M/S Amrit Dwellers Pvt. Limited & Another vs Punjab National Bank Dehradun & Another

Sharad Kumar Sharma, J

This writ petition has got a chequered history. As far as the present writ petition is concerned, which is under consideration before this Court today the challenge as given by the petitioner is to the letter of 28.09.2017, as issued by the respondent-Bank, by virtue of which the bank in pursuance to the decision which was rendered by this Court on 18.09.2017, it had directed that a decision is to be taken on the representation of the petitioner in the Writ Petition No. 1882 of 2017 'M/s Amrit Dwellers Pvt. Ltd. & Another vs. Punjab National Bank'. This Court had passed the following directions:

"Petitioners had admittedly taken a loan from Punjab National Bank, Branch Office, Race Course, Dehradun which they could not repay and the account of the petitioners was declared as Non-Performing Assets (in short "NPA"). Subsequently, proceedings were initiated against the petitioners under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Act (from hereinafter referred to as "the Act").

The contention of the petitioners before this Court is that by now they have already paid the loan amount but the papers submitted by them, which was with regard to mortgage of the property, have not been returned to the petitioners.

In case this is so, the writ petition stands disposed with the direction to the respondent-bank to look into this aspect and pass a speaking order in this regard in accordance with law, as expeditiously as possible."

In compliance to the directions as given by this Court referred above, the respondent had passed an order and as a consequence thereto a bank guarantee limit of Rs.5,00,000,00/- and calling three bank guarantees as issued by the Bank totalling to Rs.93 lakhs were directed to be deposited by the petitioner, so as to enable the respondent Bank to return the title deed for which principally the second relief has been sought.

The issue which was being sought to be argued by the learned counsel for the petitioner is from the view point that after the expiry of the term of the bank guarantee as extended by them the same could not have been encashed by the bank and the said subject matter cannot have been the subject matter to be considered by the Tribunal, while according to the counsel for the Bank it is submitted that they have already initiated the proceedings under Section 19 of the SARFAESI Act on 06.02.2019, whereby, by invoking the provisions of the Act they have claimed a recovery of Rs.1,21,58,025.79/- from the petitioner, which is pending consideration before the Debt Recovery Tribunal.

Briefly put the facts as involved in the present case was that initially when the petitioner had filed this writ petition questioning the impugned order dated 28.09.2017 the Coordinate Bench of this Court had granted an interim order in favour of the petitioner on 19.05.2016 in Writ Petition No. 1441 of 2016 'Amrit Dwellers Pvt. Ltd. Vs. State of Uttarakhand', wherein the petitioner has impugned the letter No. 106/Zamanat dated 05.05.2016 and the interim order was passed to the following effect that no fresh contract would be awarded pertaining to the work in question in favour of the third party. The order dated 19.05.2016 is quoted hereinbelow:

"Learned counsel for the petitioner vehemently argued that before passing the impugned letter no. 106 / Zamanat dated 05.05.2016, Annexure no. 04 to the writ petition, neither any show cause notice was ever issued to the petitioner calling response of the petitioner as to why contract be not terminated on such and such grounds nor any opportunity of being heard was granted to the petitioner, therefore, order impugned is in violation of principle of natural justice. Further contends that site was not provided to the petitioner despite repeated requests. Learned Standing Counsel appearing for the respondent nos. 1 to 3, seeks and is granted one week's time to obtain necessary instructions and to file counter affidavit on or before the next date fixed.

List immediately after one week.

Meanwhile, no fresh contract shall be awarded pertaining to the work in question in favour of the third party and bank guarantee furnished by the petitioners shall not be encashed.

Let copy of the order be supplied to learned counsel for the petitioner today itself on payment of usual charges.

Stay application no. 4977 of 2016 stands disposed of."

The compilation reveals that there was yet another simultaneous Writ Petition No. 1357 of 2016 'Amrit Dwellers Pvt. Ltd. Vs. State of Uttarakhand', which was preferred by the petitioner against the impugned letter No. 108/Zamanat dated 05.05.2016 whereby the respondents had called upon the petitioner to show cause as to why the contract executed in their favour be not terminated for the reason given in the impugned letter 05.05.2016. However, in this writ petition too there was an interim order passed by the Coordinate Bench of this Court to the effect that no fresh contract would be awarded pertaining to the work in question in favour of any third party and the bank guarantee furnished by the petitioner would not be encashed. The interim order is quote hereunder:

"Learned counsel for the petitioner vehemently argued that before passing the impugned letter no.108 / Zamanat dated 05.05.2016, Annexure no. 04 to the writ petition, neither any show cause notice was ever issued to the petitioner calling response of the petitioner as to why contract be not terminated on such and such grounds nor any opportunity of being heard was granted to the petitioner, therefore, order impugned is in violation of principle of natural justice. Further contends that site was not provided to the petitioner despite repeated requests. Learned Standing Counsel appearing for the respondent nos. 1 to 3, seeks and is granted one week's time to obtain necessary instructions and to file counter affidavit on or before the next date fixed.

