ANIMESH SHRIVASTAVA Vs. UNION OF INDIA

JUDGEMENT

(1.) Orders passed by the Debt Recovery Tribunal, Jabalpur (MP) (for short, ' the Tribunal') vide Annexure P/4 in O.A. No. 349 of 2015 and Annexure P/3 in S.A. No. 78 of 2016 respectively, are subjected to challenge in this writ petition, simultaneously questioning the constitutional validity of the 2016 amendment of the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016 (for short, 'Act of 2016') and the Debt Recovery Tribunal (Procedure) (Amendment) Rules, 2016 (vide Annexure P/1 and P/2) by the guarantors to a loan transaction.

(2.) The factual matrix reveals that the Petitioners herein stood as guarantors to a loan availed by the 3rd Respondent and his partners (Respondents No. 4 and 5) to an extent of Rs. 3 Crores, which was subsequently enhanced to Rs. 4.75 crores, from the Respondent-Bank on the strength of the mortgage created over the properties belonging to the Petitioners. It is pointed out that the borrowers turned to be defaulters, when the Bank proceeded with the steps under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Act, 2002 (for short, 'SARFAESI Act') by issuing notice under Section 13(2) for realisation of the amount due. This was sought to be challenged by the Petitioners by filing Writ Petition (C) No. 1472 of 2015 before this Court which came to be disposed off on 04.01.2016 relegating the Petitioners to move the Tribunal in terms of the Section 17 of SARFAESI Act. Accordingly, the Petitioners, moved the Tribunal by filing S.A. No. 78 of 2016 challenging the course and proceedings on various grounds.

(3.) In the meanwhile, the Respondent-Bank, by virtue of availability of another course of action/remedy under the statue had already moved the Tribunal by filing O.A. No. 349 of 2015. The pleadings and prayers were considered by the Tribunal and after threadbare analysis of the facts and figures and the provisions of law, the O.A. preferred by the Bank was allowed as per Annexure P/4 order dated 13.09.2019; whereas the S.A. preferred by the Petitioners came to be dismissed as per Annexure P/3. This made the Petitioners to challenge the said orders by filing this writ petition, where a challenge is raised also against the Amendment Act and the Rules (Annexure P/1 and P/2) contending that the same is ultra vires to the Constitution of India, having curtailed the rights of the litigants without any regard to the basic provisions under other relevant statues; such as the Indian Evidence Act, the Indian Stamp Act etc. and also as violative of the Constitution of India.