State Bank Of India vs District Magistrate, Tamluk, Purba Medinipur & Ors

Biswanath Somadder, J

Let the certified copy of the impugned judgment and order handed-up be kept with the record.

In spite of service of notice, the respondent nos. 5 and 6 remain unrepresented even at the time of second call.

The instant appeal arises out of a judgment and order dated 22nd February, 2019, passed by a learned Single Judge in WP 22938(W) of 2018 (State Bank of India vs. District Magistrate, Purba Medinipur & Ors.), whereby the writ petition of the State Bank of India was dismissed for such reasons as stated therein.

The instant appeal has been preferred by the writ petitioner/State Bank of India.

For convenience, the impugned judgment and order dated 22nd February, 2019 is set out hereinbelow in its entirety:-

"The petitioner assails an order of Debt Recovery Tribunal passed under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, the SARFAESI Act).

State an [sic; read, and] the private respondents are represented. Learned Advocate appearing on behalf of the petitioner relies upon a judgment and order dated August 18, 2017 passed by the High Court of Punjab and Haryana at Chandigarh in CWP No. 16366 of 2016 (Asset Reconstruction Company (India) Ltd. Vs. State of Haryana & Ors.) and submits that, a writ petition is maintainable against an order passed by the Debt Recovery Tribunal.

The Asset Reconstruction Company (India) Ltd. (supra) considered the issue as to whether the District Magistrate exercising jurisdiction under Section 14 of the Act of 2002 can be approached repeatedly for police assistance or not. It answers such issue in the affirmative. Such decision cannot be read to be an authority for the proposition that, a writ petition against an order passed by the Debt Recovery Tribunal is maintainable.

In the facts of the present case, I find no error in the exercise of jurisdiction by the Debt Recovery Tribunal warranting interference by the Writ Court under Article 226 of the Constitution of India.

W.P.22938 (W) of 2018 is dismissed without any order as to costs.

This order will not prevent the petitioner from availing of his remedies before the appropriate forum, in accordance with law."

It is the specific contention of the learned advocate representing the appellant that the issue before the learned Single Judge was not in respect of the order passed by the Debt Recovery Tribunal but was in respect of inaction on the part of the concerned authority, namely, the District Magistrate, Purba Medinipur, to take action on the basis of a letter dated 7th November, 2018, being annexure P-18 to the application for stay.

A bare perusal of the said letter dated 7th November, 2018, reveals that the appellant/writ petitioner requested the District Magistrate for repossession of the already seized mortgaged property under the SARFAESI Act, 2002, in connection with NPA Loan Account, "Kundu Cashew Unit (Proprietor- Shri Sukumal Kundu)". The prayers in the writ petition filed by the appellant/writ petitioner does not reveal that the subject matter of challenge before the writ Court was an order passed by the Debt Recovery Tribunal.

In such circumstances, we are of the view that the impugned judgment and order cannot be sustained in law and is liable to be set aside and is accordingly set aside.

We dispose of the appeal and the connected application for stay with a direction upon the District Magistrate, Purba Medinipur, to consider the letter dated 7th November, 2018 and take a decision in the matter in accordance with law preferably, within a period of six weeks but not later than eight weeks, from the date of communication of a photostat certified copy of this order.

Urgent photostat certified copy of this order, if applied for, be given to the parties.