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Akhil Bandhu Saha v/s The Branch Manager, State Bank of India & Others


Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

    W.P. No. 17585 (W) of 2010 (Appellate Side)

    Decided On, 17 April 2012

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE JOYMALYA BAGCHI

    For the Petitioner: Ashish Kumar Bhattacharyya, Amir S. Molla, Advocates. For the Respondents: A.K. Routh, Sudeep Pal Choudhuri, Sailaja Nanda Bhattacharya, Advocates.



Judgment Text

Joymalya Bagchi, J.

The writ petitioner claims to have been carrying on business in the name of East India Chemical Products and East India Trading Company respectively.

State Bank of India, Ektishaal Branch (hereinafter referred to as the bank) sanctioned credit facilities in the name of the petitioner’s concern, M/s. East India Trading Company to the tune of Rs. 5,000,00/- against STDR valued at RS. 50,090/- and/or Rs.17,000/- as collateral security and creation of equitable mortgage of property at Hyderpara in the district of Jalpaiguri.

Other credit facilities sanctioned by the bank in favour of M/s. East India Chemical Products are as follows :

(i) Cash credit to the tune of 3 lakhs;

(ii) Clean medium loan to the tune of 1 lakh 95 thousand and;

(iii) Medium term loan for RS. 95,000/- against STDR of Rs. 1,000,00/- as collateral security and by creating equitable mortgage in respect of 30 Cottahs of land at Dabgram in the district of Jalpaiguri.

The petitioner was also sanctioned a loan of Rs. 40,000/- for purchasing a motor cycle bearing No. WB-74B 9082.

It is claimed by the bank that the petitioner failed to repay the aforesaid credit facilities sanctioned in the name of East India Trading Company and the bank was constrained to declare the same as nonperforming assets. Thereupon the bank issued a notice upon the petitioner under Section 13 (2) of SARFAESI Act with regard to outstanding dues in the name of East India Trading Company and took over possession of the mortgaged property situated at Hyderpara on 13th December, 2003.

The petitioner filed a writ petition being W.P. No. 1384 (W) of 2004, inter alia, challenging the steps taken by the bank under the SARFAESI Act. The said writ petition was dismissed by this Hon’ble Court on 21st September, 2004 giving liberty to the petitioner to apply before the Debt Recovery Tribunal. In the self-same order the bank was directed to return the household articles of the petitioner lying with the bank.

Thereafter the petitioner took out a spate of contempt applications alleging that the aforesaid directions passed by this Hon’ble Court had not been complied with by the bank.

In the first of such contempt applications, being CPAN No. 947 of 2005, it was alleged that all the articles had not been delivered to the petitioner in terms of the aforesaid order dated 21.09.2004 passed by this Hon’ble Court. The said contempt application was disposed of by order dated 2nd September, 2005 whereby it was directed that the goods which were not part of the mortgaged assets, and were lying with the bank shall be released by the bank on 12th September, 2005 and the petitioner would go to the bank premises and take back the goods. A special officer was also appointed by this Court for such purpose.

Pursuant to such direction, it appears from the report of the Special Officer duly signed by the parties that on the aforesaid date i.e. 12th September, 2005, the non-mortgaged goods lying with the bank were returned to the petitioner.

Thereafter, the petitioner again took out another contempt application being CPAN No. 1800 of 2005 alleging violation of the orders dated 21st September, 2004 and 2nd September, 2005 by the bank authorities. The said application was disposed of by order dated 13th February, 2007 permitting the petitioner to withdraw the same with liberty to file fresh application.

Pursuant to such liberty, another contempt application being CPAN No. 763 of 2007 dated 10th May, 2007 was filed. In the said application this Hon’ble Court by order dated 19th December, 2007 directed the Inspector General of Police, North Bengal Range, to inquire into the matter and file a detailed report as regard to the complaints made by the petitioner. The Chief Manager, State Bank of India, Jalpaiguri was also directed to look into the matter and make an inquiry and file a report before this Hon’ble Court.

Pursuant to such direction the bank authorities filed the report wherein the bank authorities claimed that the goods have already been returned in terms of the order passed by this Hon’ble Court. Under such circumstances, by order dated 8th January, 2008 the contempt application was dismissed on the ground that no case has been made out as to any violation made by the alleged contemptnor in respect of the orders passed by this Hon’ble Court. However, this Hon’ble Court clarified that the said order will not stand in the way of the petitioner to take any further steps before the appropriate forum in accordance with law.

Finally, by a comprehensive order dated 10th March, 2010 this Hon’ble Court clarified that no contempt applications were pending in respect of order dated 21.09.2004 in W.P. No. 1384 (W) of 2004.

In the meantime, the bank issued a sale notice in respect of the secured asset in question. The said sale notice was challenged by the petitioner in W.P. No. 3624 (W) of 2007 before this Hon’ble Court. This Hon’ble Court by order dated 04.07.2008 was pleased to dismiss the said writ petition on the ground that the earlier writ petition had been dismissed with liberty to the petitioner to approach the tribunal. The said order was challenged before the Hon’ble Division Bench in M.A.T. No. 736 of 2008. By order dated 25.09.2008 the Hon’ble Division Bench dismissed the said appeal with direction that the appellant/petitioner is at liberty to seek remedy in accordance with law. Inspite of such liberty, the writ petitioner did not avail of the remedy under Section 17 of the SARFAESI Act before the Debt Recovery Tribunal.

