Rattan Mould Industries And ANR v. State Of Punjab And ORS



IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH CWP No.7650 of 2017 (O&M) Decided on 01.10.2018 Rattan Mould Industries, Fatehgarh Sahib and another Petitioners

Versus

State of Punjab and others Respondents * * * CORAM : HON'BLE MR. JUSTICE AJAY KUMAR MITTAL HON'BLE MR. JUSTICE AVNEESH JHINGAN Present :

Mr. Gitish Bhardwaj, Advocate for the petitioners.

* * * AVNEESH JHINGAN, J.

The present writ petition has been filed seeking quashing of notice dated 26.07.2016 (Annexure P-1) issued under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity 'the Act') and notice dated 31.03.2016 (Annexure P-2) issued under Section 13(2) of the Act. Further prayer for quashing of order dated 25.01.2017 (Annexure P-3) passed under Section 14 of the Act and order dated 21.03.2017 (Annexure P-4) passed by the District Magistrate, Fatehgarh Sahib.

2.

Petitioner No.1 is a partnership firm. Petitioner No.2 is partner of petitioner No.1-firm. State of Punjab; ICICI Bank Ld., Rohini, New Delhi; ICICI Bank Ltd., Jhandewalan Ext., New Delhi; Authorised Officer, ICICI Home Finance Ltd., Chandigarh and ICICI


Home Finance Ltd., G.T. Road, Bathinda have been arrayed as respondents No.1 to 5, respectively, in this writ petition. 3.

The petitioners availed a loan of
46 lakhs from respondent No.3 on 09.04.2006. In order to secure the loan, property bearing Khatoni No.345-483, Khasra No.42//11/3 (4-5), 18/2, (3-3) 19, (9-11), 20/1(5-8) 22/1 (6-4) 22/2/2 (1-1) 23/1(6-0) Plot No. 302, Sector 3C, GT Road, Main Bazar, Mandi Gobindgarh, Fatehgarh Sahib, was mortgaged. The said loan was assigned to respondent No.5 on 17.03.2014. There was a default in repayment of the monthly installments. The account was classified as Non-Performing Asset (NPA). Respondent No.5-bank issued notices under Section 13(2) and Section 13(4) of the Act. As per notice issued under Section 13(2) of the Act, there was an outstanding amount of
45,36,069/-, as on 31.03.2016. Respondent No.5 moved an application under Section 14 of the Act.

Summons were issued by the District Magistrate to the petitioners. The Advocate for the petitioners appeared on one date and thereafter, he never appeared for 10 dates. An ex-parte order dated 25.01.2017 was passed for providing police help for taking over physical possession of the mortgaged property. The petitioner filed review application before the District Magistrate. The same was dismissed vide order dated 21.03.2017.

4.

Aggrieved of the recovery proceedings, the present writ petition has been filed.

5.

On 13.04.2017, the petitioners furnished demand drafts totalling to
10 lakhs and undertook that an additional amount of
10 lakhs will be paid within a period of four weeks. Notice of motion


was issued. Dispossession of the petitioners from the mortgaged property was ordered to be stayed. The demand drafts were allowed to be encashed by the respondent No.5 without prejudice to its rights in the pending petition. During the pendency of the writ petition, a sum of
10 lakhs was kept with the Registrar (Judicial) of this Court in the shape of a Fixed Deposit.

6.

Learned counsel for the petitioners contended that there was no service of notices issued under Section 13(2) and Section 13

(4) of the Act. It was argued that the detail of mortgaged property had been wrongly mentioned in the notices. It was, further, submitted that the District Magistrate erred in passing an ex-parte order under Section 14 of the Act.

7.

The challenge in the present writ petition is to notice issued under Section 13(4) of the Act and to order passed under Section 14 of the Act. The petitioners have statutory alternative remedies available under Section 17 of the Act. 8.

Section 17(1) of the Act is reproduced below :-


   



  
 





 

  







    





  

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Section 17 provides for filing of an application by any person aggrieved of any of the measures taken under Section 13(4) of the Act. Section 17 provides remedy even for an action taken after the stages contemplated under Section 13(4) of the Act. 10.

The Supreme Court in the 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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In the present writ petition, the disputed question of facts have been raised regarding service of the notice and detail of property mortgaged. Moreover, an efficacious remedy under Section 17 of the Act is available to the petitioner.

12.

The writ petition is dismissed with liberty to the petitioner to avail alternative remedies available to it in accordance with law. 13.

The Fixed Deposit of
10 lakhs lying with the Registrar (Judicial) be released to respondent No.5, to be appropriated against outstanding amount of the petitioners.

(AJAY KUMAR MITTAL) JUDGE (AVNEESH JHINGAN) JUDGE October 01, 2018 pankaj baweja Whether speaking/reasoned:

Yes / No Whether reportable :

Yes / No