- (1.) THE petitioner is a guarantor for the loan advanced by the respondent Bank SBBJ Industrial Estate Bharatpur to Virendra Kumar Sharma (respondent No.3 herein). The borrower respondent No.3 defaulted on the discharge of his obligation to respondent Bank for repayment of loan amount along with contracted rate of interest thereon. The respondent Bank therefore issued notice on 24-10-2007, apart from borrower also to the guarantor (petitioner) under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after the Rs.2002 Act').
(2.) IT is an admitted position that rather than filing objection/ reply to the notice under Section 13(2) of the 2002 Act the petitioner proceeded to lodge a First Information Report against the respondent No.3 as also the officers of the respondent Bank SBBJ, Industrial Estate Bharatpur for offences under sections 420, 467, 468, 471 and 120-B IPC at Police Station Udhyog Nagar, Bharatpur. The police on investigation filed a negative final report holding that the Bank had an equitable mortgage on house belonging to the petitioner as the original title deed was in deposit with the bank under cover of a memorandum for the purpose under the hand of the petitioner. On a protest petition filed by the petitioner the matter has been sent for re-investigation limited to obtaining a FSL report on the signatures of the petitioner on the memorandum depositing title deed of house No.E-28, Ranjeet Nagar, Bharatpur with the Bank. The report is stated to be still awaited. Counsel for the petitioner submits that the petitioner is neither a borrower nor a guarantor and consequently the entire proceedings initiated by the respondent Bank against him under the provisions of 2002 Act are wholly without jurisdiction. He submits that the respondent Bank is seeking to treat the petitioner as a guarantor on the basis of a photo-stat copy of the title-deed with his forged signatures on the memorandum. He submits that the original documents i.e. title deed pertaining to the property in issue (E-28, Ranjeet Nagar Bharatpur) is in deposit with the Collector Bharatpur. Counsel for the respondent Bank Mr. Yash Sharma submits that the Bank has in its custody the original title-deed in respect of the property E-28, Ranjeet Nagar Bharatpur, which was deposited by the petitioner along with a memorandum duly signed by the petitioner as a guarantor for the loan advanced to respondent No.3. It is submitted that the mere lodging of FIR would not obstruct the exercise of powers by the Bank conferred under the statute of the 2002 Act. He submits that the mechanism for recovery conferred by the 2002 Act is provided for the purpose of expeditious recovery of outstanding dues of the Bank against defaulting borrowers, and if such statutory mechanism is stalled on fake FIRs without any substance the whole purpose of the provisions of 2002 Act would be defeated. Counsel submits that in any event, whatever the merits of the petitioner's defence, he is free to avail of the same by moving appeal under Section 17 of the 2002 Act before the Debt Recovery Tribunal having jurisdiction. Counsel submits that an appeal is maintainable against the notice under Section 13 (4) of the 2002 Act (which has been issued to the petitioner) before the Debt Recovery Tribunal. Mr. Rajawat, learned Dy. Govt. counsel submits that on direction by the trial court the admitted signatures of the petitioner and the signatures of the petitioner on documents (with the Bank) creating the equitable mortgage have been sent for verification by the police to the FSL. He submits that the FSL report is likely to be received within three weeks. Heard learned counsel for the parties and perused the material available on record of the writ petition.
(3.) THE Hon'ble Supreme Court in case of United Bank of India Vs. Satyawati Tandan [(2010)8 SCC 110] has held that writ courts should not exercise their extraordinary equitable jurisdiction in respect of fiscal matters where an alternative remedy is available as it is under Section 17 of the 2002 Act against proceedings taken by secured creditor under Section 13(4) of the 2002 Act. Consequently the writ petition is liable to be dismissed on this ground alone. Counsel submits that Section 17 of the 2002 Act is wide enough to include the petitioner as a person aggrieved, even on his contention that he is neither a borrower nor a guarantor with the respondent Bank and yet his property in question is sought to be attached, and taken possession of and sold unlawfully. There is force in the submission of the counsel appearing for the Bank that the writ petition be dismissed on the ground of alternative remedy. The notice under section 13 (4) of the 2002 Act under challenge in the petition is a appealable under section 17 of the 2002 Act. Even otherwise the issue sought to be agitated in the present writ petition-whether the petitioner created an equitable mortgage of his house No.E-28, Ranjeet Nagar Bharatpur with the respondent Bank as a colleteral to the loan advanced by the Bank to respondent No.3 is an issue which would entail adjudication of disputed questions of fact, which this court would loath to address in the exercise of its powers under Article 226 of the Constitution of India. The petitioner's claim is that only photo-stat copy of the title-deed is being used by the respondent Bank, and that the signatures on the photo-stat copy with the Bank are forged. Contrarily the case of the Bank is that it possesses the original title-deed of the property of the petitioner and the petitioner has put his signatures on the letter creating equitable mortgage for recovery of the outstanding towards the borrower. Thus the issue in focus is grossly disputed and issue would be more appropriately addressed in regular proceedings before the statutory authority in an appeal under Section 17 of the 2002 Act. ;