D.N. Patel, J. - (1.) THE present petition has been preferred by the Petitioner, challenging a notice given under Sub -section (2) of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter to be referred as "the SRFAESI Act, 2002" for the sake of brevity). The said notice is at Annexure 1 to the memo of petition dated 17th September, 2009.
(2.) LEARNED Counsel for the Petitioner submitted that the Petitioner's account has not been declared as Non Performing Assets Account. No date of Non Performing Assets Account is given in the aforesaid notice at Annexure 1 to the memo of petition. Learned Counsel for the Petitioner has relied upon a decision, rendered by this Court, as reported in Stan Commodities Pvt. Ltd. v. Punjab & Sind Bank, A.I.R. 2009 Jhr. 14, and has also submitted that the Respondents have not given any reply under Sub -section (3 -A) of Section 13 of the Act, 2002 and, therefore also, the Respondents may be directed to give reply under Sub -section (3 -A) of Section 13 of the Act, 2002. It is further submitted by the learned Counsel for the Petitioner that the Petitioner has given a reply to the show cause notice on 20th October, 2009, which is at Annexure 2 to the memo of petition. Thus, no Section can be initiated by the Respondent -Bank under Section 13 of the Act, 2002, in absence of any reply under Sub -section (3 -A) of Section 13 of the Act, 2002 and, thus, the notice dated 17th September, 2009 at Annexure 1 to the memo of petition, given under Sub -section (2) of Section 13 of the SRFAESI Act, 2002, deserves to be quashed and set aside. I have heard learned Counsel for the Respondent -Bank, who has submitted that the loans of a sizable amount; one by way of cash credit and another by way of term loan, was taken by the Petitioner from the Respondent -Bank and now the outstanding amount comes to Rs. 7,77,482/ - (Rupees seven lacs seventy -seven thousand four hundred and eighty -two only), including the interest as. on 31st March, 2010. It is further submitted by the learned Counsel for the Respondent that the notice, as required under Sub -section (2) of Section 13 of the Act, 2002, was given to the Petitioner on 17th September, 2009, which was replied on 20th October, 2009 by the Petitioner, which was received by the Respondent -Bank on 28th October, 2009 and the same was replied on 31st October, 2009. The said reply is annexed with the counter affidavit, filed by the Respondent -Bank. Thus, no question of violation of Sub -section (3 -A) of Section 13 of the Act, 2002, whatsoever, arises in the present case. It is further submitted by the learned Counsel for the Respondent -Bank that the decision, upon which the reliance has been placed, was carried in Letters Patent Appeal bearing L.P.A. No. 269 of 2008 and the effect and operation of the aforesaid judgment has been stayed by a Division Bench of this Court vide order dated 6th May, 2009. It is further submitted by the learned Counsel for the Respondent -Bank that never the Petitioner has agitated that the Petitioner's account has not been declared as a Non Performing Assets Account in the reply to the show -cause notice, but, it has been agitated that it has been wrongly declared as Non Performing Assets Account. Thus, the notice which has been given under Sub -section (2) of Section 13 of the SRFAESI Act, 2002 is absolutely true and correct and there is no need to give a date of Non -Performing Assets Account, as per the requirement of the statute. Moreover, whatever plea has been taken by the Petitioner has been considered, as required under the law under Sub -section (3 -A) of Section 13 of the Act, 2002 and, therefore, this writ petition deserves to be dismissed and the notice, given by the Canara Bank, cannot be challenged before this Court, because it has already replied on 31st October, 2009. Moreover, it is submitted by the learned Counsel for the Respondent that to be jus ibi ebi remedum, the Petitioner is not remediless. As and when further action will be taken under the SRFAESI Act, 2002, the RDDBFI Act, 1993 is having adequate provisions under Section 17 thereof to prefer an application before the Debts Recovery Tribunal and still there is a further right of appeal under Section 20 of the RDDBFI Act, 1993 to the approach the Appellate Tribunal against the decision, taken by the Debts Recovery Tribunal. Thus, the RDDBFI Act, 1993 provides adequate remedies to the present Petitioner and at a notice stage, this writ petition, which has been preferred by the Petitioner, is absolutely a premature petition and, hence, the same deserves to be dismissed, with cost.