List immediately after one week.

Meanwhile, no fresh contract shall be awarded pertaining to the work in question in favour of the third party and bank guarantee furnished by the petitioners shall not be encashed.

Stay application no. 4636 of 2016 stands disposed of"

The contention of the learned counsel for the petitioner is that the three bank guarantees as furnished by the petitioner had an expiry date of 17.09.2016, 06.10.2016 and 06.10.2016 respectively. But the fact remains that the interim order which was granted by this Court was vacated on 31.05.2017. Consequent thereto the vacation of the interim order the bank had taken the impugned action of invocation of bank guarantee as it was intended to by virtue of the impugned notice dated 28.09.2017. This Court when it had vacated the stay order on 31.05.2017, and thereafter the Bank has placed on record an affidavit on 13.03.2019, wherein it had been pleaded by the Bank, that for the purposes of the recovery of the amount in question, they contended that they have already initiated the proceedings under Section 19 of the Debt Recovery Tribunal Act, 1993, and the same is pending consideration before the competent DRT. Hence, he submits that in the light of the judgment rendered by the Hon'ble Apex Court in the case of 'United Bank of India vs. Satyawati Tondon & Others' as reported in 2010 (8) SCC 110 he had submitted that as per the ratio as propounded therein on the initiation of the proceedings under the Debt Recovery Tribunal Act, the writ courts should refrain themselves from interfering in the recovery proceedings, either initiated under Section 19 of the Act or under any provision whatsoever of the Act and that its being consistently held so by the Courts in various other authorities which has been dealt with in the said judgment, and in particular, a reference has been made by the learned counsel for the respondent to the ratio as laid by Hon'ble Apex Court in its paragraph 54 & 55 of the said judgment which is quoted hereunder:

"26. In Modern Industries v. Steel Authority of India Limited (2010) 5 SCC 44, the Court held that where the remedy was available under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993, the High Court was not justified in entertaining a petition under Article 226 of the Constitution.

It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection."

As a matter of fact the Hon'ble Apex Court has held that the High Court should refrain themselves from interference under writ jurisdiction and in case if at all it is required to be interfered, the High Court should exercise its extreme caution in entertaining any matters which fall within the domain of considerations under the Debt Recovery Tribunal Act.

This fact has been controverted by the learned counsel for the petitioner, on the ground that the issue pertaining to the invocation of the bank guarantee in the light of the order dated 20.04.2017 as passed by the Debt Recovery Tribunal in the earlier set of proceedings of OA No. 03 of 2017 'Punjab National Bank vs. Amrit Dwellers Pvt. Ltd. & Another', as well as in the light of the letter of the bank itself dated 07.07.2017, the impugned action would fall to be an absolute fraudulent act on part of the bank and which could only be gone into by the High Court under its writ jurisdiction under Article 226 of the Constitution of India. On considering the powers which are to be exercised by the Debt Recovery Tribunal under Section 19 of the Act, this Court is of the view that, all the issues pertaining to the wrongful/fraudulent invocation of the bank guarantee as alleged after the expiry of its term, as argued by the learned counsel for the petitioner and with regards to the impact of the order dated 07.07.2017, written by the bank itself are the issues which will fall to be well under domain of consideration of the Debt Recovery Tribunal. Section 19 of the Act is quoted hereunder:

" 19. Application to the Tribunal

(1) Where a bank or a financial institution has to recover any debt from any person, it may make an application to the Tribunal within the local limits of whose jurisdiction--

[(a) the branch or any other office of the bank or financial institution is maintaining an account in which debt claimed is outstanding, for the time being; or]

[(aa)] the defendant, or each of the defendants where there are more than one, at the lime of making the application, actually and voluntarily resides or carries on business or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business or personally works for gain; or

(c) the cause of action, wholly or in part, arise.

[Provided that the bank or financial institution may, with the permission of the Debts Recovery Tribunal, on an application made by it, withdraw the application, whether made before or after the Enforcement of Security Interest and Recovery of Debts Laws( Amendment) Act, 2004 for the purpose of taking action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, if no such action had been taken earlier under the Act:

Provided further that any application made under the first proviso for seeking permission from the Debts Recovery Tribunal to withdraw the application made under sub-section

(1) shall be dealt with by it as expeditiously as possible and disposed of within thirty days from the date of such application:

Provided also that in case the Debts Recovery Tribunal refuses to grant permission for withdrawal of the application filed under this sub-section, it shall pass such orders after recording the reasons therefore.".]

