Debt Recovery Tribunal-III, Chandigarh and others Respondents * * * CORAM : HON'BLE MR. JUSTICE AJAY KUMAR MITTAL, JUDGE HON'BLE MR. JUSTICE AVNEESH JHINGAN, JUDGE Present :

Mr. Parveen Chauhan, Advocate for the petitioner.

Mr. Sumit Batra, Advocate for the respondents.

* * * AVNEESH JHINGAN, J.

The present writ petition has been filed seeking quashing of order dated 15.03.2018 (Annexure P-3) passed by the District Magistrate/Deputy Commissioner-cum-Collector, Kapurthala under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity 'the Act').

2.

The petitioner is a partnership firm. The Debts Recovery Tribunal-III, Chandigarh (for brevity 'the DRT'); United Bank of India, Sector 17, Chandigarh and District Magistrate/Deputy Commissionercum-Collector, Kapurthala have been arrayed as respondents No.1 to 3 respectively, in the writ petition.


3.

The petitioner availed facilities of cash credit and mortgage loan to the tune of
25 lakhs in the year 2013 from respondent No.2. In order to secure the loan, house measuring 7.5 marlas being 15/700 share as comprised in khasra no. 1256(6-1), 1257(3-2), 6818/4090 (7-7), 1259/1(0-13), 1212/1(0-7), Khata No. 312/455 situated at Phagwara Garbi, Tehsil Phagwara, District Kapurthala was mortgaged. 4.

The petitioner defaulted in repayment. Respondent No.2 issued notice under Section 13(2) of the Act on 07.07.2015. As per the notice, there was outstanding amounts of
18,74,679/- in the overdraft account and
6,35,249/- in the mortgage loan, as on 30.06.2015. The respondent-bank moved an application under Section 14 of the Act on 09.02.2018. Respondent No.3 vide order dated 05.03.2018 allowed the application and provided police help for taking over possession of the mortgaged property. In the meantime, the petitioner filed Securitisation Application (SA) before the respondent No.1. The same was numbered as SA No. 63 of 2018. SA was withdrawn by the petitioner on 05.05.2018 by stating that SA would be filed again when the bank will take over the physical possession of the mortgaged property. Relevant portion of the order is reproduced as under:-           



   

  

          

               

     

       

     




       

 On 13.04.2018, respondent No.3 directed the Tehsildar, Phagwara to take possession of the mortgaged property. The bank, on 01.06.2018, affixed the notice for possession of the mortgaged property. The possession of the mortgage property was taken on 01.08.2018. Being aggrieved of the recovery proceedings, the present writ petition has been filed.

6.

Notice of motion was issued on 30.08.2018. Petitioner produced 2 demand drafts totaling
2.5 lakhs to show its bona fides. The same was ordered to be deposited with the respondent-bank and the bank was ordered to accept the same without prejudice to its rights in the writ petition. Status quo was ordered to be maintained regarding possession of the property.

7.

Heard learned counsel for the parties.

8.

Learned counsel for the petitioner argued that the petitioner has suffered irreparable loss as the possession has been taken over. He contended that the impugned order (Annexure P-3) has been wrongly passed by respondent No.3 as the bank had not complied with mandatory provisions of Section 13 of the Act. 9.

Learned counsel for respondent No.2 submitted that the bank had filed Original Application (OA) for recovery of the outstanding amount and the same has been decreed on 14.09.2018. He argued that the petitioner had already filed SA before the DRT and the same was withdrawn that it would be filed again when the bank would takeover the possession. The bank has already taken over the possession, hence, the writ petition is not maintainable.


10.

Petitioner has efficacious alternative remedies available to it to challenge the proceedings under Sections 13(4) and 14 of the Act. There are statutory remedies against the decree dated 14.09.2018 passed in OA.

11.

The Supreme Court in case of Kaniyalal Lalchand Sachdev & others Vs. State of Maharashtra 2011(2) SCC 782 relied upon its earlier decision in Authorised Officer, Indian Overseas Bank & Anr. v. Ashok Saw Mill, (2009) 8 SCC 366 and observed as under:-
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12.

The Supreme Court in United Bank of India Vs. Satyawati Tondon and others (2010) 8 SCC 110, held as under:
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13.

In view of the statutory remedies available with the petitioner and having due regard to the decisions of Supreme Court, the writ petition is disposed of with liberty to the petitioner to avail alternative remedies in accordance with law.

(AJAY KUMAR MITTAL) JUDGE (AVNEESH JHINGAN) JUDGE September 19, 2018 pankaj baweja Whether speaking/reasoned:

Yes / No Whether reportable :

Yes / No