IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 3703 of 2023 ================================================================

M/S AMIR TRADERS Versus AUTHORIZED OFFICER BANK OF BARODA ================================================================

Appearance:

MR BS PATEL, SENIOR ADVOCATE WITH MR ASIFKHAN I PATHAN(2459)

for the Petitioner(s) No. 1,2,3,4 for the Respondent(s) No. 1,3 MR. JAIMIN R DAVE(7022) for the Respondent(s) No. 2 MR BHASKAR SHARMA, for the Respondent No.1 ================================================================

CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 01/03/2023

ORAL ORDER

Draft amendment tendered by learned Senior Advocate Mr.B.S.Patel is allowed in terms of draft. The same shall be carried out forthwith. The orders, along with the list tendered by learned Advocate Mr. Jaimin R Dave, who appears on caveat on behalf of respondent no.2, are also ordered to be taken on record.

1. Rule. Learned advocates appearing for the respective respondents waive service of notice of rule. The writ petition is taken up for hearing today, since both the learned Advocates have argued at length.

2. In the present writ petition, which has been filed under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for quashing and setting aside the order dated 22.02.2023 passed in IA No.704 of 2022 by the respondent no.3-Debt Recovery Tribunal, Ahmedabad (DRT). Further, a prayer is made seeking a direction from the respondent no.1-Bank to handover the secured asset i.e. the resident bungalow of the petitioners.

3. By way of the amended prayer, a further direction is sought against the respondent no.2 not to transfer land, mortgage or transfer possession of the resident bungalow to any third party.

4. BRIEF FACTS

4.1. The respondent no.1-Bank of Baroda filed O.A. Application No.777 of 2018 on 23.05.2018 before the respondent No.3-Debt Recovery Tribunal-II, Ahmedabad (DRT) under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 (for short “the RBD Act”) for recovery of Rs.3,20,27,98.69 in respect of Cash Credit facility of Rs.3 Crore together with interest of 12.15% and penal interest of 2% till date of realization with cost and other relief. The same was disposed of by the judgment dated 30.11.2022 by directing the petitioners to clear the dues within a period of 30 days.

4.2. Thereafter, for the compliance of the judgment and order passed at Annexure-B to the petition, for recovery, the order has been sent to the Recovery Officer, DRT-II, Ahmedabad and R.C. No.265 of 2022 has been given. The petitioners appeared before the Recovery Officer, DRT- II, Ahmedabad. It is asserted that the petitioners have deposited entire dues with interest approximately of Rs.4.25 Crores.

4.3. The respondent no.1-Bank also issued a notice to the petitioner on 17.12.2018 under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SARFESI Act”) for recovery of Rs.3,57,71,151.24. The respondent-bank, thereafter filed and application under section 13(4) of the SARFESI Act for getting the order under section 14 of the SARFESI Act. Thereafter, the petitioners challenged such action of the respondent No.1 by filing Securitization Application No.525 of 2019 before respondent No.3-DRT-II, Ahmedabad. During the pendency of SA No.525/2019, the petitioners have challenged the E-Auction published in Gujarat Samachar on 14.01.2020. The E-auction was fixed on 25.02.2020. It is the case of the petitioners that they have deposited Rs.1.25 Crores in the respondent no.1-Bank Loan Account, therefore, respondent No.3, DRT-II passed order in SA No.525/2019 restraining the respondent-Bank from proceeding further under the SARFESI Act.

4.4. The petitioners preferred I.A. No.330 of 2020 for production of valuation report of 2019-20 of the mortgaged property as well as relevant document of loan account statement. The said 1.A. No.33