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2020 Supreme(Guj) 712
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.C. RAO, J.
M/s Naitik Gems – Appellant
Versus
Authorised Officer, Religare Finvest Ltd. – Respondent
R/Special Civil Application No. 9326 of 2020
Decided on : 17-09-2020
Advocate Appeared:
For the Appellant :Mr. S.S.Paneshara, ld. Advocate for Mr. DHRUVKUMAR S CHAUHAN
For the Respondent:Mr. Vishwas Shah, ld. Advocate
IMPORTANT POINT
It is only when the amounts under different heads are provided to the borrower that it could raise objection under any of the heads where the borrower finds that the amount quantified is not correct. Without there being any details mentioned in the notice, the very purpose of Sub-Section 3(A) would also be lost to a large extent.
Headnote:
Debt Recovery and Monetary Laws - Securitisation and Reconstruction of Financial Asset and Enforcement of Security Interest Act 2002 - Section 13(3) and 26(D) - Debt Recovery Tribunal - Bank - Loan - Order interim relief was refused by DRT - Challenged - Interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of writ petition and failure to notice subsequent developments in the interregnum - The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference.
Facts of the case :
Case of petitioners that interim relief is refused without recording any reason - Contended that action taken under provisions of Act 2002 - Main contention of the petitioner is that the Notification issued by Ministry of Finance, Government of India does not empower respondent to initiate any action under the provision of SARFESI Act.
Findings of the court:
It is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties - It is time that this tendency stops - There is an outstanding amount of more than Rs. 1.00 Crore, contention raised by petitioners that outstanding amount is less than Rs. 1.00 Crore and therefore DRT has no jurisdiction, does not find impressive.
Result: Petition dismissed.
ORDER :
1. By way of present petition, the petitioners have challenged the order dated 16.7.2020 passed by the learned Presiding Officer of the Debt Recovery Tribunal -2, (hereinafter referred to as “DRT”) Ahmedabad in Securitisation Application No. 200 of 2020. By the said order interim relief was refused by the DRT.
2. It is the case of the petitioners that interim relief is refused without recording any reason. It is contended that action taken under the provisions of Securitisation and Reconstruction of Financial Asset and Enforcement of Security Interest Act 2002 (hereinafter referred to as “SARFESI Act”) is ex-facie without jurisdiction and completely illegal. It is contended that the District Magistrate, Botad has ordered for physical possession of the properties of the petitioners de hors the provisions of the Act and without recording any satisfaction. The main contention of the petitioner is that the Notification dated 5/8/2016 issued by Ministry of Finance, Government of India does not empower respondent to initiate any action under the provision of SARFESI Act.
3. At the time of arguments, learned advocate for the petitioners has drawn the attention of this Court towards 5 different agreements.
4. It is contended that in one of the account the outstanding amount is only Rs. 78,02,000/-. It is vehemently contended that the respondent has clubbed separate loan amount and thereby they enforced unsecured dues against the properties of the petitioners and therefore action is illegal. It is contended that they have not provided any necessary details under Section 13(3) of the SARFESI Act. It is vehemently contended that Tribunal has no jurisdiction and therefore, the respondent is not entitled to take any action under Chapter 3 of the SARFESI Act for enforcement of its alleged security interest over the properties in question and the action of the respondent directly hit by Section 26(D) of the SARFESI Act.
5. In support of his submission, learned advocate for the petitioners has relied upon the judgment in case of Embassy Property Developments Private Limited Vs. State of Karnataka & others [Civil Appeal No. 9170 of 2019] wherein Hon'ble Apex Court has held that even though there is an alternative remedy while exercising the power under Article 226 of Constitution of India, the High Court can certainly look into that order is passed without jurisdiction. He has also relied upon the judgment of this Court passed by the single judge in Special Civil Application No. 6305 of 2020 wherein, this Court has taken a view that there is no satisfaction recorded by the District Magistrate under the provisions of Section 14 of SARFESI Act and the Tribunal has not discussed about anything. Though the contention was raised before DRT, Notice was issued and ad-interim relief was granted. He has also relied upon the judgment of the Division Bench of this Court in Letters Patent Appeal No. 159 of 2020 and allied matters. While confirming the judgment of the single judge, the Hon'ble Division Bench has observed that :-
“28. The words used in Section 13(3) of the SARFAESI Act are “details of the amount payable by the borrower as also the details of the secured assets intended to be enforced by the Secured Creditor.” So, the notice under Section 13(2) of the SARFAESI Act has to necessarily contain the details on the above two counts.
29. Insofar as the first part is concerned i.e. regarding the amount payable by the borrowers, if the intention of the Legislature was only to provide the total outstanding amount or the aggregate amount outstanding and payable by the borrowers, the language would have been different. It would not have been necessary to incorporate Sub-Section (3) in Section 13 of the SARFAESI Act. In Sub-Section (2) of Section 13 of the SARFAESI Act, it is also mentioned that the Secured Creditor may require the borrower by notice in writing to discharge in full his liabilities to the Secured Creditor. The said liabilities would be m