[(1A) Every bank being, multi-State co-operative bank referred to in sub-clause (vi) of clause (d) of section 2, may, at its option, opt to initiate proceedings under the Multi-State Co-operative Societies Act, 2002(39 of 2002) to recover debts, whether due before or after the date of commencement of the Enforcement of the Security Interest and Recovery of Debts Laws (Amendment) Act, 2012 from any person instead of making an application under this Chapter.

(1B) In case, a bank being, multi-State co-operative bank referred to in sub-clause (vi) of clause (d) of section 2 has filed an application under this Chapter and subsequently opts to withdraw the application for the purpose of initiating proceeding under the Multi-State Co-operative Societies Act, 2002(39 of 2002) to recover debts, it may do so with the permission of the Tribunal and every such application seeking permission from the Tribunal to withdraw the application made under sub-section (1A) shall be dealt with by it as expeditiously as possible and disposed of within thirty days from the date of such application:

Provided that in case the Tribunal refuses to grant permission for withdrawal of the application filed under this sub-section, it shall pass such orders after recording the reasons therefore.]

(2) Where a bank or a financial institution, which has to recover its debt from any person, has filed an application to the Tribunal under sub-section (I) and against the same person another bank or financial institution also has claim to recover its debt, then, the later bank or financial institution may join the applicant bank or financial institution at any stage of the proceedings, before the final order is passed, by making an application to that Tribunal.

[(3) Every application under sub-section (1) or sub-section (2) shall be in such form, and shall be accompanied with true copies of all documents relied on in support of the claim along with such fee, as may be prescribed.]

Provided that the fee may be prescribed having regard to the amount of debt to be recovered:

Provided further that nothing contained in this sub-section relating to fee shall apply to cases transferred to the Tribunal under sub-section (1) of section 31-

[Explanation.-For the purposes of this section, documents includes statement of account or any entry in banker's book duly certified under the Bankers' Books Evidence Act, 1891 (18 of 1891).]

[(3A) Every applicant in the application filed under sub-section (1) or sub-section (2) for recovery of debt, shall-

(a) state particulars of the debt secured by security interest over properties or assets belonging to any of the defendants and the estimated value of such securities;

(b) if the estimated value of securities is not sufficient to satisfy the debt claimed, state particulars of any other properties or assets owned by any of the defendants, if any; and

(c) if the estimated value of such other assets is not sufficient to recover the debt, seek an order directing the defendant to disclose to the Tribunal particulars of other properties or assets owned by the defendants.]

[(8[3B]) If any application filed before the Tribunal for recovery of any debt is settled prior to the commencement of the hearing before that Tribunal or at any stage of the proceedings before the final order is passed, the applicant may be granted refund of the fees paid by him at such rates as may be prescribed.]

(4) On receipt of application under sub-section (1) or sub-section (2), the Tribunal shall issue summons with following directions to the defendant-

(i) to show cause within thirty days of the service of summons as to why relief prayed for should not be granted;

(ii) direct the defendant to disclose particulars of properties or assets other than properties and assets specified by the applicant under clauses (a) and (b) of sub-section (3A); and

(iii) to restrain the defendant from dealing with or disposing of such assets and properties disclosed under clause (c) of sub-section (3A) pending the hearing and disposal of the application for attachment of properties.]

[(4A) Notwithstanding anything contained in section 65A of the Transfer of Property Act, 1882 (4 of 1882), the defendant, on service of summons, shall not transfer by way of sale, lease or otherwise except in the ordinary course of his business any of the assets over which security interest is created and other properties and assets specified or disclosed under sub-section (3A), without the prior approval of the Tribunal:

Provided that the Tribunal shall not grant such approval without giving notice to the applicant bank or financial institution to show cause as to why approval prayed for should not be granted:

Provided further that defendant shall be liable to account for the sale proceeds realised by sale of secured assets in the ordinary course of business and deposit such sale proceeds in the account maintained with the bank or financial institution holding security interest over such assets.]

