RAMDAS AGRAWAL Vs. COLLECTOR DISTRICT MAGISTRATE

JUDGEMENT

(1.) Challenge in this petition is to the order dated 31-3-2010 (Annexure P/ 6) passed by the Respondent No. 1, i.e. Collector (District Magistrate), Durg, in Case No. 22/B-121/2009-2010, in exercise of its power under the provisions of Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the SARFAESI Act, 2002').

(2.) The indisputable facts, relevant for adjudication of the case is that the Petitioner obtained a financial assistance to the tune of Rs. 2.35 crores in the shape of cash -credit limits from the Respondent No. 2 Bank. A demand notice under Section 13(2) of the SARFAESI Act, 2002 was issued on 5-2-2008 (Annexure P/l) for recovery of a sum of Rs. 2,49,33,035.52 p. Symbolic possession of the mortgaged three properties namely, factory, land and building including plant and machinery, open land attached to the factory and residential house at Bhilai, was taken. The Petitioner, being aggrieved, preferred a writ petition being W. P. (C) No. 2425/2009, questioning the legality and validity of the order dated 22-4-2008 passed under the provisions of Section 13(4) of the SARFAESI Act, 2002. The said petition was dismissed on 9-7-2009 (Annexure R/2-1) holding that the writ petition was not maintainable on account of availability of statutory alternative remedy under the provisions of Section 17 of the SARFAESI Act, 2002, granting liberty to the Petitioner to avail the alternative statutory remedy under the provisions of SARFAESI Act, 2002. Thereafter, the Petitioner preferred an appeal being Second Appeal No. 101/2009 before the Debt Recovery Tribunal (for short 'the DRT) at Jabalpur. Along with memo of appeal, an application for interim relief was also filed for restraining the Respondent Bank from taking possession of the residential house and removal of the seal on the part of the house already taken possession and further restoration of possession of the same. (Annexure R/2-2). The learned Tribunal, after having heard all the concerned parties, dismissed the application for interim relief on 17-7-2009 (Annexure R/2-2). Thereafter, according to learned Counsel for the Respondent-Bank, the Petitioner preferred a Writ Petition No. 7217/ 2009 in the High Court of Madhya Pradesh at Jabalpur, challenging the order dated 17-7-2009 passed by the DRT, Jabalpur. Indisputably, the said writ petition was also dismissed by the learned Division Bench reserving liberty to the Petitioner to avail alternative remedy under the provisions of Section 18 of the SARFAESI Act, 2002 with a further direction that for a period of one week, status quo as obtained on that date, would be maintained in respect of the Petitioner's residential house. It is not clear as to whether any appeal under 18 of the SARFAESI Act, 2002 was preferred or not on account of rejection of interim application by the DRT on 17-7-2009 and subsequently, dismissal of the writ petition by the High Court of Madhya Pradesh in W. P. No. 7217/2009 on 27-7-2009 (Annexure A/1). The Respondent Bank preferred an application under Section 14 of the SARFAESI Act, 2002 to the District Magistrate, Durg on 6-10-2009 (Annexure P/3). The District Magistrate, after having afford an opportunity of hearing and considering the objection of the Petitioner, passed the order for handing over the possession of the residence situated at plot No. 11-A, Khursipar, Bhilai, to the Respondent-Bank. Thus, this petition.

(3.) Ms. Sharmila Singhai, learned Counsel appearing for the Petitioner submits that the District Magistrate could not have passed the order in hurry without affording an opportunity of hearing to the Petitioner. Ms. Singhai further submits that on 8-3-2001, the Petitioner made an application through his agent for adjourning the matter. The same was not considered and the final order was passed. Thus, the impugned order is vitiated.