IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4617 of 2011 M/S Devsons Pharma represented by Raman Kumar Sinha S/o Late Paras Nath Sinha R/O Mohalla Punaichak, P.S. Shastri Nagar, District-Patna. …..Petitioner. Versus 1. The State Bank of India through its Chief Manager, Stressed Assets Resolution Centre, 2nd Floor, Patna Main Branch Building, Patna. 2. The Assistant General Manager, SARC. S.B.I. 2nd Floor, Main Branch Building, Gandhi Maidan, Patna. 3. The Branch Manager, State Bank of India, Bailey Road, Patna. ….Respodnents. ----------- For the petitioner : Mr. Ram Shankar Das, Advocate. For the respondents : Mr. Sheo Narayan Singh, Advocate. ------------- 06/ 17.11.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner for the following reliefs: i. To quash the notice dated 12.07.2010 as contained in no.SARC/Sarfaesi/ NKK/1254 issued by respondent no.1 SBI, (SARC) Main Branch Building, Patna whereby the Bank proceeded u/s 13(2) of the SARFAESI ACT against the petitioner to discharge the entire liabilities with future interest failing which the respondent will proceed further u/s 13(4) of the Act as contained in Annexure-8. ii. To quash the notice under Section 13(4) issued under SARFAESI Act 2002 dated 17.02.2011 vide no.SARB/PKD/2753 issued by respondent no.1 SBI, SARC Patna Main Branch Building, Patna whereby the Bank has proceeded under possession notice of the property in exercise of power u/s 13(4) of the SARFAESI Act as contained in Annexure-11. iii. To direct the respondent-Bank to settle/finalise the proposal under one time settlement scheme (O.T.S.) for which as per Annexures 5 and 6 down payment of at least 25% loan amount has already been paid and close the loan account of the petitioner ad further to be exempted from the payment of interest since the - 2 - unit became defunct. 3. Learned counsel for the petitioner submits that earlier mortgage suit was filed by the respondents for recovery of the amount against the petitioner which was decreed ex parte in the year 1995, whereafter the respondents had filed the execution case. He further stated that in the year 2001 the petitioner filed an application for settlement of dues under OTS Scheme which was allowed and in response thereto he deposited 25% (Rs.2 lacs and odd) out of total amount due of Rs.8 lacs and odd. He also avers that all of a sudden in the year 2007 a proceeding under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act’ for the sake of brevity) was initiated and notice under Section 13(2) of the Act was issued on 12.07.2010, in response to which the petitioner sent a letter to the Assistant General Manager (SARC) State Bank of India Main Branch, Patna on 24.07.2010 regarding settlement of his dues under OTS Scheme. The said letter was rejected by the concerned authority on 11.08.2010 whereafter notice under Section 13(4) of the Act was issued by the authorities on 17.02.2011. Learned counsel for the petitioner also argues that during the pendency of this writ petition the respondents issued sale notice under Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002. 4. In the said circumstances, learned counsel for the petitioner avers that the entire proceeding is illegal, arbitrary and perverse and is fit to be quashed. On the other hand, learned counsel - 3 - for the respondents vehemently opposes the contentions of learned counsel for the petitioner on the basis of counter affidavit and reply to the interlocutory application of the applicant. 5. However, from the facts and circumstances of this case it is quite apparent that mortgage suit filed by the Bank was decreed against the petitioner, although ex parte, but even after coming to know of the decision of the said suit, no step was taken by the petitioner against the said decree and hence the execution case was filed by the Bank but the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 having been promulgated in the year 2002, there was no occasion for continuance of the said execution case, hence no step was rightly taken in the said execution case and according to the report of the court below the record of the said execution case was also not available. 6. It further transpires that petitioner did not make any payment as per the decree of the mortgage suit and applied for one time settlement in the year 2001, but even after the said petition was allowed on 05.02.2011 (Annexure-6) and he was directed to pay the amount in instalments fixed, the petitioner did not deposit any amount in furtherance to the initial deposit made by him. In the said circumstances, the authorities concerned were quite justified in initiating a proceeding under the Act against the petitioner in the year 2010. 7. It further transpires that the petitioner had full knowledge and information about the notice dated 12.07.2010 under - 4 - Section 13(2) of the Act, but did not file any objection under Section 13(3-A) thereof and filed a frivolous petition dated 24.07.2010 for revival of the OTS Scheme of 2001 which was rightly rejected by the authority concerned on 11.08.2010, but even thereafter no objection under Section 13(3-A) of the Act was filed by the petitioner in the SARFAESI proceeding and consequently notice under Section 13(4) of the Act was issued on 17.02.2011, but against that notice also the petitioner did not file any appeal before the Debt Recovery Tribunal as per the provisions of Section 17 of the Act. In the said circumstances, the issuance of sale notice by the respondents on 20.10.2011 cannot be held to be illegal or perverse. 8. Considering the aforesaid matter in its entirety and the materials on record, this Court does not find any reason to interfere into the matter and accordingly this writ petition is dismissed with a liberty to the petitioner to file an appeal before the Debt Recovery Tribunal under Section 17 of the Act against notice under Section 13(4) of the Act. If such an appeal is filed within fifteen days along with an interlocutory application for condoning the delay and a copy of this order, the said authority shall consider the delay caused due to the pendency of this writ petition and shall decide the appeal on its own merit in accordance with law. If the petitioner wants any interim relief he will be at liberty to file an interlocutory application before the appellate authority who shall decide the matter expeditiously. Sunil (S. N. Hussain, J.