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M/s. Jai Gurumata Infrastructures (Pvt.) Ltd. v/s The State of Assam & Others

    WP(C) No. 970 of 2020

    Decided On, 19 February 2020

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE SUMAN SHYAM & THE HONOURABLE MR. JUSTICE HITESH KUMAR SARMA

    For the Appellant: L. Talukdar, Advocate. For the Respondents: GA, Assam.



Judgment Text

Suman Shvam, J.

1. Heard Mr. L. Talukdar, learned counsel for the writ petitioner. Also heard Mr. D. Banerjee, learned counsel for the respondent No. 3. None has appeared for the respondent Nos. 1 and 2, despite the name of the Govt. Advocate, Assam having been shown in the cause list. We note herein with anguish that the learned Govt. Advocate was absent even on the previous date when the matter was called up before this Court.

2. By filing this writ petition, the petitioner has assailed the order dated 27-01-2020 passed by the learned District Magistrate, Dibrugarh, i.e. the respondent No. 2 whereby, the Circle Officer, Dibrugarh East Revenue Circle has been authorized to taken over physical possession of the secured assets of the petitioner due to its failure to repay the loan availed from the respondent No. 3 Bank.

3. By referring to Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 (for short the Act of 2002), Mr. Talukdar submits that the impugned order having been issued beyond the period of 60 (sixty) days from the date of receipt of application from the Bank, the same was barred by time and therefore, not enforceable in the eye of law. Mr. Talukdar has also submits that, no affidavit, as required under the proviso to Section 14 of the Act of, 2002 has been filed by the Bank before the respondent No. 2 and therefore, the impugned order is bad on that count as well.

4. By referring to the documents available on record, the learned counsel for the petitioner has argued that the Bank had issued possession notice dated 04-03-2014 under Section 13(2) of the SARFAESI Act, 2002 and thereafter on 20-05-2014, symbolic possession of the secured assets of the petitioner was taken over. Since then, although the writ petitioner has been regularly repaying the loan, yet, neither any updated statement of account has been furnished to the petitioner nor had the respondent No. 3 taken any further action in the matter in terms of the notice dated 20-05-2014. However, after a lapse of more than five years, the impugned order dated 27-01-2020 has been passed that too, in violation of the procedural safe guards. Urging that his client is not averse to repaying the loan but is aggrieved by the procedure that has been adopted by the Bank for recovery of the loan, Mr. Talukdar, submits that failure on the part of the Bank to furnish updated account statement and the violation of the statutory provisions while issuing the impugned order dated 27-01-2020 has resulted into serious prejudice being caused to the interest of his client.

5. Taking note of the grievance expressed in the writ petition, by the order dated 14-02-2020, this Court had directed the respondent's counsel to obtain instruction. Today when the matter is taken up, Mr. Banerjee, learned counsel for the respondent No. 3 submits that the delay in processing the matter was primarily on account of pendency of a proceeding initiated by the petitioner before the Debt Recovery Tribunal (DRT), Guwahati under Section 17 of the Act of 2002 which was subsequently withdrawn.

6. Mr. Banerjee, also submits that the Bank is interested in recovery of the amount due from the petitioner and not in the property belonging to it and therefore, if the petitioner's grievance is limited to non-issuance of updated account statement, his client would be open to issuing a fresh statement of account to the petitioner so as to enable him to repay the loan. Mr. Banerjee has, however, failed to met the allegation made by petitioner's counsel that the impugned order dated 27-01-2020 has been passed beyond the statutory period of 60 (sixty) days, as prescribed in the third proviso to Section 14 of the Act of 2002.

