- (1.) Sunbio Technology Limited, the third respondent, is a debtor of the State Bank of India, the first respondent, having committed default in repayment of dues in excess of Rs. 26 crore. The due repayment and discharge of the balance due and/or to become due under the credit facilities was secured, inter alia, by the personal guarantee of the petitioner who executed a Deed of Guarantee in his personal capacity on being approached by the third respondent for working capital credit limit to be accorded by the first respondent to the third respondent. It is claimed by the petitioner that no security interest was created by him in favour of the first respondent for grant of credit facilities to the third respondent. It is, however, not in dispute that the third respondent defaulted in making payment resulting in the loan account becoming irregular, whereafter the first respondent invoked the provisions of section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter the Act). At the centre of controversy is an e-auction notice issued by the second respondent (authorized officer of the first respondent), published in The Times of India, Kolkata Edition on May 10, 2014. The impugned notice, purportedly issued in exercise of power conferred by rules 6(2) and 8(6) of the Security Interest (Enforcement) Rules, 2002 (hereafter the Rules), mentions the name of the petitioner as one of several guarantors. The notice also gives details of properties (movable and immovable) sought to be sold on auction. The basic grievance of the petitioner, ventilated in this writ petition, is that the second respondent has acted in excess of jurisdiction by disclosing the name of the petitioner in the impugned notice as a guarantor and by wrongly treating plant and machinery as movable assets, which are not required to be disclosed in terms of rule 8(6) of the Rules.
(2.) Mr. Dutta, learned senior advocate appearing for the petitioner contended that while framing rule 8(6) of the Rules, providing the procedure for sale of secured immovable assets, the framer in its wisdom has expressly omitted publication of the details of the borrower, which is otherwise permissible in terms of rule 6(2) thereof for sale of secured movable assets. Furthermore, since the description of the details of the borrower cannot affect the nature and value of the property sought to be sold, the authorized officer cannot justify the publication of the details of the petitioner (who admittedly is not the owner of the properties put up for sale) under rule 8(6)(f) of the Rules.
(3.) Next, Mr. Dutta referred to a form bearing no. 8 uploaded by the regional manager of the first respondent along with the attachment thereto, being the Memorandum of Deposit for creation of further charge for term loan/overall limit where the initial charge is created by way of mortgage by deposit of title deeds dated February 22, 2008, whereby one of the directors of the third respondent had, inter alia, declared that " several landed properties of the Borrower covered by the said title deeds together with all assets permanently fixed to the lands and buildings and plants and machinery appertaining or affixed thereto shall continue to remain mortgaged to the Bank as security for and charged with the repayment to the Bank of the sum of Rs. 26,50,00,000.00 or such part thereof as might be due and owing to the Bank from the borrower ". Relying thereon, it was contended that the plant and machinery are to be treated as immovable property and the first respondent could not have invoked the provisions of rule 6(2) of the Rules to publish and circulate the details of the petitioner to his utter prejudice.;