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2018 Supreme(P&H) 3506
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Ajay Kumar Mittal, Avneesh Jhingan, JJ.
Rattan Mould Industries, Fatehgarh Sahib - Appellants
Versus
State Of Punjab And Others - Respondent
Civil Writ Petition No. 7650 of 2017
Decided On : 01-10-2018
Gitish Bhardwaj, Adv.
The availability of statutory alternative remedies under Section 17 for actions taken under Section 13(4) of the Act.
Headnote:
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Recovery Proceedings - Section 13(2), Section 13(4), Section 14 - Section 17 - The court dismissed the writ petition seeking quashing of notices and orders issued under the Act, highlighting the availability of statutory alternative remedies under Section 17 for actions taken under Section 13(4) of the Act.
Fact of the Case:
The petitioners availed a loan secured by a mortgaged property. After defaulting on repayments, the bank initiated recovery proceedings under the Act. The petitioners filed a writ petition seeking to quash the notices and orders issued under the Act.
Finding of the Court:
The court dismissed the writ petition, emphasizing the availability of statutory alternative remedies under Section 17 for actions taken under Section 13(4) of the Act.
Issues: The disputed issues included the service of notices and the detail of the mortgaged property mentioned in the notices.
Ratio Decidendi: The court highlighted the availability of statutory alternative remedies under Section 17 for actions taken under Section 13(4) of the Act, emphasizing the legislative intent to provide a remedy for errors or wrongful use of powers by the secured creditor.
Final Decision: The writ petition was dismissed with liberty to the petitioner to avail alternative remedies available under Section 17 of the Act.
JUDGMENT
Avneesh Jhingan, J. - The present writ petition has been filed seeking quashing of notice dated 26.07.2016 (Annexure P-1) issued under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity 'the Act') and notice dated 31.03.2016 (Annexure P-2) issued under Section 13(2) of the Act. Further prayer for quashing of order dated 25.01.2017 (Annexure P-3) passed under Section 14 of the Act and order dated 21.03.2017 (Annexure P-4) passed by the District Magistrate, Fatehgarh Sahib.
2. Petitioner No.1 is a partnership firm. Petitioner No.2 is partner of petitioner No.1-firm. State of Punjab; ICICI Bank Ld., Rohini, New Delhi; ICICI Bank Ltd., Jhandewalan Ext., New Delhi; Authorised Officer, ICICI Home Finance Ltd., Chandigarh and ICICI Home Finance Ltd., G.T. Road, Bathinda have been arrayed as respondents No.1 to 5, respectively, in this writ petition.
3. The petitioners availed a loan of Rs. 46 lakhs from respondent No.3 on 09.04.2006. In order to secure the loan, property bearing Khatoni No.345-483, Khasra No.42//11/3 (4-5), 18/2, (3-3) 19, (9-11), 20/1(5-8) 22/1 (6-4) 22/2/2 (1-1) 23/1(6-0) Plot No. 302, Sector 3C, GT Road, Main Bazar, Mandi Gobindgarh, Fatehgarh Sahib, was mortgaged. The said loan was assigned to respondent No.5 on 17.03.2014. There was a default in repayment of the monthly installments. The account was classified as Non-Performing Asset (NPA). Respondent No.5-bank issued notices under Section 13(2) and Section 13(4) of the Act. As per notice issued under Section 13(2) of the Act, there was an outstanding amount of Rs. 45,36,069/-, as on 31.03.2016. Respondent No.5 moved an application under Section 14 of the Act. Summons were issued by the District Magistrate to the petitioners. The Advocate for the petitioners appeared on one date and thereafter, he never appeared for 10 dates. An ex-parte order dated 25.01.2017 was passed for providing police help for taking over physical possession of the mortgaged property. The petitioner filed review application before the District Magistrate. The same was dismissed vide order dated 21.03.2017.
4. Aggrieved of the recovery proceedings, the present writ petition has been filed.
5. On 13.04.2017, the petitioners furnished demand drafts totalling to Rs. 10 lakhs and undertook that an additional amount of Rs. 10 lakhs will be paid within a period of four weeks. Notice of motion was issued. Dispossession of the petitioners from the mortgaged property was ordered to be stayed. The demand drafts were allowed to be encashed by the respondent No.5 without prejudice to its rights in the pending petition. During the pendency of the writ petition, a sum of Rs. 10 lakhs was kept with the Registrar (Judicial) of this Court in the shape of a Fixed Deposit.
6. Learned counsel for the petitioners contended that there was no service of notices issued under Section 13(2) and Section 13 (4) of the Act. It was argued that the detail of mortgaged property had been wrongly mentioned in the notices. It was, further, submitted that the District Magistrate erred in passing an ex-parte order under Section 14 of the Act.
7. The challenge in the present writ petition is to notice issued under Section 13(4) of the Act and to order passed under Section 14 of the Act. The petitioners have statutory alternative remedies available under Section 17 of the Act.
8. Section 17(1) of the Act is reproduced below :-
"17. Application against measures to recover secured debts
(1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section(4) of Section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application alongwith such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within forty five days from the date on which such measures had been taken: Provided that different fees may be prescribed for making the app