On the contrary, the writ petitioner has again instituted the instant writ proceeding on the self-same facts, inter alia, praying for return of non-mortgaged goods lying with the bank, permission to operate his locker maintained with the bank, settlement of his accounts and other reliefs. An application being CAN No. 9732 of 2010 has also been filed praying for an interim direction on the bank to return the keys of the locker to the petitioner.

Learned lawyer appearing for the writ petitioner submitted that inspite of orders dated 21st September, 2004 passed by this Hon’ble Court in W.P. No. 1384 (W) of 2004, and order dated 2nd September, 2005 in CPAN No. 947 of 2005 the bank authorities have not returned the non-mortgaged goods lying with them to the writ petitioner and have wrongfully prevented the writ petitioner from operating his locker. It is also submitted that in the meantime the bank authorities have wrongfully sold the mortgaged property of the writ petitioner and have not accounted for the sale proceeds.

Learned Counsel appearing for the bank opposed the instant writ petition on the ground that the issues have already been decided in the earlier writ proceedings and the same are barred by principles of resjudicata. He further submitted that the non-mortgaged goods have been duly returned by the bank authorities in terms of the orders dated 21.09.2004 passed in W.P. No. 1384 (W) of 2004 and 2nd September, 2005 in CPAN No. 947 of 2005. He drew my attention to the order dated 8th January, 2008 passed by this Hon’ble Court in CPAN No. 947 of 2005 and submitted that all the non-mortgaged goods have been returned to the writ petitioner in terms of the orders passed by this Hon’ble Court.

The learned advocate further submitted that the mortgaged assets have been duly sold by the bank pursuant to the sale notice published on 31st July, 2008 and the excess amount has been duly credited to the account of the firm of the writ petitioner. This however is disputed by the petitioner.

Having heard the submissions of both the parties, it appears that the issues raised in the instant writ petition primarily relates to the alleged wrongful action of the respondent in exercise of power under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred to as SARFAESI Act). An equally efficacious statutory remedy is provided by way of an appeal to an aggrieved person under Section 17 of the said Act.

It is apposite to mention here that order dated 21st September, 2004 in W.P. No. 1384 (W) of 2004 and 04.07.2004 in W.P. No. 3624 (W) of 2007 (affirmed by this Division Bench in order dated 25.09.2008 in M.A.T. No. 736 of 2008) this Hon’ble Court had given liberty to the petitioner to seek relief before the Debt Recovery Tribunal. However, for reasons best known to him, the petitioner chose not to avail of such remedy and filed the instant writ petition for similar relief.

The Apex Court in the case reported in 2010 (8) SCC 110 (United Bank of India Vs. Satyawati Tandon and Others) has unequivocally held that the High Court shall be extremely slow in exercising its extraordinary powers under Article 226 of the Constitution of India in the face of the aforesaid statutory remedy. The ratio of the aforesaid decision applies with full force to the instant case and hence I am unwilling to exercise my discretionary powers under Article 226 of the Constitution of India.

Furthermore, with regard to the prayer for return of non-mortgaged goods the issue has been decided by this Hon’ble Court in its earlier order dated 8th January, 2008 in CPAN No. 947 of 2005 wherein this Hon’ble Court in no uncertain terms had observed that no case of violation of the Court’s earlier orders dated 21.09.2004 and 02.09.2005 had been made out.

The bank authorities claimed that all the non mortgaged goods have been duly returned to the petitioner. Such claim appears to be supported by the reports filed in the contempt proceedings as reflected in the various orders passed therein. The petitioner however in the instant writ petition challenges such factual matrix. I am the opinion that this Court cannot embark into an arena of evaluation of disputed facts in exercise of its powers under Article 226 of the Constitution of India and grant relief to the petitioner as prayed for.

With regard to the prayer of the writ petitioner relating to the locker maintained by him with the bank, the learned lawyer appearing for the bank denied the allegations that they were in possession in the key of the locker. He further submitted that the bank was ready and willing to permit the petitioner to operate the locker in the event the dues on account of breaking open the locker and arrear rents are paid by the petitioner.

In the course of heari

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ng, I had passed an interim order that without prejudice to the rights and contentions of the parties, the petitioner would be at liberty to apply for duplicate key for operating his locker and the bank authorities would issue such duplicate key to him and permit him to operate the same in accordance with law upon furnishing adequate indemnity bond and on payment of necessary rental and maintenance charges. It appears that the petitioner did not approach the bank authorities to obtain a duplicate key for operating his locker in terms of the said order. After hearing the parties, the application being CAN No. 9723 of 2010, is also disposed of along with the instant writ petition with a direction upon the bank to permit the petitioner to operate his locker, in the event the petitioner chooses to do so upon payment of all lawful dues including rental and maintenance charges in accordance with law. With the aforesaid direction, the instant writ petition is disposed of. There shall be no order as to costs. Urgent certified photostat copy of this order be given to the parties, if applied for, subject to compliance with all necessary formalities.
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