7. From a perusal of the materials available on record, we find that the petitioner company had availed loan for an amount of Rs. 93.75 Lakhs from the respondent No. 3 Bank in the year 2009 but the loan account had become NPA on 30-12-2013. On 04-03-2014, the respondent No. 3 had issued notice informing the petitioner that the loan account had become NPA and the outstanding liability was for an amount of Rs. 1,15,68,928.24 as on 12-02-2014. Thereafter, vide notice dated 20-05-2014, the Bank had apparently taken over symbolic possession of the secured assets and the mortgaged immovable property of one of the guarantors. It appears that on 18-08-2014, the respondent No. 3 had made an application before the respondent No. 2, based on which, order dated 15-12-2016 had been passed under Section 14 of the Act of 2002 for taking over physical possession of the secured assets of the petitioner. It further appears that due to an interim order passed by the learned DRT, Guwahati, the order dated 15-12-2016 could not be given effect to by the Bank. After withdrawal of the proceeding pending before the DRT, the impugned order dated 27-01-2020 has been passed by the respondent No. 2 in exercise of powers conferred under Section 14 of the Act of 2002.

8. From a perusal of the order dated 27-01-2020, we find that the impugned order was issued on the basis of a letter dated 23-09-2019 submitted by the Bank. The third proviso to Section 14 of the Act of 2002 prescribes the time limit of 60 (sixty) days with effect from the date of receipt of an application from the Bank, for the District Magistrate to pass an order, that too after recording reasons in writing as to why such an order could not have been passed within 30 days. However, we find that Section 14 does not contain any provision for enlarging the time frame and permitting the District Magistrate to pass an order beyond the prescribed period of 60 days from the date of receipt of the application from the Bank.

9. Moreover, such application by the secured creditor is also required to be accompanied by an affidavit in the prescribed format, furnishing certain particulars. Although, by the order dated 14-02-2020, this Court had called for specific instruction, Mr. Banerjee could not apprise this Court as to whether, such an affidavit, as prescribed by the proviso to Section 14 of the Act of 2002, was at all filed by the Bank.

10. Be that as it may, it is evident on the face of the record that the impugned order dated 27-01-2020 was issued beyond the prescribed period of 60 days from the date of receipt of the application from the Bank. As such, there cannot be any dispute about the fact that the order dated 27-01-2020 was issued in contravention of the provision of Section 14 of the Act of 2002. If that be so, the impugned order, in our considered opinion, cannot be given effect under the law.

11. Coming to the stand of Mr. Talukdar that his client is not averse to repaying the loan and since the issuance of the notice dated 04-03-2014, the petitioner has been making periodic repayment of the amount to the Bank, we find that the learned counsel for the respondent No. 3 has also not denied the said assertion of the petitioner's counsel.

The dispute, if any, is with regards to the quantum of repayment and the period covering the same. Since considerable time has elapsed since the demand notice dated 04-03-2014 was issued and in view of the fact that the petitioner had admittedly made periodic repayment during the interregnum, it would be necessary to ascertain as to the actual amount of current outstanding dues of the petitioner before any further action can be taken in the matter. Such ascertainment would be possible only after an authentic statement of account, with the updated figures, is furnished by the respondent No. 3 to the petitioner. We, therefore, find force in the submission of Mr. Talukdar that in the absence of any updated account statement furnished by the Bank, the writ petitioner is not in a position to suitably respond to the demand of the Bank.

12. Taking note of the submissions of learned counsel for both the parties and as agreed to by them, we dispose of this writ petition by setting aside the impugned order dated 27-01-2020, with a further direction to the respondent No. 3 Bank to furnish, within 02 weeks fr

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om today, an authentic and updated account statement of the loan account to the authorised representative of the petitioner company. 13. Upon receipt of same, the petitioner may suitably respond to the demand within a period of 02 weeks thereafter. It would be open for both the parties to sit across the table and explore the possibilities of re-phasing the repayment schedule, as per mutually agreed terms. If a compromise settlement, on such count, does not become possible within the period of 04 weeks from today, then in that event, it would be open for the Bank to initiate further action in the matter for recovery of the amount due from the petitioner, by following the due process of law. Above order is, however, subject to the condition that the petitioner continues to make periodic deposits of the instalment as per the existing practice. Writ petition stands disposed of.
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