Friends Distillery And Bottling Industry Pvt. Ltd. And 2 Ors vs State Of Assam And 6 Ors

Ajai Lamba, CJ

Friends Distillery and Bottling Industry Pvt. Ltd and 2 others have preferred this petition for issuance of a writ in the nature of certiorari for

quashing order dated 31.3.2017 issued under Section 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Securities

Interest Act, 2002 (for short, the Act of 2002).

The petitioners also seek quashing of order dated 18.8.2017.

We have heard learned counsel for the petitioners and have gone through the documents available on record. The sequence of events, in brief, is

required to be noticed. It appears that the petitioner No.1 is a Private Limited Company incorporated under the Companies Act, 1956. It appears that

petitioner company took some financial assistance from the respondent No.4, Langpi Dehangi Rural Bank. It further appears that the amount due

towards creditor/respondent No.4 bank was not repaid as per the schedule. In such circumstance, notice under Section 13(2) of the Act of 2002 was

issued vide the notice dated 5.7.2016 which is placed on record as Annexure-VII.

The petitioner company appears to have given a reply to the said notice dated 7.9.2016. Subsequently, the proceedings were challenged vide the

Application (SARFAESI) No.96/2016. Order dated 24.2.2017 passed by the Debt Recovery Tribunal (for short, the DRT), Guwahati is available on

record as Annexure-XV. Perusal of the order indicates that counsel for the Bank stated that entire action taken under the Act of 2002 and the rules

made thereunder from the stage of issuing Demand Notice under Section 13(2) of the Act of 2002, had been withdrawn.

Consequent to the said statement given on behalf of the creditor Bank, the application filed from the petitioners’ side was disposed of as

infructuous. Symbolic position taken by the Bank was restored to the applicant petitioner.

On going through the record, it further appears that a fresh notice dated 31.3.2017 was issued by the respondent Bank under Section 13(2) of the

Act of 2002 with the plea that the petitioners owed Rs.102,08,084/- along with interest and incidental expenses etc. Along with the notice schedules

were appended to detail the mortgaged properties and the amount owed by the petitioners. The demand notice is appended with the petition as

Annexure-XIX.

The demand notice dated 31.3.2017 has been challenged by virtue of this petition.

Annexure-XX is the reply to the notice given on behalf of the petitioner and is dated 5.5.2017.

Annexure-XXI is a letter dated 22.5.2017 issued on behalf of the Bank to the petitioner in context of representation dated 5.5.2017 (supra) received

by the Bank on 12.5.2017. The Bank took a stand that the statement made by the petitioners debtor was based on misrepresentation. The petitioners

had been wrongly denying the fact that they had not availed cash credit limit. Loan documents executed and available with the Bank indicate that the

documents had been signed and executed.

Be that as it may, Original Application No.77/2017 (Annexure-XXII) was filed by the Bank which is pending adjudication.

Perusal of order dated 18.8.2017 appended as Annexure-XXVI indicates that the Deputy Commissioner issued notice to the petitioners saying that

the petitioners had failed to pay the arrears amounting to Rs.1,02,08,084/- along with interest cost and other expenses till the date of realization even

though notice dated 31.3.2017 had been issued by the Bank. Vide the document Annexure-XXVI (supra), the Deputy Commissioner asked the

petitioners to show cause regarding failure to repay the Bank within 7 days of receipt of the letter failing which necessary steps would be taken for

taking over physical possession of the secured assets under Section 14 of the Act of 2002.

This show-cause notice has also been challenged by virtue of this petition.

Perusal of Annexure-XXVII dated 23.8.2017 indicates that the petitioners gave reply to the Deputy Commissioner. The stand taken by the

petitioners has been to the effect that the claim of the Bank is baseless. Fraud had been committed by an employee of the Bank. Bank’s money

had been misappropriated by the Bank employee. Recovery from the petitioners, consequently, is not justified. The Branch Manager of the Bank had

taken advantage of his post as Branch Manager and had committed fraud. Criminal proceedings had already been initiated in that regard.

Documents placed on record as Annexure-XXIX is an order dated 9.11.2017 passed by the Deputy Commissioner having jurisdiction to the effect that

Sub-Divisional Magistrate (S) is deputed to oversee the law and order during taking over possession of the secured assets by the creditor Bank as per

the provision of the Act of 2002.

On going through all the above referred documents, we find that the petitioners would have the right to file an appeal under Section 17 of the Act

of 2002. The case of the petitioners would not be covered by the explanation to Section 17 because the proceedings have travelled beyond the stage

of Section 13(2) of the Act of 2002. The Deputy Commissioner has already issued show-cause notice, subsequent to the notice issued by the Bank

under Section 13(2) of the Act of 2002, vide the show-cause notice dated 18.8.2017.

Further, order dated 9.11.2017 indicates that even Sub-Divisional Magistrate (S) has already been deputed to oversee the law and order situation at

the time when possession of the assets are taken by the creditor Bank.

We also find that order dated 9.11.2017 has not been challenged by virtue of this petition. All the proceedings before 9.11.2017, as detailed

hereinabove, would have culminated in passing of order dated 9.11.2017. In such circumstances, the petitioners have the remedy of approaching the

DRT.

Considering various aspects of the matter, we are of the considered view that seriously disputed questions of fact have been raised by the

petitioners. While the Bank alleges that the loan documents were duly executed and are available with the Bank and the petitioners have availed of

credit facilities from the Bank and the petitioners owe that money to the Bank; on the other hand, the petitioners plead that not a penny has been

received by the petitioners. The Branch Manager had committed a fraud on the Bank by virtue of withdrawing money in the name of the petitioners.

Surely, the petitioners can take this plea before the DRT.

We hereby dismiss this petition, however, with liberty to the petitioners to avail appropriate remedies as provided in law, if so advised.