Point of Law:
It is a settled rule of interpretation that if one construction leads to a conflict, whereas on another construction, two Acts can be harmoniously constructed then the latter must be adopted. If an interpretation is given that the Sick Industrial Companies (Special Provisions) Act, 1985, is to prevail then there would be a clear conflict. However, there would be no conflict if it is held that the 1992 Act is to prevail.

JUDGMENT

J.B.PARDIWALA, J.

1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a Nationalized Bank, has prayed for the following reliefs;

(A) YOUR LORDSHIPS may be pleased to admit the petition.

(B) YOUR LORDSHIP may be pleased to issue a writ of certiorari or any other appropriate writ, direction and/or order in the nature of certiorari quashing and setting aside order of attachment dated 11.2.2014 at Annexure-B to the petition as well as letter addressed to the petitioner dated 1.8.2014 at Annexure-C to the petition as well as recovery proceedings initiated in pursuance of the above mentioned attachment order and noting of the charge in revenue record of the Revenue Survey No.7,8 and 9 at village: Vadadala, Taluka & Dist. Bharuch.

(C) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or any other appropriate writ, direction and/or order in the nature of mandamus, directing the respondent No.2 to treat order of attachment dated 11.2.2014 at Annexure-B to the petition as well as letter addressed to the petitioner dat5ed 1.8.2014 at Annexure-C to the petition as well as recovery proceedings initiated in pursuance of the above mentioned attachment order and noting of the charge in revenue record of the Revenue Recovery Survey Nos.7,8 and 9 at village: Vadadala, Taluka & Dist: Bharuch as null and void and of no effect.

(D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to stay the operation and implementation of the order of attachment dated 11.2.2014 at Annexure-B to the petition as well as further proceedings of the letter addressed to the petitioner dated 1.8.2014 at Annexure-C to the petition in the interest of justice.

(E) Your Lordships may be pleased to award any such other and further relief as may be deemed just and expedient in the interest of justice.”

2. The facts, giving rise to this writ application, may be summarized as under;

2.1 The writ applicant-Bank sanctioned credit facilities in favour of the respondent No.4, namely, the Multi Arc Coating & Straps Ltd. jointly with the Punjab National Bank. The term loan was sanctioned for setting up a factory. This transaction between the two Banks and the borrower Company took place sometime in the year 2007. It is not in dispute that the Company mortgaged its immovable properties with the writ applicant Bank as well as the other consortium Banks. The immovable properties consisted of land, building, shares and other fixed machinery and plant.

2.2 The respondent No.5 borrower failed to pay the interest and installments of the various credit facilities granted. In such circumstances, the loan account of the borrower Company was classified as a Non Performing Asset (NPA) with effect from 30th June, 2009 as per the RBI Guidelines.

2.3 The writ applicant-Bank along with the consortium Bank, namely, Punjab National Bank, took over the physical possession of the mortgaged property on 2nd March, 2013 under the provisions of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (for short “the SARFAESI Act”).

2.4 According to the writ applicant, the total dues of the consortium Banks as on 01.07.2013 was about Rs.17.45 Crore. The dues payable to the writ applicant comes to around Rs.13.47 Crore at the relevant point of time, whereas the dues recoverable by the Punjab National Bank, at the relevant point of time, was Rs.3.98 Crore.

2.5 It is the case of the writ applicant that after following the due process of law under the provisions of the SARFAESI Act, the physical possession of the secured assets was taken over after serving notice under Section 13(2) of the SARFAESI Act. Thereafter, E-auction was conducted with regard to the secured mortgaged properties on 16th August, 2013 by fixing the reserve price at Rs.8.20 Crore and, thereafter, another