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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIPUL M. PANCHOLI, J.
Ajay Hargovindas Jobanputa – Appellant
Versus
The Authorized Officer, Rajkot Nagrik Sahakari Bank – Respondent
R/Special Civil Application No. 5416 of 2020
Decided on : 05-02-2021
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Section 13(2) - Constitution of India, 1950 - Articles 226 and 227 - Bank - Loan - Guarantors/mortgagors of the credit facilities - Defaulted in repayment of loan - Demand Notice - Case of the petitioners that respondent bank had sanctioned credit facilities worth Rs.4.25 crores in favour of M/S. Saurashtra Ginning & Pressing – a partnership firm in the year 2008 - It is stated that petitioners are alleged guarantors/mortgagors of credit facilities granted by respondent bank.
Finding of the court: From the record, it appears that Demand Notice is placed on record at page 56 of compilation. Said notice was issued to partnership firm and copy was sent to all the partners i.e. the present petitioners. From affidavit-in-reply filed by the respondent bank and the documents placed along with the same, it is revealed that after the receipt of the said notice, all petitioners submitted an affidavit and informed to respondent bank that symbolic possession of the properties in question has been taken over by the bank - It is also pertinent to note that respondent bank has already auctioned properties mentioned at serial Nos. A, B, D and E of Demand Notice. It is pointed out by learned advocate for respondent bank that District Magistrate has already passed an order under Section 14 ofAct and thereby permitted the respondent bank to take physical possession of the property. Pursuance thereto, now Mamlatdar issued notice to petitioners and as per said notice, Mamlatdar will take over the physical possession of the said property No error is committed by the DRT while passing the impugned order
Result: Petition dismissed
ORDER :
1. This petition is filed under Articles 226 and 227 of the Constitution of India in which the petitioners have prayed for the following relief/s:
(b) YOUR LORDSHIPS BE PLEASED to pass a writ of certiorari, order or any appropriate writ, order or direction to quash the impugned order dated 19.09.2019 passed in SA No.409 of 2019 by the Ld. Presiding Officer, DRTII at Ahmedabad in the interest of justice.
(c) YOUR LORDSHIPS BE PLEASED to stay the action of the SARFAESI Act dated 13.07.2009 issued by the Respondent bank under the provisions of the SARFAESI Act, 2002 and all subsequent steps pending admission and final disposal of the petition.
(d) YOUR LORDSHIPS BE PLEASED to pass such other and further orders, which may be deemed fit in the interest of justice.”
2. Heard learned advocate Ms. Pandit for learned advocate Mr. A.R.Gupta for the petitioners and learned advocate Mr. Janak Shah for the respondent.
3. The factual matrix of the present case is as under:
3.1. It is the case of the petitioners that respondent bank had sanctioned credit facilities worth Rs.4.25 crores in favour of M/S. Saurashtra Ginning & Pressing – a partnership firm in the year 2008. It is stated that the petitioners are alleged guarantors/mortgagors of the credit facilities granted by the respondent bank.
3.2. It is further stated that the respondent – bank issued Demand Notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the ‘Act’ for short) on 13.07.2009 to the petitioner Nos. 1 and 2, as it is alleged that the principal borrower had defaulted in repayment of loan. As per the said Demand Notice, petitioner Nos. 1 and 2 were asked to pay total amount of Rs.4,48,76,670/. It is stated that the petitioner No.3 has not received such Demand Notice under Section 13(2) of the Act from the respondent bank.
3.3. It is also stated that as per the knowledge of the petitioners, the respondent bank took possession of some of the properties of the principal borrower in the year 2009-2010 and auctioned the same in the year 2018 and as per the information of the petitioners, aggregate amount of Rs.4,33,00,000/has been realized by the bank.
3.4. Petitioners have further stated that after a period of 9 years from the issuance of the Demand Notice, the respondent bank took symbolic possession of the remaining properties on 15.12.2018 and thereafter respondent bank filed an application under Section 14 of the Act before the District Magistrate, Morbi in January, 2019. It is stated that on 06.07.2019, the District Magistrate allowed the said application. The petitioners challenged the order passed by the District Magistrate by filing Securitization Application No.409 of 2019. It was contended in the said application that no Demand Notice was issued to the petitioner No.3 and therefore the securitization action initiated under the Act is illegal and unsustainable. It was also contended that the Demand Notice must be issued to all the borrowers as defined under Section 2(f) of the Act, which also includes mortgagors/guarantors. It is further stated that the Debt Recovery Tribunal (DRT) quashed and set aside the order dated 19.09.2019 passed by the District Magistrate. However, the other contentions of the petitioners were not accepted and therefore petitioners have filed the present petition challenging the aforesaid order dated 19.09.2019 passed by the DRT in Securitization Application No.409 of 2019.
4. Learned advocate Ms. Pandit appearing for the petitioners mainly contended that there is violation of provisions contained in Section 13(2) of the Act. Learne
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