^ •^- >^ RFMfi ;^l^i?! IN THE HIGH COURT OF JU&ICATURE AT BILASPUR WRIT PETITION fc) N0. C ^9 of 2011 PETITIONER Vs RESPONDENT Anil Kumar Agarwal, son of Shri Radhe Shyam Agarwal, aged 42 years, Proprietor of M/s Shyam Rice & Parboiling Unit, Nevra, District Raipur. I.C.I.C.I. Bank, a banking company duly incorporated under the relevant pr-ovisions of the law and a bank within its meaning under the Banking Regulation Act carrying on the business of banking all over the India, having its office RNA6, Khajrani, Malav Parisar, A.V. Road, Indore (M.P.) and a branch office at Civi] Lines, Raipur (C6). WRIT PETITION UNbER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA A^€' ^^y ..••y.-'' ^^€^ ^ •^ ..•••u^^ ^ "•" ^- HIGH COURT OF CHHAmSGARH : BILASPUR S.B. : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA. J. PETITIONER RESPONDENT W.P.tCI No.559/2011 Anil Kumar Agarwal Versus I.C.I.C.I. Bank Petition under Article 226/227 of the Constitution_pf India Appearance: Shri B. P. Sharma, counsel for the petitioner. ORAL- ORDER (Passedon 31.01.2011) Heard on admission. 2. By this petition, the petitioner seeks to impugn and challenge initiation of proceedings of recovery of loan granted to the petitioner by the respondent-Bank, under the provisions of Securitization and Reconsta-uction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as"theActof2002"). 3. Assailing the correctness and validity ofthe notice dated 7.1.2011 and the proceedings drawn by the respondent-Bank, learned counsel for the petitioner subraitted that earlier on an objection filed before this Court, calling in question^validity of recovery proceedings in the matter of recovery of loan, fhis Court vide its ..-y •° "Y -^f- ff « -2- ^ order dated 7th September, 2010 passed in W.P. (C) No. 5040/09 (Annexure P-6) found that the notice dated 21.3.2009 issued in purported exercise of powers under Section 13 (2) of the Act of 2002 and proceedings drawn thereafter are illegal and said notice dated 21.3.2009 and the proceedings initiated by the District Magistrate, Raipur were quashed with a further direction to fhe Bank to decide the objection, if any, filed by the petitioner within a period of 10 days and pass speaking and reasoned order and communicate the same to the petitioner. Learned counsel for the petitioner therefore submitted that after the entire proceedings and notice under Section 13 (2) of the Act of 2002 were quashed, the respondent authority was obliged under the law to decide th'e objection offhe petitioner but in stead of deciding the objection of the petitioner within a period of 10 days as directed by this Court, by a spealdng and reasoned order, the respondent-authority has proceeded, though with impunity, to issue a fresh notice under Section 13 (2) of the Act of 2002. In his submission, the respondent-Bank could not have initiated fresh proceedings of recover by taldng recourse to the provision contained in Section 13 (2) of the Act of 2002 without having complied with the order passed by this Court earlier on 7th September, 2010. 4. The other submission of leamed counsel for fhe petitioner is that the respondent-Bank having issued a notice under Section 13 (2) of the Act of 2002, earlier, could not issue a second.notice and the same is not permissible urider the law, as notice could be \ ..•.^t^-^^i.^.. ^^ ••'' ,-^. '^ tgjg^ J :i^-- 'w'"^{- " 3 - issued only once and repeated notices could not be issued. In support of his submissions, learned counsel for the petitioner relied upon fhe judgment of Supreme Court in the case of Sadanandan Bhadran Vs. Madhavan Sunil Kuinar1. 5. A perusal of the order passed by this Court on 7th September, 2010 in W.P.