- (1.) The present writ petition has been filed under Article 226/227 of the Constitution of India for quashing the notice dated 16.11.2011 (Annexure P-5), issued under Section 13(2) of the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity, the 'SARFAESI Act').
(2.) The case set up by the petitioner is that it had availed cash credit facility from the respondent-Bank. The petitioner was running its business under the name and style of M/s United Industries. In the month of June/July, 2011, the behaviour of the Bank became strange and bothersome and the petitioner was asked to deposit illogical charges on the threat of declaring the account as Non Performing Asset (NPA) and selling the immovable properties of the petitioner. The Bank had not provided the petitioner any statement of account nor the detail of charges asked which the petitioner was forced to pay inspite of the request made to it vide letter dated 13.07.2011 and 10.09.2011. Respondent No.2 confided with the petitioner that since he was under pressure from the higher officers of his Bank to ensure that the account of the petitioner was declared NPA and the assets were brought to sale and, therefore, suggested the petitioner to shift his account to some other Bank. When the petitioner was on the verge of entering negotiations with the other Bank for taking over the account, it received notice dated 16.11.2011 under Section 13(2) of the SARFAESI Act and the petitioner wrote to the Bank on 26.11.2011 asking various details. Respondent No.2 advised him that he was being pressurized by respondent No.4 but he would not succumb to his pressure and, therefore, the petitioner did not pursue the matter. On the transfer of respondent No.2, respondent No.3 was posted at his place and the petitioner came to know that respondent No.3 had approached some realtors on behalf of respondent No.4 to arrange for some benami purchaser to purchase the property under the SARFAESI Act for further transfer at the bidding of respondent No.4. Since no notice was issued under Section 13(4) of the SARFAESI Act, the petitioner could not approach the Debts Recovery Tribunal (for brevity, the 'DRT') and hence the writ petition was filed.
(3.) Respondent-Bank, in its reply, stated that the limit of the cash credit of the petitioner was Rs. 1,25,00,000/- and the account had been overdrawn on 28.07.2011 and after expiry of 90 days, the account had become NPA and, accordingly, the notice under Section 13(2) of the SARFAESI Act had been issued. The petitioner had cleverly taken the certificates from the then Bank Manager on 21.02.2011 and 10.10.2011 during the said period of 90 days when the account was not declared NPA since the petitioner was an old customer of the Bank and had been dealing for the last so many years with the then Chief Manager, who issued the certificates in good faith. It was further pleaded that the letters dated 26.11.2011 and 21.12.2011 were not noted in the record of the Bank. The petitioner had an alternative remedy under Section 17 of the SARFAESI Act. Reliance was placed upon M/s Triveni Yarns Ltd. Vs. Punjab Financial Corporation, 2008 150 PunLR 286and it was pleaded that not only M/s United Industries had taken financial assistance from the respondent-Bank but another company, viz., Punjab Ferrics Private Limited had also taken financial assistance from the respondent-Bank. The said company mortgaged property measuring 19 kanals situated at Village Majrian, Sub-Tehsil Majri, Tehsil Kharar and this property had been sold by one of the Directors of the company, Jatinder Pal Singh though the original sale deed dated 12.06.2006 was deposited with the Bank. Various allegations were also made that another property situated at Village Bhatha Dhua, Tehsil Jagraon was also given as security and the said property had been purchased by Parminder Singh Nalwa in the auction conducted by the DRT, Chandigarh, which was well within its rights to proceed under Section 13 of the SARFAESI Act. Petitioner had concealed material facts and mis-stated facts regarding the story of the Bank officials being mixed up with the builders.;