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2011 Supreme(MP) 231
2012(1) JLJ 428
S.C. Sharma, J.
R.K. Traders (M/s.) v. The Chief Engineer, M.P. Paschim Kshetra Vidyut Vitran Co.Ltd., Ujjain
Writ Petition No.1419 of 2011 (Indore); Decided on 17.3.2011.
Lokesh Mehta for petitioner;
Ms. Sudha Shrivastava for respondents No.1 to 4.
Headnote:Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -- Ss.13(4) and 2 -- action under by Bank -- plant and machinery of firm auctioned -- sale certificate issued in favour of purchaser -- electric charges dues upon firm -- auction purchaser never associated with the defaulter firm -- removing the plant and machinery by purchaser -- electricity company cannot restrain the purchaser to take out plant and machinery.
In the present case, the petitioner was never associated at any point of time with M/s. Devkripa Steels Pvt.Ltd., Khategaon and he has purchased the property in an open auction by Canara Bank, under the provisions of SARFAESI Act, 2002, and therefore, the action of the respondents No.1 to 4 in restraining the petitioner to take out the plant and machinery is certainly bad in law and the respondents are directed to permit the petitioner to remove the plant and machinery forthwith. 2010(1) JLJ 211 relied on.
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1. Petitioner before this Court has filed this present petition, being aggrieved by the action of the respondents No.1, 2, 3 and 4 in not permitting the petitioner to take out the plant and machinery, which the petitioner has purchased by way of auction conducted by Canara Bank, Branch Indore.
2. The contention of the petitioner is that he is a scrap dealer and a notice was issued under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, “SARFAESI Act, 2002”) for sale of plant and machinery in respect of factory i.e. M/s. Devkripa Steels Pvt.Ltd., Khategaon. The bid was knocked down in the favour of the petitioner and the petitioner’s contention is that a sale certificate was issued in favour of the petitioner on 17.1.2011. Petitioner further stated that he started removing the plant and machinery, after receiving a letter from Canara Bank and while he was transporting the machinery on 20.1.2011, the premises of the factory was sealed by respondents No.1 to 4 and it was stated by the respondents that they are exercising their powers under the provisions of M.P. Land Revenue Code, 1959 by seizing the property in question. Petitioner’s grievance is that once he has purchased the plant and machinery through an open auction the respondents No.1 to 4 cannot restrain him from removing the same.
3. Reply has been filed on behalf of the respondents No.1 to 4 and the contention of the respondents Madhya Pradesh Paschim Kshetra Vidyut Vitaran Co.Ltd., is that the petitioner is having a remedy under the M.P. Land Revenue Code, 1959, before reviewing authority and the present petition is not maintainable. It is also been stated in the return that the respondents No.1 to 4 have to recover an amount of Rs.25,04,249/- from M/s. Devkripa Steel Pvt.Ltd. and, therefore, they have rightly initiated action against M/s. Devkripa Steel Pvt.Ltd., under the provisions M.P. Land Revenue Code, 1959. Respondents have prayed for dismissal of the present writ petition.
4. Heard learned counsel appearing for respondent No.5 Canara Bank. He has submitted before this Court that the Bank has disposed of the plant and machinery by holding an auction proceedings and a sale certificate was issued, keeping in view the provisions of SARFAESI Act, 2002, and the respondents No.1 to 4 cannot be permitted to interfere in the matter. Respondent Bank has supported the contention of the petitioner.
5. Heard learned counsel for the parties and perused the record. The matter is being disposed of at motion hearing stage itself with the consent of the parties.
6. In the present case, it is not disputed that under the provisions of SARFAESI Act, 2002, action was initiated against M/s. Devkripa Steels Pvt.Ltd., Khategaon and plant and machinery has been auctioned by respondent No.5, Canara Bank. A sale certificate was also issued in favour of the petitioner and petitioner has also partly removed the plant and machinery from the premises in question. Madhya Pradesh Paschim Kshetra Vidyut Vitaran Co.Ltd. on account of the fact that they have to recover electricity dues from M/s. Devkripa Steels Pvt.Ltd., have attached the entire plant and machinery after it was auctioned by the Bank on 20.1.2011. A Division Bench of this Court in the case of M.P. Paschim Kshetra Vidyut Vitaran Co.Ltd. v. Electricity Consumer Grievances Redressal Forum, reported in 2010(1) JLJ 211=2009(3) MPLJ 351, in case of recovery of dues of earlier consumer from the occupant of premises in paragraphs 11, 12, 13, 14, 15 and 19 has held as under :
“11. The word “consumer”, in our considered opinion, is to be read in juxtaposition with the word “earlier agreement” so executed and the association of the demanding consumer should be shown with the erstwhile firm or company as a Partner, Director or Managing Director or as occupier and or owner of the premises.
12. We would be justified in reading the agreement by saying that if the presen
