P.T.O.

HIGH COURT OF ORISSA : CUTTACK.

W.P.(C) No. 21465 of 2022

(in the matter of an application under

Articles 226 & 227 of the Constitution of India, 1950)

***

KSHITISH KUMAR MOHANTA

…

Petitioner

Dr. Sujata Dash,

Advocate for the petitioner

-versus-

THE BRANCH MANAGER, UNION

BANK OF INDIA & OTHERS

…

Opposite Parties

Mr. Amit Kumar Nath,

Advocate for opposite party No.1

Date of Hearing and Order : 26.08.2022

CORAM:

MR. JUSTICE JASWANT SINGH

AND

MR. JUSTICE MURAHARI SRI RAMAN

ORDER

1.

This matter is taken up by virtual/physical mode.

2.

The Petitioner, who stood as guarantor for a loan of

Rs.30,00,000/- (rupees thirty lakhs) availed by his friend, late

Ganeswar Mohanta, from Union Bank of India, Karanjia Branch

in the district of Mayurbhanj in connection with business in the

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W.P.(C) No. 21465 of 2022

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name and style “M/s. Ganesh Traders”, has filed this writ petition

craving for following reliefs:

“*** issue a writ of mandamus/certiorari or any other Writ by

quashing the e-auction notice dated 29/07/2022 for sale of the

property of the petitioner as per Annexure-4 (to be read as

Annexure-1) and opposite party bank may kindly be directed to

recover the amount from the legal heirs of deceased Ganeswar

Mohanta namely the principal borrower ***.”

3.

Dr. Sujata Dash, Advocate for the petitioner submitted that the

friend of the Petitioner who was the loanee (died on 10.09.2020)

left behind legal heirs with huge property which is sufficient to

liquidate the loan liability. It is complained that during the

pendency of Original Application bearing No.376 of 2021 filed by

the opposite party-bank in the Debts Recovery Tribunal at Cuttack

under Section 19 of the Recovery of Debts and Bankruptcy Act,

1993, particularly so when the petitioner has already filed his

written statement on 25.05.2022 before the said Tribunal, action

under the Securitisation and Reconstruction of Financial Assets

and Enforcement of Security Interest Act, 2002 (for brevity

hereafter referred to as “SARFAESI Act”), for e-auction sale

fixing date on 30.08.2022 has unjustly been taken by the opposite

party No.3-Union Bank of India, Regional Office in the district of

Balasore vide Notice dated 29.07.2022 placed at Annexure-1. It is

also submitted by the learned counsel for the petitioner that

though the opposite party-bank is well aware of the fact that the

original loanee-late Ganeswar Mohanta has left sufficient landed

property to meet the loan amount, yet the property stands as

collateral security belonging to the petitioner-guarantor is

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W.P.(C) No. 21465 of 2022

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proceeded with for e-auction without serving any notice

thereunder. It is next contended by the counsel for the petitioner

that as none of the mandatory process given out under Rules 5, 8

and 9 of the Security Interest (Enforcement) Rules, 2002, is

followed, the petitioner has filed a petition for grant of stay of e-

auction sale which could not be taken up for consideration due to

non-availability of Presiding Officer of the Debts Recovery

Tribunal at Cuttack and, therefore, approaching this Court by way

of writ petition under the provisions of Article 226/227 of the

Constitution of India, the petitioner-guarantor seeks reliefs as

already mentioned in the foregoing paragraph.

4.

Bearing in mind what has been stated in Ram Kishun Vrs. State of

Uttar Pradesh, (2012) 11 SCC 511 to the effect that public money

should be recovered and recovery should be made expeditiously,

the contentions of the petitioner are untenable in the eye of law

inasmuch as the liability of the surety as per Section 128 of the

Contract Act, 1872, is coextensive with that of the principal debtor

and once the debtor failed to clear the debts then the surety will

become liable and the liability will be immediate. The creditor

does not need to exhaust his remedies against