Lf^ HiGH COURT OF CHHATTISGARH AT BILASPUR D.BJ4QN'BLE SHRI DHIRENDRA MISHRA, & HON'BLE SHRI R.N. CHANDRAKAR. JJ WntA@@eaLMo._3l5of2eiO Appeliants 1. Smt Sushila Oevi Chjmnani, aged about 54 Petitioners years, wife of Shri Triiokchand Chimnani. 2. Anil Kumar Chimnani, aged about 36 ^ars, son ofShri Trilokchand Chimnani. Both residents of tdgahbhata, Lakhenagar, Raipur (CG) Versus Resoondents 1. Bank of Baroda, a banking company duly incorporated under the retevant provisions of the Banking Companies (Acquisition & Transfer of Undertakings) Act, Snter-atia amongst other branches a branch office at Mahaveer Goushala Premises, Moudhapara, Raipur, through the Chief Manager, Bank of Baroda, Mahaveer Goushala Premises, Moudhapara, Raipur. M/s Medico Surgical Enterprises, through Shri Prakash Vatyani, son of Late Chandrapal Wadhwa (Vatyani), B-9, Suman Complex, Near Madhuvan Hotel, Sadar Bazar, Ralpur. Smt. Kanta Devi, aged about 54 years, widow of Late Chandrapai Wadhwa. Prakash Wadhwa, aged about 41 years, son of Late Chandrapa! Wadhwa. 5. Mahesh Wadhwa, aged about 39 years, son of Late Chandrapal Wadhwa. Respondent Nos. 3 to 5 are residente of Ravigram, Telebandha, Raipur. Present: Mr. B.P. Sharma, counsel for the appellants, ORAL JUDGMENT (16th September, 2010) Per Dhlrenclra Mi^jra, J This writ appeat is directed against the order dated 6th August, 2010 passed in WP(c) No. 2045/07, whereby the petttion fited by the appeltants herein has been disposed of with an oteervation that the petition is not being entertained on the ground of availabitity of afternative statutory appellate fwum ^ %.~^l under the provisions of the Securitization and Rasonstruction of Financiat Assete and Enforcement of Security (nterest Act, 2002 (in short "the Ad:, 2002"). 2. Shri B.P. Sharma, tearned counsel appearing for the appellante, argued that loan was advanced to the borrower M/s Medteo Surgjcal Pvt. Ltd. by securing the loan through equitable mortgage by deposit of titte deeds of the property on 25 October, 1985. An agreement (Annexure P/1) was executed on 18.2.1987 between respondents No. 3 to 5& others and the appellants with respect to the property mortgaged to respondent No.1 vide Annexure P/3. A civil suit was fiied by the appellants for perpetual injunction against the Bank of Baroda and others as proceedings were mjtjated under the provisions of M.P. Lok Rin Shwlya Rashiyo Ki Vasuli Adhiniyam against the borrowers. However, the proceedings were dropped at the instance of respondent No.1 and later on, fresh proceedings were initiated for recovery of loan under the Act, 2002 and possession notice was issued to M/s Medico Surgical Enterprises through its legal heir under Section 13(4) of the Act, 2002 read with Rule 9 ofttie Security Interest (Enforcement) Rutes, 2002. Refemng to Section 36 of the Act, 2002, it was vehemenWy argued that rt was not open to the respondents to take recourse to sub-section (4) of Section 13 of the Act, 2002 as equitabte mortgage was effected in tie year 1985 and proceedings were hopelessty barred by limitatjon prescribed under the Limitetion Act, 1963 and thus, the entire proceedings initiated by the respondent-Bank under the Act, 2002, are wtthoutjurisdjction. 3. Heard learned counsel for the appeltants. Perused the pteadings of the respectJve parties in the writ petition and the documents annexed wlfri the pleadings. 4. Indisputebly, the proceedings under sub-section (4) of Section 13 have been initiated after issuance of demand notice dated 14th November, 2005, to the borrower-firm through their legal heirs for a sum of Rs.16,04,637/-. On failure of the borrower to pay the amount, possession notice (Annexure P/5) was issued and the same was published in the newspaper (Annexure P/4). From the pleadings of the respective parties, it is observed that disputed questions of faet with regard to title of the appellants over the property and tocus stancS of the appellante to challenge the action of the respondent-Bank, are involved. From the documents availabte on record, it is clear that proceedings under sub-section (4) of Section 13 of the Act, 2002 were initiated ^ ••-<'% ':%^^ ^ 5\ after issuance ofdemand notice to the borrower way back in ttre year 2005. It is not clear v^iether any objection was raised by the legat representatives of the borrower with regard to limitatjon as no reply either on behalf of the borrower or the appellante herein is available on record. 5. Admittedly, the appellants have an efficadous alternative remedy of statutory appeal under the provisions of the Act, 2002 and the disputed questions of fact involved in this petition cannot be gone into in writ proceedings. Learned Single Judge, consjdering the avaHability of altemative statutory remedy under the Act, 2002, has declined to entertein ttie writ petition, teaving open the question of limitation raised by the petitioners. We find no iltegality or infirmity in frie impugned order and the same is strictly in accordance with law. There is no substance in Uiis appeal; the same deserves to be and is, accordingty, dismissed at the admission stage itself. Sd/- Dhirendra Mishar Judge Sd/- R.N. Chandrakar Judge «/