JAGDISH AND COMPANY Vs. IDBI BANK

JUDGEMENT

(1.) This petition filed under Article 226 of the Constitution assails the notice dated 18.02.2015 (Annexure P/1) with the further prayer that petitioner be not dispossessed from the premises in question.

(2.) Shri Bhagwat, learned counsel for the petitioner submits that petitioner is a proprietorship firm who availed cash/credit loan facilities to the tune of Rs. Two Crore from the respondent No.2 in the year 2008. The petitioner No.2 is the guarantor to the said loan. The said loan was taken from the branch of respondent No.2 Bank. The petitioner is involved into business of trading cotton bales and raw cotton. The loan was availed for the said business. In the year 2012 - 2013, the petitioner No.1 suffered huge losses due to heavy recession and therefore his account became irregular. It is urged that despite all efforts the account could not be regularized and loan could not be paid in time. The respondent bank on 4.12.2014 issued a 60 days statutory notice under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "SARFAESAI Act"). The petitioner after receiving the said notice dated 4.12.2014 (Annexure P/2) submitted a reply through his counsel on 25.01.2015 (Annexure P/3). The petitioner gave a proposal to the Bank for repayment through said reply. It is urged that the respondents have not taken any decision on the said reply which is bad in law.

(3.) Shri Bhagwat advanced three fold submissions. Firstly, it is urged that non acceptance of proposal (Annexure P/3) is bad in law and runs contrary to Section 13(3A) of SARFAESAI Act. Secondly, it is contended that after issuance of notice (Annexure P/2) and even after issuing notice dated 18.2.2015 (Annexure P/1), the petitioner has repaid certain loan amount which was accepted by the respondents. This shows that a new contract came into being. Reliance is placed on Section 62 of the Contract Act. Thirdly, Shri Bhagwat relied on Rule 8 (1) & (2) of the Security Interest (Enforcement) Rules, 2002, to contend that before issuing the impugned notice (Annexure P/1), the aforesaid Rules were not followed. To elaborate, it is contended that if Section 13 (3A) of SARFAESAI Act and Rule 8 (1) & (2) provide to do a thing in a particular manner, it has to be done in the same manner or not at all. He relied on a judgment of Calcutta High Court passed in W.P.No.13388(W) of 2014, Ali Hossain vs. Paschimbanga Gramin Bank & Ors. In the alternatively, Shri Bhagwat contended that if this Court comes to the conclusion that petitioners have an alternative remedy before the Tribunal, four weeks' time be granted to him to avail the said remedy.