6 jng|@ B@raeh WSi -•n- K B !?J 3 tf IN THE HIGHCOURT OF TUDICATURE AT BILASPUR WRIT PETITION (c) N0. R^3$l of 201-1 PETITIONER ^ .p-"^' /•'' "" ^' ..•'' <i<-v Vs RESPONDENTS M/S STALLION STEELS INDORE PRIVATE LIMITED, a company incorporated under the Coinpanies Act, 1956, 211, Shalimar Corporate Centre, South Tukoganj, Indore (M.P.), having its plant / works and the precnises of M/S IND SYNERGY LIMITED at Raigarh in the State of Chhattisgarh I.D.B.I Bank, a banking coinpany duly incorporated under the relevant provisions of the law and a bank iwithin its meaning under the Banking Regulation Act carrying on the business of banking all over the India, having its office al city SME centre, 90 Nandlapura, 1st floor, Mahajan property Jawahar Marg, Indore - 452003 (M.P.) and also having its branch at Civil Lines, Raipur (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA TO THE HON'BLE CHIEP JUSTICE a HiS COMPANION iUDG^ OF THE HON'BLE MGH COURT OF CHHATHSGARH 1. PARTICULARS OF THE PETITIONER:- As per the cause title. ^.ttd- a^w^ ^'a?~A^ HiGH COURT OF CHHATTiSGARH : BILASPUR WRiT PET1TION (C) N0. 2339 OF 2011 PETIT10NER iVI/s. Staiiion Stee's indore Prjvate Limited. Versus RESPONDENT i.D.B.S. Bank (Writ Pet'tion under Articie 226 of the Constitutson of india) Singte Bench : Hon'bte Shri Satish K. Agnihotri, J. Present:- Shri B.P.Sharma, Advocate forthe setitloner. Shrl Ashok Dubey, Advocate for the respondent. ORDER ('ORAU (Passed on ihis 03 day of August, 2011) 1. Chailengs in this petition is to the Isgaiity and validity of the notice datsd 26.02.2011 (Annexure P-1) under the provisions of Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforoement of Security Interest Act, 2002 (for short "the Act, 2002'). 2. The brief facts, as projected 'oy the petitioner, v/hich are relevant for adjudlcation of the issue involved herein is that, the petitioner obtained financial sssistance from the respondent Bank to the tune of Rs. 2.80 Crore in the vear 2009. Thereafter, after neaotiation. the respondsnt Bank agresd for grant of ioan and sanction the term loan of Rs. 2,48,00,000/-. The said amount couid not rs-paid back, as there were some defauits in payment of instaiiments, however, the interest on the amount vvas paid from ifs ovvn sourees, as there was no profit generation from the project. 3. The respondent Bank tssued a notice under Section 13(2) ofthe Act, 2002, calting upon the pstitioner to pay a sum of Rs. 2,81,55,8SO/- Within a period of 60 days from the date of issue of notice as on January 31, 2011 . Thereagainst, the petitioner filed a reply dated - nii- (Annexure P-2) explaining the reasons for non-payment of the smouni, wnicn wss rscsiysci on ivisircri, ^.^, ^Ui s. iz appssrs uiS^ c'n the recelpt of the rspresentation, a decision was iaken under Section 13(3A) of the Act, 2002 on 30.03.2011 rcjecting the explsnation of the petitloner. 4. Chaiiengs of the petltloner is on the ground that ths rspresentation of the petitioner was not dscided obiectively or within a osriod of seven "VWff! i^ days. Thus, the notice unaer Section 13(2) ofthe Act, 2002 deser/es to bequashed. Having heard leamed counsel appearing for the parties, perused the records, it is indisputable that a notice under Section 13(2) was issued on 26.3.2011, VB'hich was responded to by the petitioner by repiy (Annexure P-2), the same was recelved on 29.03.2011 and the Bank after considering the same rejected the representation on 30.03.2011 (Annexure R-2). inf n the case on hand, undsr Section 13(2) ofthe Act, 2002, notice has been issued and the order under Sectlon 13(3A) has bsen passed. Thereafter, the Bank has to proceed with passlng of the order Sectlon 13(4'i of the Act, 2002 to recover the secured debt foilowing inanners: "(a) take possession of the secured assets of se bonwwer including the rlght to iransfer by way of iease, assignment or saie for fsalising the secured asset; fb) iake over the management of fte business of the sorrowsr includsng the right to transfer by way of tease, assi-gnment or sale for seaiisjng the secured 'nty wSwre ffiis ^A/S Provided thst a~'e light to t'snsfer 'ov wav of leasa, assignment or be exerdssd substantsa! part of the business of me as seci.'ntv for tne deQt: Provided further that where the management ofwhole of the business or pan of the bussness is severable, the secured credltor shall take over fhe managemeni of such bi.'siness of the borrawer which is reiatable to the securitv for ihe debt. /^ ; ^^ iw °: TfVsSH' manager), to manags oossession of vh 1 fte secured assets the has been taken over by the fd} reqwre at any tsme by notice in ivriffng, any person wfw has acqusred any of the secured assets fmm ihe bonw/ver snd from whQm any money is due or may become due to ihe borrower, to pay the secwed credltor, so much of the money as js sufRcient to psy the secured dsbf'. it is stated at the bar that no order under Section 13(4) of the Act, 2002 have been passed tl!l date. Thus, the petition is premature as no cause of action has arisen after passing the order under Section 13(3A). The instant petition is not maintainable on the ground thatthe 0. respondent Bank has nof considered repiy of the petitioner to show cause notice undsr Section 13(2) ofthe Act, 2002, objectiveiy. in Unsted Bank oflndia v. Satyawaii Tondon & Others , the Supreme Court obse'wed as under:- "27. ff Js a mafer of senous concem that despite repeated pronouncement of this Court, fte High Courts continue to ignore the availabiiity of stahi'tory rsmedies under the DRT Act and SARFAESi fi.ct and exercf'se jun'sdiction under Aracfe 226 for pessing orders which hsve serious adverse impsct on tha rsght of banks and other fsnancia! institutians to recover thesr dues. We hope arxl tnjst that in futum the high Courts witl exerdse the'ir discretian 'in such matters ivftn greatsr aaiiaon, care and circumspectwn." ^sra SuDreme Court.in Kanaiyalal Lalchand Sachdev S. Others v. of Maharashtra and Others' obsen/ed as unrier: "22. Vv'e are in respectful agreement with the above snunciah'on of law on the poinf. !t js man'sfest that an action undar Section 14 of the Act constitutes an actson taken sjfer the stage of Section 13(4), and therefore. the same wouid fal! within the anfbit of Section 17(1) of the Act Thus, the Act Hseif contemplates an efRcacious rsiTSSdy for the borrower or any person atiected by an sctson under Section 13(4) ofyie Act, by pmvidiry foran appeai befora the DRT." !n view of the sbove, after order passed under Section 13(4) of the Act, 2002, the efficacious remedy l.e. sppeal under the provlsions of Section 17 of the Act, 2002 is avaiiab!e to the Detitioner and as such, no interference is warranted bv thls Court at this stage. 11. Accordingiy, the writ pet'tion is dismissed. No order asto costs. Sd/- iCAgi Judge IT '^r'.-^n /~'\ or^ R?;^ ^.'•J i'-/ {/ } -^S^f ^vJ ! (2011) 2 SCC 782