IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2816 of 2009 M/S MURLIGANJ COLD STORAGE PVT.LTD. & ANR Versus THE STATE OF BIHAR & ORS ----------- 2 3/3/2009 Heard counsel for the petitioners and counsel for the Bank. In this writ application a notice dated 12.12.2008 under section 13(2) of the Securitization And Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SURFAESI Act), has been called in question by the petitioner- loanee on the ground that merely after one year of disbursement of loan when there was natural calamity in the district of Madhepura, the proposed penal action taken by the Bank is wholly without substance and as also in violation of the provisions made in section 13 of the Disaster Management Act. At the very out set, this Court had put a question to the counsel appearing on behalf of the petitioner as to whether there is any dispute with regard to liability of the petitioner of the loan amount. The counsel fairly stated that 2 there is no such dispute and in fact the petitioner does not dispute liability of sum of Rs. 2,02,92,508/- on 30.9.2008. This Court had further asked him, whether the petitioner was prepared to pay the amount and the instant answer of counsel for the petitioner is that the petitioner is ready to pay the amount of loan but the petitioner needed a period of three years for making such payment. Counsel for the petitioner, in fact, also placed reliance on section 13 (3-A) of the Act to submit that if after receipt of the notice under section 13(2) of the Act a representation was filed by the petitioner raising objection with regard to the notice and it was the duty on the part of the Bank to communicate the reasons for non acceptance of the representation or objection. Counsel for the petitioner would submit that since no such reply was given by the Bank within a period of seven days, the petitioner had been constrained to move this Court against the notice. Counsel for the Bank, on the other 3 hand, would submit that if the petitioner was supposed to pay the amount within the period of five years but did not choose to pay the amount as per agreement, the Bank was not to wait for a period of five years so as to allow the amount of loan to be further enhanced. The Bank, therefore, took shelter under the provisions of section 13(2) of the Act. Replying to the other part of the submission, counsel for the Bank submits that the action under section 13 of the Disaster Management Act is not automatic rather for that purpose the petitioner has to approach the authority, namely, the National authority which alone has been vested power for recommending the relief in payment of loan. Counsel for the Bank would submit that no such statement at least had been made by the petitioner in this writ application and the provisions of law under Disaster Management Act, 2005 has been pressed before this Court only by way of faux-pas. This Court would find that once liability of the amount under section 4 31(2) of the Securitization Act is admitted merely because the petitioner was hard pressed on account of national calamity by way of flood, will not be a ground to refuse payment of the amount under the Act. True it is that the Bank is enjoined to examine the representation of the petitioner, but then proviso to section 13 (3-A) of the Act makes it clear that such dismissal of representation is merely by way of an information, in as much as, on the basis of those reasons indicated by the Bank the loanee/creditor does not get any right even in respect of preferring an application to the Debt Recovery Tribunal. That being the position when the counsel for the Bank is not prepared to give accommodation for a period of three years for realization of the amount, there can be little option for this Court but to dismiss this writ application as liability by the petitioner is admitted and mode of recovery of such amount under the Act is also well settled. Reliance placed by the petitioner 5 on the provisions of Disaster Management Act, at this stage for avoiding liability under the Act is also wholly misconceived as no order has been passed by the National Commission to this effect. Be that as it may, this Court does not find any merit in this writ application and accordingly, the same is dismissed. (Mihir Kumar Jha, J.) Abhay Kumar