Decided on June 04,2019

Vishnutek Engineers Pvt Ltd Appellant
Authorised Officer, Asrec (India) Limited Respondents

Referred Judgements :-



U. Durga Prasad Rao, J. - (1.)The petitioner seeks writ of Certiorari calling for the records pertaining to order, dated 20.04.2017, in S.A. No.278 of 2016 on the file of Debts Recovery Tribunal (for short, 'the DRI'), Visakhapatnam, and the order, dated 08.02.2019, in Appeal No.209 of 2017 on the file of Debts Recovery Appellate Tribunal (for short, 'the DRAT') at Calcutta, In charge Debts Recovery Tribunal, Allahabad, and quash the same and consequently set-aside all the proceedings initiated against the petitioner by respondent Nos.1 and 2 under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'the SARFAF SI Act') as arbitrary, illegal and violative of principles of natural justice.
(2.)The petitioner's case, succinctly, is thus:
(a) The petitioner is a private limited company carrying on business in sales and service of earth moving and material handling machinery and equipment and their lubricants. For their business purpose, the petitioner availed credit facilities from respondent No.3 (R3) to an extent of Rs. 500.00 lakhs. The Directors of the petitioner company also constituted a Partnership Firm and carrying separate business in the name and style of 'M/s. Vishnu Tek Logistics' a Partnership Firm and the said firm also availed certain finances from R3. The petitioner and the partnership firm went into rough weathers and therefore they defaulted in repaying the loans availed from R3. The loan repayable to R3 is secured by 6 properties narrated in the Writ Petition, out of which the property shown in Item No.2 was released in favour of the petitioner by R3 and the property shown as Item No.5 was subsequently sold by respondent Nos.1 and 2 (R1 & R2) highhandedly and the same is subject matter of litigation in S.A. No.232 of 2016, pending on the tile of DRT, Visakhapatnam.

(b) The further ease of the petitioner is that in view of the default committed by the petitioner as well as the partnership firm, R3 initiated proceedings against the petitioner under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, 'the RDDB Act') and the SARFAESI Act. R3 issued notice, dated 12.05.2009, under Section 13(2) of the SARFAESI Act, demanding the petitioner to pay a sum of Rs. 7,14.45,950.03 as on 11.05.2009. The petitioner along with the partnership firm approached R3 for settlement of the loan account under One Time Settlement (OTS) scheme, as per the norms issued by the Reserve Bank of India. R3 accepted the proposal and agreed to settle the loan account of both the petitioner and partnership firm for a sum of Rs. 640.00 lakhs and communicated the same to petitioner vide letter bearing No. 1729/45/90, dated 30.09.2013. The petitioner and partnership firm in order to avail the concessions granted under OTS scheme, together paid rupees one crore immediately. R3 had granted time till 19.12.2013 for payment of balance amount of Rs. 5.40 crores.

(c) It is further submitted that since the petitioner and its partnership firm were facing financial crunch, they along with Rl & R2 approached R3. The petitioner, R2 and R3 entered into a Tripartite Memorandum of Understanding (MOU) to clear the balance OTS amount. As per the terms of MOU, the balance amount Rs. 5.40 crores under the OTS was agreed to be paid by R2 to R3 and in turn R3 was obligated to assign the financial assets to R2 along with the security interest. In terms of the aforesaid tripartite MOU, R3 after realizing its debt in terms of OTS, executed an Assignment Deed, dated 16.12.2013, in favour of R2 and transferred the loan and securities. Since R3 had recovered all its dues under OTS from the petitioner and the partnership firm, it closed the loan account as on 17.12.2013. After closure of the loan account, Rl & R2 developed an evil intention to knock away the valuable security available with them. They sought to initiate proceedings under Section 13(4) of the SARFAESI Act without issuing pre-mandatory notice under Section 13(2) of the SARFAESI Act in a mala fide manner. Thus, without issuing a fresh demand notice, R2 sought to rely on Section 13(2) notice, dated 12.05.2009, issued by the R3, and pursued further remedies under Section 13(4) against the petitioner and its partnership firm. They had surreptitiously managed to sell Item No.5 of the property and same is subject matter of litigation in S.A. No.232 of 2013, pending on the file of DRT, Visakhapatnam. In spite of petitioner intimating them to secure better offers by its email dated 09.03.2016, R2 finalized the sale at an absurdly low price. Prior to OTS, R3 classified petitioner's account as Non Performing Asset (NPA) but after OTS and closure of the loan account by R3, the petitioner's account can no longer be treated as NPA. The petitioner requested R2 to furnish the details of outstanding amount by its email, dated 16.09.2016. However, R2 refused petitioner's request through its email, dated 17.09.2016.

(d) Further case of the petitioner is that R2 issued possession notice, dated 20.10.2016, as against the properties mentioned in Item Nos.3 and 4. However, the possession of Item No.4 is still with the petitioner. In order to effectively protect itself from the highhanded and illegal acts of R2, the petitioner and the partnership firm filed S.A. No.278 of 2016 before the DRT, Visakhapatnam. However, without appreciating the contentions raised by the petitioner in proper perspective, the DRT, Visakhapatnam, dismissed S.A. No.278 of 2016, vide its order dated 20.04.2017. Aggrieved, the petitioner filed Appeal No.209 of 2017 before the DRAT, Calcutta. However, the said Appeal was mechanically dismissed by the DRAT, Calcutta, vide its judgment, dated 08.02.2019.

Hence, this Writ Petition.

(3.)Heard the arguments of Sri S.Ravi, learned senior counsel, representing on behalf of J.N.Bhushan, learned counsel for petitioner, Sri D.Prakash Reddy, learned senior counsel, representing on behalf of Sri M.Srinivas, learned counsel for respondents 1 and 2 and Sri M.Balasubramanyam, learned counsel for the 4th respondent.

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