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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
Akula Venkata Sesha Sai, U. Durga Prasad Rao, JJ.
Vishnutek Engineers Pvt. Ltd. - Appellants
Vs.
Authorised Officer, ASREC (India) Ltd. and Ors. - Respondents
WP No. 2670 of 2019
Decided On : 04-06-2019
Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Section 13(2), 13(3-A), 13(4) – Recovery of Debts Due to Banks and Financial Institutions Act, 1993 – Seeking writ of certiorari calling for the records pertaining to order on file of Debts Recovery Tribunal In-charge Debts Recovery Tribunal, quash the same and consequently set-aside all proceedings initiated against petitioner by respondent- 1 & 2 under SARFAESI Act' as arbitrary, illegal and violative of principles of natural justice – Whether impugned possession notice issued by respondent-2 is legally unsustainable' for want of fresh notice under Section 13(2) of SARFAESI Act – Held, There was no legal provision for facilitating securitization of financial assets of banks and financial institutions – Unlike international banks, banks and financial institutions in India not have power to take possession of securities and sell them – Existing legal framework relating to commercial transactions not kept pace with changing commercial practices and financial sector reforms, which resulted in slow pace of recovery of defaulting loans and mounting levels of Non-Performing Assets of Banks and Financial Institutions – Regard to guidelines issued by RBI is concerned, said argument adequately dealt with by appellate Tribunal – Against contention of petitioner that as per guidelines of RBI, R2 required to declare petitioner's account as NPA and commence proceedings afresh by issuing notice under Section 13(2), R2 contended that guidelines of 2003 issued by RBI with regard to NPA are procedural guidelines to followed by ASREC for purpose of their own books and in that view, mere no necessity to issue fresh demand notice – Petition dismissed (Paras: 8,13 & 14)
Facts of the case:
Seeking writ of certiorari calling for the records pertaining to order on file of Debts Recovery Tribunal In-charge Debts Recovery Tribunal, and quash the same and consequently set-aside all proceedings initiated against petitioner by respondent- 1 & 2 under SARFAESI Act' as arbitrary, illegal and violative of principles of natural justice – Whether impugned possession notice issued by respondent-2 is legally unsustainable' for want of fresh notice under Section 13(2) of SARFAESI Act
Findings of the court:
There was no legal provision for facilitating securitization of financial assets of banks and financial institutions – Unlike international banks, banks and financial institutions in India not have power to take possession of securities and sell them – Existing legal framework relating to commercial transactions not kept pace with changing commercial practices and financial sector reforms, which resulted in slow pace of recovery of defaulting loans and mounting levels of Non-Performing Assets of Banks and Financial Institutions – Contention of petitioner with regard to guidelines issued by RBI is concerned, said argument adequately dealt with by appellate Tribunal – Against contention of petitioner that as per guidelines of RBI, R2 required to declare petitioner's account as NPA and commence proceedings afresh by issuing notice under Section 13(2), R2 contended that guidelines of 2003 issued by RBI with regard to NPA are procedural guidelines to followed by ASREC for purpose of their own books and in that view, mere no necessity to issue fresh demand notice.
Result: Petition dismissed
JUDGMENT :
U. Durga Prasad Rao, J.
1. The petitioner seeks writ of certiorari calling for the records pertaining to order, dated 20.4.2017, in SA No. 278 of 2016 on the file of Debts Recovery Tribunal (for short, 'the DRT'), Visakhapatnam, and the order, dated 8.2.2019, in Appeal No. 209 of 2017 on the file of Debts Recovery Appellate Tribunal (for short, 'the DRAT') at Calcutta, In-charge Debts Recovery Tribunal, Allahabad, and quash the same and consequently set-aside all the proceedings initiated against the petitioner by respondent Nos. 1 and 2 under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'the SARFAESI Act') as arbitrary, illegal and violative of principles of natural justice.
2. The petitioner's case, succinctly, is thus:
(a) The petitioner is a private limited company carrying on business in sales and service of earth moving and material handling machinery and equipment and their lubricants. For their business purpose, the petitioner availed credit facilities from respondent No. 3 (R3) to an extent of Rs. 500.00 lakhs. The Directors of the petitioner company also constituted a Partnership Firm and carrying separate business in the name and style of 'M/s. Vishnu Tek Logistics' a Partnership Firm and the said firm also availed certain finance from R3. The petitioner and the partnership firm went into rough weathers and therefore they defaulted in repaying the loans availed from R3. The loan repayable to R3 is secured by 6 properties narrated in the writ petition, out of which the property shown in Item No. 2 was released in favour of the petitioner by R3 and the property shown as Item No. 5 was subsequently sold by respondent Nos. 1 and 2 (R1 & R2) highhandedly and the same is subject-matter of litigation in SA No. 232 of 2016, pending on the file of DRT, Visakhapatnam.
(b) The further case of the petitioner is that in view of the default committed by the petitioner as well as the partnership firm, R3 initiated proceedings against the petitioner under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, 'the RDDB Act') and the SARFAESI Act. R3 issued notice, dated 12.5.2009, under Section 13(2) of the SARFAESI Act, demanding the petitioner to pay a sum of Rs. 7,14,45,950.03 as on 11.5.2009. The petitioner along with the partnership firm approached R3 for settlement of the loan account under One Time Settlement (OTS) Scheme, as per the norms issued by the Reserve Bank of India. R3 accepted the proposal and agreed to settle the loan account of both the petitioner and partnership firm for a sum of Rs. 640.00 lakhs and communicated the same to petitioner vide letter bearing No. 1729/45/90, dated 30.9.2013. The petitioner and partnership firm, in order to avail the concessions granted under OTS Scheme, together paid rupees one crore immediately. R3 had granted time till 19.12.2013 for payment of balance of Rs. 5.40 crores.
(c) It is further submitted that since the petitioner and its partnership firm were facing financial crunch, they along with R1 & R2 approached R3. The petitioner, R2 and R3 entered into a Tripartite Memorandum of Understanding (MOU) to clear the balance OTS amount. As per the terms of MOU, the balance amount Rs. 5.40 crores under the OTS was agreed to be paid by R2 to R3 and in turn R3 was obligated to assign the financial assets to R2 along with with security interest. In terms of the aforesaid tripartite MOU, R3 after realizing its debt in terms of OTS, executed an Assignment Deed, dated 16.12.2013, in favour of R2 and transferred the loan and securities. Since R3 had recovered all its dues under OTS from the petitioner and the partnership firm, it closed the loan account as on 17.12.2013. After closure of the loan account, R1 & R2 developed an evil intention to knock away the valuable security available with them. They sought to initiate proceedings under Section 13(4) of the SARFAESI Act without issuing
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