Coastal Seaways Island Pvt. Ltd. And ANR. v. Andaman And Nicobar State Cooperative Bank Limited And ANR.

IN THE HIGH COUR AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] ...

MAT/739/2020 IA: CAN/1/2021 Coastal Seaways Island Pvt. Ltd.

and another ... Appellants Vs.

Andaman and Nicobar State Cooperative Bank Limited and another ... Respondents Mr.Gopala Binnu Kumar, Advocate ... for the appellants Mr.K.Viswanathan, Mr.U.Menon, Mr.Lokesh Chezian, Advocates ... for the respondents November 16, 2021 [GNC] Item No.12 The appeal is directed against the judgment and order dated 19th September, 2020 passed in WPA No.6024 of 2020. By the order the writ petition filed by a borrower-debtor was dismissed.

The grievance of the petitioner is that the Bank, pursuant to the decision of the Supreme Court in Pandurang Ganpati Chaugule Vs. Vishwasrao patil Murgud Sahakari Bank Limited reported in 2020 SCC Online SC 431, had initiated proceedings under the Secruritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and has issued notice under section 13(2) thereof. Proceedings in arbitration under the Andaman and Nicobar Islands Cooperative Societies Regulations, 1973, particularly Section 50 thereof were already pending.

It is submitted by Mr.Gopala Binnu Kumar, learned counsel for the appellants that the decision referred to by the

learned Single Bench i.e. M.D.Frozen Foods Exports Private Limited and others Vs. Hero Fincorp Limited, reported in 2017

(16) SCC 741 has no manner of application in the facts of the case. It is submitted that the facts of the said case are different in the sense that the arbitration proceedings were instituted simultaneously with the SARFAESI proceedings. The application of Standard Chartered Bank Vs. V.Noble Kumar and others reported in (2013) 9 SCC 620, has also been questioned. This parties appear to have forgotten that there is no cause of action in law in respect of the proceedings taken out under section 13(2) of SARFAESI Act, 2002. The cause of action if any of the borrower, against SARFAESI proceedings would arise only after issuance of notice under section 13(4) of the Act of 2002. The writ petition itself was therefore not maintainable in the first place.

It is equally well settled that the SARFAESI Act and the proceedings thereunder are in addition to and not in derogation of any other remedy available to the secured creditor under the law. The Bank therefore was entitled to take out the proceedings under the SARFAESI Act 2002 notwithstanding pendency of the proceedings under Section 50 of aforesaid the Regulations of 1973.

The impugned judgment does not call for any interference. In that view of the matter, MAT No.739 of 2020 stands dismissed.

In view of the above, the application being CAN No.1/2021 also stands dismissed.

The order of the learned Single Bench reserving any other right or remedy that the writ petitioners may have under available law inter alia under the SARFAESI Act 2002, shall continue to be available to the writ petitioners. (Rajasekhar Mantha, J. ) ( Amrita Sinha, J. )