Deep Sea Resort (Andaman) Private Limited And ANR. v. Andaman And Nicobar State Cooperative Bank Limited
IN THE HIGH COURT AT CALCUTTA
[CIRCUIT BENCH AT PORT BLAIR] ...
WPA/502/2023 Deep Sea Resort (Andaman) Private Limited and another
Versus
Andaman and Nicobar State cooperative Bank Limited Mr. S.K.Golder ... for the petitioner Ms. AS Zinu Mr. N.K.Mishra ... for the respondent Bank March 17, 2023 [AKB] Item No.2 Mr. S.K.Golder, learned counsel appeared for the petitioner.
Ms. A.S Zinu, learned advocate appeared for the respondent bank.
Through the instant writ petition the petitioner had challenged the action taken by the respondent bank under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act). The petitioner is a defaulter in respect of a loan granted by the respondent bank and the claim amount mentioned in the said auction notice dated February 18, 2023, Annexure P-10 at page 76 to the writ petition is for a sum of Rs. 2,90,19,267/-. Ms. S.K.Golder, learned counsel for the petitioner submitted that, challenging the said auction notice and the action taken by the bank under Section 14 of the SARFAESI Act, the petitioner had already filed a proceeding under Section 17 of the SARFAESI Act on March 14, 2023, which was registered as SARFAESI OA (SARFAESI No. 34/194/2023). The said Section 17 proceeding was filed before the Kolkata Debts Recovery Tribunal -II having jurisdiction over this territory.
He has further submitted that, at present the bench is not available at the said DRT-II. Learned counsel further submitted that, the petitioner had filed an application seeking stay of auction on March 15, 2023 and the same was filed before the DRT-II and filed a put up application on the same date before the DRT-III Kolkata, which at present has been assigned with the jurisdiction of this territory in view of the non availability of DRT-II. On instruction
learned counsel for the petitioner submitted that, official charge of DRT-II has not yet been handed over to DRT-III. In view of the above, though the forum is made available to the petitioner under the statute but for administrative reason the same has become illusory to the petitioner. The petitioner seeks relief through this writ petition under Article 226 of the Constitution. Ms. A.S.Zinu, learned advocate for the respondent bank submitted that auction is fixed on March 20, 2023. She further submitted that even if auction takes place on March 20, 2023, some considerable time will be required for the bank to finalize the ultimate sale arising out of such auction.
Considering the submissions made on behalf of the parties and considering materials on record, it appeared to this Court that a proceeding under Section 17 had been filed by the petitioner before the jurisdictional DRT but for administrative reason on the part of the administration of the Debt Recovery Tribunal the petitioner could not ventilate its grievance and move the said Section 17 application either before the jurisdictional DRT conferred under the statute or before the DRT to whom the jurisdiction has been assigned for the time being. It is trite by diverse juridical pronouncements that by passing the said statutory remedy under Section 17 of the SARFAESI Act, no writ petition should be entertained. But the facts and circumstances in this case is a special circumstances where despite availing of the statuary remedy, for the administrative reason which is beyond the control of the petitioner, the petitioner could not exert such remedy.
In view of the above, the appropriate authority of the Debt Recovery Tribunal is directed to take an immediate step in the matter in accordance with law to enable the petitioner to move its Section 17 application before the appropriate DRT so that the petitioner should not be remediless and the proceeding already filed by the petitioner should not become illusory. The administration and the appropriate authority of DRT shall immediately take step positively on or before the March 21, 2023, to enable the petitioner to avail of his remedy which has already been filed as stated above.
In the meantime the bank shall proceed with the auction process without any fatter but shall not finalize the sale till March 30, 2023.
This order shall not create any equity or right in favour of the petitioner in any manner. This Court has not considered the merit of the claim of the petitioner which is the subject matter of Section 17 proceeding and the jurisdictional DRT shall be free to proceed with the said Section 17 application on its own merit by applying its
independent mind and without being influenced by any observation made by this Court.
This order being passed in an extraordinary situation as narrated above, shall not be treated as precedence in any manner.
It is once again made clear that, this Court has not expressed any opinion or observation on the merits of the case of the parties to the proceeding in any manner. Since affidavits are not called for, the allegations made in this writ petition are deemed not to have been admitted by the respondents.
On the above terms this Writ Petition being WPA/502/2023 stands disposed of, without any order as to costs.
(Aniruddha Roy, J.)