(^ HIGH COURT QE CHHATTCSGARH AT BILASPUR W.P. fc) No. 3919 of 2009 PETETIONERS: Kuldeep Sahu and another ^''•&^.s-.<. Versus RESPONDENTS; State of ChhattiS9arh & others .^_ POST FOR QRDER ON ^> OCTOBER. 2009 Sd/- . DhirendraMishra Judge .^^<i' "^ S 1 1 'w""t l' HI6H COURT OF CHHATTISGARH AT BILASPUR W.P. [c] No.3919 OF 2009 PETITIONERS 1. Kuldeep Sahu, son of Shri Chandrika Sahu, aged about 34 years, Proprietor M/s Sant Kabir Storage (Sramin), Village Dhulna, Navapara Rajiffl, District Raipur, Resident of Village Dhulna, Tahsil and bistrict Raipur (Chhattisgarh) Dr. Chandrika 5ahu, son of late Shivcharan Sahu, aged about 60 years, Resideitt of Village Dhulna, Tahsil and District Raipur (Chhattisgarh) Vs RESPONbENTS 1 State of Chhattisgarh, through Chief Secretary, Seneral Administration Department, D.K.S. Bhawan, Mantralay, Raipur (Chhattisgarh). 2. National A9ricultural and Rural Development Bank (NABAR&), Through Branch Manager, NABARD, Fafadih Chowk, Raipur (Chhattisgarh) 3. General Manager, Apex Bank (C.6. Rajya Sahakari Pandari Cloth (Chhattisgarh) 4. Branch Manager, Apex Rajya Sahakari R.D.A. Building, Bank Maryadit) Market, Raipur Bank (C.6. Bank Maryadit) Sharda Chowk, Raipur (Chhattisgarh) Present: Mr. H.B. Agarwal, Sr. Advocate with Mrs. Meera Jaiswal, Advocate. Mr. 5umesh Bajaj, Sovernment Advocate. For the petitioners. For respondent No.l-State OR b E R (Passed on«^0ctober, 2009) bhirendra Mishra. J 1. The petitioners have filed this petition and prayed for following reliefs; i. The Respondent No.3 be directed to release the possession back to the petitioners relating to godown which has been attached, further respondent No.3 and 4 '%. i %!.ssSS:Sa 1 1 •VS^etss% ''^.. '^^.i; Page 2 of 4 be directed to release the subsidy amount at Rs.18.75 lacs in favour of petitioners and adjust all the dues upto date by releasing the excess amount to the petitioners while giving back to possession, likewise respondent No.l and 2 be directed to secure that the petitioners are getting Rs.35/- per M.T. per month as rent as per Annexure P-10 so that installments and interest be paid within time and petitioners cannot starve. 2. Petitioner No.l applied for loan and submitted a project showing cost of project at Rs.84.12 Lac for construction of godown under the scheme of respondent No.2-NABARD. Respondent No.4 vide its memo dated 30.9.2004 sanctioned loan of Rs.56.25 Lac (amount towards subsidy at Rs.18.75 Lac <& bank loan of Rs.37.50 Lac) on the guarantee of petitioner No.2 and as per conditions mentioned in the said memo. The Chhattisgarh State Warehousing Corporation vide its memo of Annexure P-3 dated 4.5.2009 accorded permission to take the go-down on the monthly rent of Rs.50,435/-. Construction of godown was completed and completion certificate dated 24.2.2006 (Annexure P-5) was issued by the Architect. 3. Srievance of the petitioners is that even after issuance of completion certificate, subsidy for which the petitioners are entitled was not released and in the meanwhile a notice under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'Act, 2002') was issued to the petitioners on 23.1.2009 and thereafter a notice demanding possession under sub.-section (4) of Section 13 of the Act, 2002 was issued and the petitioners were directed to hand over the possession of the secured asset (godown) by 19.5.2009 and finally the possession notice of Annexure P-7 was issued on 18.5.2009 and actual possession was taken. After taking over the symbolic possession of the premises, the same was returned to the^ ""-•&.. i i^l^l^^ a '•'Sst,ti!?w' Page 3 of 4 petitioners on their undertaking (Annexure P-5) that they shall discharge entire loan with interest by 20.9.2009. 4. Mr. Agarwal, learned Senior Counsel for the petitioners submits that as per project report the petitioners were entitled for rent of godown @ Rs.35/- per metric ton per month, however, rent being paid by the Warehousing Corporation is too meager. Taking over of possession of godown in default of payment of installments is illegal.Respondent No.3 has committed error by not releasing the subsidy amount of Rs.18.75 Lac in time. 5. I have heard learned Senior Counsel for the petitioners. 6. From perusal of the document of Annexure P-2 it is clear that amount of loan of Rs.37.50 Lac and subsidy of Rs.18.75 Lac was sanctioned vide memo of Annexure P-2. Clause-17 of Annexure P-2 clearly stipulates that the Bank End Subsidy sanctioned to the petitioners was to be adjusted at the end only after repayment of loan and interest by the borrower. Contention of the petitioners that C.G. State Warehousing Corporation is not paying rent @ Rs.35/- per metric ton per month to the petitioners as per project report is of no avail as the petitioners have not filed any document to establish that there is any lega! right created in favour of the petitioners to claim the above rent from the C.6. State Warehousing Corporation, which has not even been made party in this petition. That apart, from the document of Annexure P-5 it is found that after receiving notice under Section 13 (2) of the Acf, 2002 the petitioners had acknowledged receipt of the same and had stated that they have handed over the symbolic possession of the property mentioned in the said notice under Section 13 (2) of the Act, 2002 on 19.5.2009 to the bank. They had further undertaken that if they fail to repay entire ^'St"".--^,:^ ;hcirt/- dues mentioned in the notice with interest till 20.9.2009, the bank shall be at liberty to takenecessary action to recover the said dues from the sale of mortgaged properties which is charged to the bank. Till then they are occupying the said property merely as agent of the bank. From the notice of Annexure P-7 it appears that on failure of the petitioner to abide their undertaking of Annexure P-5, the possession notice was issued. Even otherwise any action taken by the banking company under sub-section (4) of Section 13 of the Act, 2002 is appealable before the Debts Recovery Tribunal, who, after examining the facts and circumstances of the case and evidence produced by the respective parties, if satisfied, may order restoration of the possession of the secured assets to the borrower or restore the management of the secured assets to the borrower, as the case may be, under sub-section (3) of Section 17 of the Act, 2002. Thus, in our opinion the petitioners have efficacious alternative statutory remedy for redressal of their grievances raised in this petition. 7. For the aforesaid reasons, the instant petition is dismissed as not maintainable. No order as to costs. ;, - Sd/- Dhirendra Mishra Judge ij