RAJ KUMAR KHEMKA Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE Writ Petitions have been preferred by the borrower/guarantor, raising common question of law, pursuant to common proceedings pending before the Debts Recovery Tribunal (for short, 'the DRT') -I, Chennai. Therefore, they were heard together and decided by this common order.

(2.) THE borrower in these cases is M/s.NEPC Agro Foods Limited (writ petitioner in W.P.No23660 of 2008). THE lender is M/s.Janata Sahakari Bank Limited (first respondent in W.P.No.23660 of 2008 and second respondent in W.P.No.9930 of 2008) (for short, 'the Co -operative Bank'), which is registered under the provisions of the Maharashtra Co -operative Societies Act. THE petitioner -Raj Kumar Khemka (in W.P.No.9930 of 2008) is the guarantor. THE respondent -Co -operative Bank, having given certain credit facilities to the borrower, it initiated proceedings against the borrower before the Co -operative Court No.I, Mumbai and the dispute came to be dismissed by order dated 1.3.2006. Against the said order dated 1.3.2006, the respondent -Co -operative Bank filed an appeal before the Co -operative Appellate Tribunal, which allowed the case, by order dated 18.9.2006 and remitted the matter for fresh trial to the Co -operative Court No.I.

(3.) AT this stage, one of the guarantors, namely Raj Kumar Khemka filed Writ Petition No.9930 of 2008 before this Court, forbearing the respondent -Co -operative Bank from exercising the powers under the SARFAESI Act, insofar as the loan account of the borrower -M/s.NEPC Agro Goods is concerned. Initially, no interim order was passed and on 30.9.2008, when the Writ Petition was being heard, this Court passed the following interim order:"During the pendency of W.P.No.9930 of 2008, the respondents may auction -sale the mortgaged property(ies) (secured asset(s)), but will not confirm the sale, nor take possession of the same, if not yet taken, without prior permission of the Court. ".