JUDGMENT :

(Apurba Sinha Ray, J.)

Backdrop :

The brief factual matrix of the case is that the appellant took loan from the respondent No. 3 - Bank in April, 2016, for the purpose of purchasing, inter alia, three fishing vessels. Subsequently, the appellant was unable to pay the Estimated Monthly Instalments ("EMI") and after serving letters demanding the requisite repayment upon the appellant, the bank proceeded to repossess the three vessels and attempted to sell the vessels through public auction as the appellant failed to pay the requisite due amount. Being unsuccessful, the bank sold the three vessels to the private respondents on valuable consideration by virtue of private contracts. The appellant, who filed a writ petition challenging the process of auction, withdrew the said writ petition finding that the public auction had become infructuous.

2. After selling the three fishing vessels to the private respondents, a copy of the sale certificate was delivered to the appellant who filed the present round of litigation (being WPA No. 14510 of 2022) on the ground that the Hon'ble Supreme Court has been pleased to extend the provisions of SARFAESI Act, 2002 to Co-operative Banks also, and therefore, before selling the said vessels, the respondent no. 3 - Bank should have issued notice under Section 13(2) of the said Act, 2002. But as the said notice was not served upon the appellant, the entire process of seizing and selling the vessels was beyond the authority of the respondent - Bank.

3. The Bank and the private respondents who purchased the vessels have categorically taken the plea that by virtue of Section 31(d) of the Act, 2002 the application of the provisions of the Act, 2002 has been barred so far as the creation of security interest in respect of the vessels as defined under the Merchant Shipping Act, 1958 are concerned. The term 'vessel' includes fishing vessel. Moreover, the Hon'ble Supreme Court in the relevant case law has been pleased to observe that Co-operative Banks can also avail the recovery process of security interest as per mode prescribed in central legislations like SARFAESI Act, 2002, but the Hon'ble Court did not abrogate the modes of recovery of the security interest as per provision of respective State-Corporative Bank legislations. Further, the agreements concluded between the parties empowered the Bank to take appropriate steps for repossession of the vessels and selling of the same through private contracts, in case the appellant failed to pay the amount due in time.

Submission from the Bar:-

4. According to the appellant, the sole question which falls for determination in this appeal is whether the SARFAESI Act, 2002 is applicable to the Co-operative Banks created under the state legislations or not.

5. Learned counsel, Mr. S. P. Pahari appearing for the appellant has argued that the question has been finally decided by the Hon'ble Apex Court in Pandurang Ganpati Changule v. Vishwasrao Patil Murgud Sahakari Bank Limited reported at (2020) 9 SCC 215, and according to the learned counsel, the Hon'ble Supreme Court has been pleased to observe that the 'Co-operative Banks' are also within the definition of 'banks' under Section 2(1)(c) of the Act, 2002 and therefore the entire process of seizure and sale of the fishing vessels should have been undertaken in accordance with the provisions of the Act, 2002, and as the said provisions were not complied with the entire process is bad in law. It was also submitted that the Director of Fisheries, West Bengal did not accord necessary permission for transferring the ownership of the fishing vessels as per the provisions of the West Bengal Marine Fishing Regulation Act, 1993 in favour of the private respondents. No appeal was preferred against the said order.

5.1. Learned counsel has further argued that the fishing vessel defined under Section 3(12) of the Merchant Shipping Act, 1958 has been excluded from the definition of 'vessel' defined in Section 3(55)