[(5) (i) the defendant shall within a period of thirty days from the date of service of summons, present a written statement of his defence including claim for set-off under sub-section (6) or a counter-claim under sub-section (8), if any, and such written statement shall be accompanied with original documents or true copies thereof with the leave of the Tribunal, relied on by the defendant in his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, the Presiding Officer may, in exceptional cases and in special circumstances to be recorded in writing, extend the said period by such further period not exceeding fifteen days to file the written statement of his defence;

(ii) where the defendant makes a disclosure of any property or asset pursuant to orders passed by the Tribunal, the provisions of sub-section (4A) of this section shall apply to such property or asset;

(iii) in case of non-compliance of any order made under clause (ii) of sub-section (4), the Presiding Officer may, by an order, direct that the person or officer who is in default, be detained in civil prison for a term not exceeding three months unless in the meantime the Presiding Officer directs his release:

Provided that the Presiding Officer shall not pass an order under this clause without giving an opportunity of being heard to such person or officer.

Explanation.-For the purpose of this section, the expression 'officer who is in default' shall mean such officer as defined in clause (60) of section 2 of the Companies Act, 2013 (18 of 2013).]

[(5A) On receipt of the written statement of defendant or on expiry of time granted by the Tribunal to file the written statement, the Tribunal shall fix a date of hearing for admission or denial of documents produced by the parties to the proceedings and also for continuation or vacation of the interim order passed under sub-section (4).

(5B) Where a defendant makes an admission of the full or part of the amount of debt due to a bank or financial institution, the Tribunal shall order such defendant to pay the amount, to the extent of the admission within a period of thirty days from the date of such order failing which the Tribunal may issue a certificate in accordance with the provisions of sub-section (22) to the extent of the amount of debt due admitted by the defendant.]

(6) Where the defendant claims to set-off against the applicant's demand and ascertained sum of money legally recoverable by him from such applicant, the defendant may, at the firs! hearing of the application, but not afterwards unless permitted by the Tribunal, present a written statement containing the particulars of the debt sought to be set-off 6[the debt sought to be set-off along with original documents and other evidence relied on in support of claim of set-off in relation to any ascertained sum of money, against the applicant].

(7) The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Tribunal to pass a final order in respect both of the original claim and of the set-off.

(8) A defendant in an application may, in addition to his right of pleading a set-off under sub-section (6), set up, by way of counter-claim against the claim of the applicant, any right or claim in respect of a cause of action accruing to the defendant against the applicant either before or after the filing of the application but before the defendant has delivered his defence or before the lime limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not.

(9) A counter-claim under sub-section (8) shall have the same effect as a cross-suit so as to enable the Tribunal to pass a final order on the same application, both on the original claim and on the counter-claim.

(10) The applicant shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period 12[as may be prescribed].

[(10A) Every application under sub-section (3) or written statement of defendant under sub-section (5) or claim of set-off under sub-section (6) or a counter-claim under sub-section (8) by the defendant, or written statement by the applicant in reply to the counter-claim, under sub-section (10) or any other pleading whatsoever, shall be supported by an affidavit sworn in by the applicant or defendant verifying all the facts and pleadings, the statements pleading documents and other documentary evidence annexed to the application or written statement or reply to set-off or counter-claim, as the case may be:

Provided that if there is any evidence of witnesses to be led by any party, the affidavits of such witnesses shall be filed simultaneously by the party with the application or written statement or replies filed under sub-section (10A).

(10B) If any of the facts or pleadings in the application or written statement are not verified in the manner provided under sub-section (10A), a party to the proceedings shall not be allowed to rely on such facts or pleadings as evidence or any of the matters set out therein.";

[(11) Where a defendant sets up a counter-claim in the written statement and in reply to such claim the applicant contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent action, the Tribunal shall decide such issue along with the claim of the applicant for recovery of the debt.]

12[***]

(13) (A) Where, at any stage of the proceedings, 15[the Tribunal on an application made by the applicant along with particulars of property to be attached and estimated value thereof, or otherwise is satisfied], that the defendant, with intent to obstruct or delay or frustrate the execution of any order for the recovery of debt that may be passed against him,--

(i) is about to dispose of the whole or any part of his property; or

(ii) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Tribunal; or

(iii) is likely to cause any damage or mischief to the property or affect its value by misuse or creating third party interest,

the Tribunal may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Tribunal, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the certificate for the recovery of debt, or to appear and show cause why he should not furnish security.

(B) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Tribunal, the Tribunal may order the attachment of the whole or such portion of the properties claimed by the applicant as the properties secured in his favour or otherwise owned by the defendant as appears sufficient to satisfy any certificate for the recovery of debt.

14[***]

(15) The Tribunal may also in the order direct the conditional attachment of the whole or any portion of the property specified under 17[sub-section (13)].

(16) If an order of attachment is made without complying with the provisions of sub-section (13), such attachment shall be void.

(17) In the case of disobedience of an order made by the Tribunal under subsections (12), (13) and (18) or breach of any of the terms on which the order was made, the Tribunal may order me properties of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Tribunal directs his release.

