MAPLE SOLUTIONS LTD Vs. BANK OF INDIA

JUDGEMENT

(1.) THE petitioner seeks to invoke the jurisdiction of this Court under Article 226 of the Constitution of India essentially to challenge the sale of the subject property (mortgaged property) through auction held by the first respondent bank on 20.09.2012 in favour of the second respondent (auction purchaser), in the wake of proceedings earlier taken out under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the SARFAESI Act"). The petitioner prays for the issuance of writ in the nature of certiorari quashing the order dated 03.09.2013 of Delhi Debts Recovery Appellate Tribunal (hereinafter referred to as "the DRAT"), and the auction sale dated 20.09.2012, mandamus to direct the first respondent to hold a fresh auction in accordance with the statute and not to alienate or create third -party interest in the subject property.

(2.) THE petitioner had earlier brought a similar challenge on identical facts and circumstances against the order dated 03.09.2013 of DRAT before the High Court of judicature at Allahabad. It appears that the said writ petition was initially entertained but eventually dismissed for want of territorial jurisdiction mainly for the reasons that the proceedings under SARFAESI Act leading to the impugned action were conducted by the respondent bank at New Delhi, the action was challenged before the Debts Recovery Tribunal (hereinafter referred to as "the DRT") at New Delhi and the order of DRT was also subject matter of an appeal decided by DRAT at New Delhi, these facts indicating that the cause of action for bringing the writ petition had arisen within the jurisdiction of Delhi, rather than the State of Uttar Pradesh.

(3.) THE dispute raised in the writ petition arises out of factual matrix that is not very complicated. Briefly stated, the background facts are that the petitioner company had taken from the respondent bank by agreement dated 16.08.2007 certain financial assistance. The case involves property described in the sale notice (Annexure P4) as industrial leasehold and building situated at B -31, Sector -5, Phase -1, Noida 201301, U.P., land area admeasuring 576 sq.mtr. as given in notice for sale, with 3 storied building, in the name of M/s OGIG Fabs Pvt. Ltd. (Now Name changed to M/s Maple e Solutions Ltd.), bounded on the North by 18 mtr. wide Road, on the South by property No. B -32, on the East by property No. B -30 and on the West by 18 mtr. wide road, along with all office equipments, furniture and fixture items, computers, computer monitors, and other misc. items such as D.G. Set etc., (hereinafter referred to as "the subject property"). It was offered by the petitioner, and accepted by the respondent bank, as mortgage to secure the interest of the creditor. Concededly, on account of nonpayment of the dues under the agreement, the respondent bank declared the loan account as a Non -Performing Asset (NPA) and served a notice under Section 13(2) of SARFAESI Act dated 30.11.2009 to such effect on the petitioner company (borrower/mortgagor). Further, it is an admitted case of the petitioner that the respondent bank took actual physical possession of the mortgaged property on 29.01.2011 in terms of Section 13(4) of SARFAESI Act, taking recourse to one of the permitted measures in order to recover the secured debt. The petitioner challenged the said action by way of Securitization Application (SA) under Section 17 of SARFAESI Act before the DRT. It may be added that the said challenge remained unsuccessful as the Securitization Application registered by DRT as SA No. 22/11 was dismissed by DRT.