1 WP 3124/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3124 OF 2009 M/s. Utsav Overseas Pvt. Ltd. Jalgaon And Others. ... Petitioners. Versus The Authorised Officer, State Bank of India, Jalgaon MIDC Area Branch Jalgaon & Others. ... Respondents. ­­­­­ Shri. A.G. Talhar, for the petitioner. Shri. Sunil A Kulkarni, Advocate for respondent Nos.1 to 5. ­­­­­ With Writ Petition No.3132 Of 2009 M/s. J.J. Udyog D/2, MIDC Area, Jalgaon And Others. ... Petitioners. Versus The Authorised Officer, State Bank of India, Jalgaon MIDC Area Branch Jalgaon & Others. ... Respondents. ­­­­­ 2 WP 3124/2009 Shri. P.M. Shah, Senior Counsel, holding for Shri. A.G. Talhar, for the petitioner. Shri. Sunil A Kulkarni, Advocate for respondent Nos.1 to 3. Shri. U.S. Malte, Advocate for respondents Nos.7 and 8. ­­­­­ With Writ Petition No.3133 Of 2009 M/s. Utsav Commodities Pvt. Ltd. G/5/3­B, MIDC Area, Jalgaon & Others. ... Petitioners. Versus The Authorised Officer, State Bank of India, Jalgaon MIDC Area Branch Jalgaon & Others. ... Respondents. ­­­­­ Shri. S.V. Gangapurwala, Advocate, holding for Shri. A.G. Talhar, for the petitioner. Shri. Sunil A Kulkarni, Advocate for respondent Nos.1 to 3. ­­­­­­ CORAM: NARESH H PATIL & N.D. DESHPANDE, JJ. DATE: 26th JUNE 2009 3 WP 3124/2009 PER COURT : 1) Heard. 2) Learned Senior Counsel Shri. P.M. Shah, appearing for the petitioners submits that the Debts Recovery Tribunal has committed error in not appreciating the documents on record and has misread the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (for short, “the Act”). The issues raised by the petitioners before the Debts Recovery Tribunal were totally ignored. Initially, the petitioners in Writ Petition No.3132 i.e. M/s. J.J. Udyog offered rupees 2,83,69,500/­ to the Bank. The Bank rejected the offer and expected higher offer. The petitioners offered rupees 3,11,87,750/­ which was improved offer but ignoring that, the Bank decided to proceed with the sale of the property by fixing reserve price of Rs.1,54,83,000/­. Ultimately, the property was sold at price of Rs.1,98,40,000. 4 WP 3124/2009 3) In all these matters, learned Senior Counsel Shri. P.M. Shah submits that an amount of Rs.forteen crores is outstanding against the petitioners which was borrowed from the bank. Learned Senior counsel by placing reliance on reported judgment in Himmatlal Harilal Mehta v. State of Madhya Pradesh, A.I.R. 1954 S.C. 403 submits that remedy of writ petition is not barred because of remedy of statutory appeal is provided in law. The learned counsel Shri. S.V. Gangapurwala appearing in remaining two matters submitted that the writ petition cannot be barred in view of availability of alternate remedy of appeal. The counsel has placed reliance on a reported judgment in Kishore Kumar Khaitan v. Praveen Kumar Singh, 2006 AIR SCW 1077. 4) The learned counsel further urged that the Debts Recovery Tribunal totally ignored the issues raised by the parties which has caused serious prejudice to the petitioners’ case. 5 WP 3124/2009 Remedy of appeal, therefore, would be merely illusory and would frustrate the rights of the petitioners who were initially willing to offer substantial amount to the bank. In the submission of the counsel, it is a fit case where writ petition could be entertained. 5) Learned counsel Shri. Kulkarni appearing for the bank refuted the allegations made against the bank by the learned counsel for the petitioners. The counsel submits that in accordance with the provisions of the Act, the bank considered the offer and replied the borrowers by rejecting the offer and thereafter in accordance with the procedure set down in law, sold the property. The sale transactions are completed in the month of February 2009 and the bank had incurred more than ten lacs rupees for security of the property as possession is still with the bank. The counsel submits that the Debts Recovery Tribunal has considered all the issues raised by petitioners and there is no 6 WP 3124/2009 glaring or serious error in the view adopted by the Debts Recovery Tribunal. The counsel has placed reliance on (1) Industrial Investment Bank of India vs. Marshal’s Power and Telecom (I) Ltd, 2007 (2) Mh.L.J. 796; (2) State Bank of India vs. M/s. Shri Shyamji Sales, AIR 2003 MP 8; and, (3) R.V. Saxena vs. U.O.I., AIR 2006 Delhi 96. It is also submitted that the condition of deposit of amount for preferring appeal is a legal provision which could not be termed as arbitrary or illusory. The counsel submits that the petitioners did not approach the Appellate Authority and have preferred to file writ petitions and, in the submission of the counsel, there is no exceptional circumstance for filing writ petition. The counsel submits that huge amount of the bank is blocked which is required to be recovered and in view of the special provisions of the Act, the bank is entitled to proceed to sell the property and recover the amount of loan. 7 WP 3124/2009 6) We have considered the submissions advanced by the learned counsel for the parties and perused the judgments cited before us. In the facts of the case we find that the petitioners could have filed statutory appeals which is provided under section 18 of the Act. Section 18 of the Act reads thus: “18. Appeal to Appellate Tribunal: (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under section 17, may prefer an appeal along with such fee, as may be prescribed to the Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal: Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower: Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less: Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty­five per cent of debt referred to in the second proviso.” 8 WP 3124/2009 7) The second proviso to Section 18 grants discretion to the Appellate Tribunal for the reasons to be recorded in writing to reduce the amount less than 25% of the amount of debt referred to in second proviso. 8) We find that if the petitioners are in a position to offer amount more than rupees three crores to the bank then we do not find that the petitioners are unable to file appeal to the Appellate Tribunal which is statutory appeal. Considering the purpose of enactment of the Act and the facts of the case we are of the opinion that exercise of extra ordinary writ jurisdiction of this Court is not required and necessary. All the issues raised by the petitioners herein could be raised before the Appellate Tribunal. 9) Learned counsel Shri. Gangapurwala submitted that the bank could secure more than Rs.4,45,52,000 towards sale proceeds and this amount could be taken into consideration as 9 WP 3124/2009 statutory deposit for filing of appeal. This statement is disputed by Shri. Sunil Kulkarni, counsel for the Bank. The counsel submits that though the property is sold at the said price the purchasers would deposit the entire sale amount at the time of confirmation of sale. The request of the learned counsel for the petitioners that this amount towards sale proceeds shall be considered as compliance of the second proviso to Section 18 of the Act and the petitioners shall be permitted to file appeal on that basis is not acceptable. 10) For the reasons stated above, we are not inclined to entertain these writ petitions. The writ petitions are dismissed. 11) Shri. Gangapurwala learned counsel for the petitioners submits that since last six months the interests of the petitioners were protected under the orders of the Court. Therefore, the petitioners may be protected for 10 WP 3124/2009 further six weeks. Learned counsel Shri. Sunil Kulkarni and Shri. Uday Malte have stoutly resisted this request on the ground that the petitioners have not made out any case for continuation of stay. In view of the fact that the transaction of sale is completed and if protection as prayed by the petitioners is granted the very purpose of the proceedings initiated by the bank would be frustrated. The request made by the petitioners stands rejected. (N.D. DESHPANDE, J.) (NARESH H PATIL, J.) rsl/ wp.3124.09