(C) No. 5040/09 shows that the petitioner had earUer approached this Court seeking to challenge the legality and validity of the notice dated 21.3.2009.issued by the respondent- Bank under the provision of Section 13 (2) of the Act of 2002 with a further prayer to quash the proceedihgs initiated by the District Magistrate, Raipur. This Court after examining fhe statutory scheme engrafted under Sections 13(1), 13 (2), 13 (3A) 8s 13 (4) of the Act ofj2002 and fhe judgment of Supreme Court in the case of Marida Cheinical Ltd. and others Vs. Union of India and Ors. [ (2004) 2 SCC 311] & Transcore Vs. Union of India & another [ (2008) 1 SCC 125] held that the provision of sub-section (3A) of Section 13 of the Act of 2002 which is a mandatory statutory provision, was not complied with before taking recourse to provision of Section 14 of the Act of 2002 and further held that Section 13 (3A) of the Act of 2002 provides specific procedure which cannot be permitted to be contravened. The aforesaid conclusion was drawn by the Court considering that the reply dated 5.5.2009 was submitted by the petitioner pursuant to - notice dated 21.3.2009 issued under Section 13 (2) of the Act of 2002, receipt of the same was refused by the Bank and thus there 1 AIR 1998 SC 3043 •:i,,l!-.J ! i "f ••.•:,W't&i.i^sSW ~^- % ~ 4 - was no occasion to consider the reply of the petitioner though the reply was filed within a period of 60 days. Upon such consideration and finding, the show-cause notice dated 21.3.2009 and proceedings initiated by the District Magistrate were quashed. Thus, the legal consequences, flowing from the order of the Court, is that no proceedings of recovery remained pending as the show cause notice dated 21.3.2009 was quashed by this Court. Therefore, the only option left with the Bank was to reinitiate fresh proceedings in accordance with law and the decision ofthis Court in the aforesaid petition. 6. The direction of this Court as contained in paragraph -21 of the order to decide the objection, if any, filed by fhe petitioner within a period of ten days and pass speaking and reasoned order and communicate the same to the petitioner, in the opinion of this Court, required the respondent-Bank to consider petitioner's objection. However, the occasion for such exercise and compliance of the direction would arise only when the respondent-Bank initiates fresh proceedings under Section 13 (2) of the Act of 2002 as the earlier notice dated 21.3.2009 and proceedings drawn thereafter have been quashed by this Court. Therefore, the submission of learned counsel for the petitioner that the respondent authority ought to have decided the objection, which was submitted pursuant to the earlier show- cause notice dated 21.3.2009 and which now stands quashed, cannot be accepted. Unless there are proceedings initiated under t- ,ii ,.:< -K-aT ?'~T .1 '•.- -^rf'^-;' -5- the law, there would be no occasion to decide the objection. The submission fhat this Court directed to decide the objection filed earlier cannot be accepted. The respondent -Bank has now issued a fresh notice under Section 13 (2) of the Act of 2002 on 7& January, 2011. The petitioner would be at Uberty to file reply within the time stipulated therein. Once such objection is filed by the petitioner, respondent-Bank would be under an obligation to decide the same within a period of 10 days and pass speaking and reasoned order and communicate the same to the petitioner, as held by this Court in paragraph -21 of the order dated 7U1 September, 2010 passed in W.P. (C) No.5040/09. Therefore, this petition is clearly premature. 7. The other submission of learned counsel for the petitioner fhat the notice having been issued once earlier, it cannot be repeated and successive notices could not be issued one after the after, I am afraid, is misconceived in the facts and circumstances of the present case. Present is a case where during the subsistence of the earlier notice dated 21.3.2009, the Bank has proceed to issue another notice under Section 13 (2)ofthe Act of2002. The earlier notice dated 21.3.2009 has already been quashed by this Court, therefore, if the respondent-Bank has proceeded to issue a fresh notice under Section 13 (2) of the Act of 2002, to my mind, there is no illegality on that count as submitted by leamed counsel for the petitioner. The decision reUed upon by learned coqnsel for the petitioner in the case of Sadanandan Bhadran (supra) has no Eiill l f "TTT- 'y J-:i -6- ,Y application in the present facts and circumstances of the case as the context in which the issue came up for consideration in that case are entirely different. 8. In the result, I do not find any merit in the petition and the petition is therefore summarily dismissed without notice to the respondent. Sd/'- Matimdra Mohan Shrivastava Judge Praveen l^ il -i»l'-!-'te- a a ::a