(18) Where it appears to the Tribunal to be just and convenient, the Tribunal may, by order--

(a) appoint a receiver of any property, whether before or after grant of certificate for recovery of debt;

(b) remove any person from tiie possession or custody of the property;

(c) commit the same to the possession, custody pr management of the receiver;

(d) confer upon the receiver all such powers, as to bringing and defending suits in the courts of filing and defending application before the Tribunal and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of (hose powers as the Tribunal thinks fit; and

(e) appoint a Commissioner for, preparation of an inventory of the properties of the defendant or for the thereof.

[(19) Where a certificate of recovery is issued against a company as defined under the Companies Act, 2013 (18 of 2013) and such company is under liquidation, the Tribunal may by an order direct that the sale proceeds of secured assets of such company be distributed in the same manner as provided in section 326 of the Companies Act, 2013 or under any other law for the time being in force.]

[(20) The Tribunal may, after giving the applicant and the defendant, an opportunity of being heard, in respect of all claims, set-off or counter-claim, if any, and interest on such claims, within thirty days from the date of conclusion of the hearings, pass interim or final order as it deems fit which may include order for payment of interest from the date on which payment of the amount is found due up to the date of realisation or actual payment.]

[(20A) Where it is proved to the satisfaction of the Tribunal that the claim of the applicant has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or where the defendant has repaid or agreed to repay the claim of the applicant, the Tribunal shall pass orders recording such agreement, compromise or satisfaction of the claim.]

[(20AA) While passing the final order under sub-section (20), the Tribunal shall clearly specify the assets of the borrower over which security interest is created in favour of any bank or financial institution and direct the Recovery Officers to distribute the sale proceeds of such assets as provided in sub-section (20AB).

(20AB) Notwithstanding anything to the contrary contained in any law for the time being in force, the proceeds from sale of secured assets shall be distributed in the following orders of priority, namely:-

(i) the costs incurred for preservation and protection of secured assets, the costs of valuation, public notice for possession and auction and other expenses for sale of assets shall be paid in full;

(ii) debts owed to the bank or financial institution.

Explanation.-For the purposes of this sub section, it is hereby clarified that on or after the commencement of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), in cases where insolvency and bankruptcy proceedings are pending in respect of secured assets of the borrower, the distribution of proceeds from sale of secured assets shall be subject to the order of priority as provided in that Code.]

[(21) (i) The Tribunal shall send a copy of its final order and the recovery certificate, to the applicant and defendant.

(ii) The applicant and the defendant may obtain copy of any order passed by the Tribunal on payment on such fee as may be prescribed.]

[(22) The Presiding Officer shall issue a certificate of recovery along with the final order, under sub-section (20), for payment of debt with interest under his signature to the Recovery Officer for recovery of the amount of debt specified in the certificate.]

[(22A) Any recovery certificate issued by the Presiding Officer under sub-section (22) shall be deemed to be decree or order of the Court for the purposes of initiation of winding up proceedings against a company registered under the Companies Act, 2013 (18 of 2013) or Limited Liability Partnership registered under the Limited Liability Partnership Act, 2008 (9 of 2008) or insolvency proceedings against any individual or partnership firm under any law for the time being in force, as the case may be.]

(23) Where the Tribunal, which has issued a certificate of recovery, is satisfied that the property is situated within the local limits of the jurisdiction of two or more Tribunals, it may send the copies of the certificate of recovery for execution to such other Tribunal where the property is situated:

Provided that in a case where the Tribunal to which the certificate of recovery is sent for execution funds that it has no jurisdiction to comply with the certificate of recovery, it shall return the same to the Tribunal which has issued it.

(24) The application made to the Tribunal under sub-section (1) or sub-section (2) shall be dealt with by it as expeditiously as possible and 22[every effort shall be made by it to complete the proceedings in two hearings, and] to dispose of the application finally within one hundred and eighty days from the dale or receipt of the application.

(25) The Tribunal may make such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.]"

Hence, in view of the ratio as laid down by the Hon'ble Apex Court in the judgment of 'United Bank of India vs. Satyawati Tondon & Others' reported in SCC 2010 (8) 110 the appropriate recourse available to the petitioner, would be to put in appearance in the proceedings, which had already been drawn against it under Section 19 of the Act, after vacation of the interim order by the order dated 31.05.2017 and raise all the contentions, which have been sought to be pressed before the writ court. Accordingly, this Court declines to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India, with the liberty open to the petitioner to appear before the Debt Recovery Tribunal and raise all the contentions as being raised in the present writ petition.

Writ petition stands dismissed accordingly.

However, there would be no order as to cost.