(3.) HAVING heard learned Counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition, mainly for the following facts and reasons: (i) It appears that the present Petitioner has taken a sizable loan towards the cash credit as well as towards the term loan and looking to the notice under Sub -section (2) of Section 13 of the SRFAESI Act, 2002, a sizable amount was outstanding and, therefore, a notice was given, whereby an opportunity of being heard was given to the Petitioner that why the action should not be initiated under Sub -section (4) of Section 13 of the Act, 2002; (ii) It appears that the said notice, which is at Annexure 1 to the memo of petition dated 17th September, 2009, was replied by the Petitioner on 20th October, 2009 and, as alleged by the Respondent in its counter affidavit, it was received on 28th October, 2009 and the same was replied on 31st October, 2009. A copy of the receipt is also annexed with the counter affidavit. (iii) Learned Counsel for the petition maintains the plea that he has never received the reply, given by the Bank and there is no signature on the acknowledgement receipt of the Petitioner. (iv) Be that as it may, this is also a dispute, which requires evidences to be laid whether the Petitioner has received the reply or not, but, the fact remains that as per the allegations by the Respondent, the reply given of the show -cause notice was received by the Bank on 28th October, 2009 and the same was replied by the Respondent -Bank to the Petitioner on 31st October, 2009, which is annexed with the counter affidavit. Thus, it is a matter of dispute that whether it was received by the Petitioner or not. Nonetheless, the fact remains that there is a reply on record by the Respondent -Bank. (v) Learned Counsel for the Petitioner has relied upon a decision, rendered by this Court, as reported in, A.I.R. 2009 Jhr. 14, Stem Commodities Pvt. Ltd. v. Punjab & Sind Bank, wherein, it has been decided that over and above the statutory notice under Sub -section (2) of Section 13 of the Act, 2002, one more opportunity of being heard ought to have been given to the Petitioner, prior to the declaration of the account of the present Petitioner as a Non Performing Assets Account, but, it has been submitted by the learned Counsel for the Respondents that in L.P.A. No. 269 of 2008, operation of the aforesaid judgment and order has been stayed by a Division Bench of this Court vide order dated 6th May, 2009. Moreover, as per the provisions of the Act, 2002,; especially Section 13(2) thereof, there is no need to give a date of the Non Performing Assets Account. What is to be stated in the show cause notice is also stated under Sub -section (3) of Section 13 of the Act, 2002. (vi) Thus, looking to the aforesaid facts and the provisions of the Act, 2002, it cannot be said that merely because the date of Non Performing Assets Account is not given, the notice under Section 13(2) of the SRFAESI Act, 2002 by the Respondent -Bank deserves to be quashed and set aside. Reply has already been given by the Petitioner and that has also been replied by the Respondent -Bank on 31st October, 2009. Thus, the Respondent -Bank has to take a further decision whether it wants to go ahead under Sub -section (4) of Section 13 of the Act, 2002 or not, because there is also a para (para No. 19) in the memo of petition that the Petitioner is ready and willing to make payment of all the dues through instalments. Para No. 19 of the memo of petition is suggestive of the fact that the Petitioner wants to settle his dues with the Respondent -Bank. Learned Counsel for the Respondent -Bank is also saying that if the Petitioner makes proper offer, it will be considered, in accordance with law, rules, regulations and the policies by the Respondent -Bank. Likewise, there is also a para (para No. 31) in the counter affidavit, filed by the Respondent -Bank, that they are also ready and willing to settle the account with the present Petitioner. (vii) In view of the aforesaid facts and reasons, I am not inclined to interfere with the notice, given by the Respondent -Bank under Sub -section (2) of Section 13 of the Act, 2002. There is no illegality committed by the Respondent -Bank in giving the aforesaid notice at Annexure 1 to the memo of petition. Prima facie, there is also a due compliance of Subsection (3 -A) of the SRFAESI Act, 2002 by the Respondents. (viii) In view of the aforesaid facts, at this stage, I am not inclined to interfere with the notice at Annexure 1 to the memo of petition. If the Respondent is taking further actions under Sub -section (4) of Section 13 of the SRFAESI Act, 2002, Petitioner is not remediless, as remedies are available to the Petitioner to approach the Debts Recovery Tribunal by filing application under Section 17 of the Act, 2002 and still there is further provision of appeal under Section 20 of the RDDBFI Act, 1993. Thus, two more remedies are available to the present Petitioner. (ix) In view of the aforesaid facts also, at this stage, I am not inclined to interfere with the show -cause notice given to the present Petitioner by the Respondent -Bank. It is surprising that the Respondent -Bank has not taken any further step under Section 13 of the Act, 2002 from 1st November, 2009 onwards. Learned Counsel for the Respondent -Bank is unable to point out any reason that why the Manager of the concerned Branch of Canara Bank has not proceeded further to recover the debt of the Respondent -Canara Bank. (x) Therefore, I hereby, direct the Canara Bank, Circle Officer, Doranda, Ranchi to send a copy of this order to the Head Office at Bangalore.;