Shammy Kumar v. Bank of Baroda

1. The petitioner has filed this petition seeking directions against respondent No.1-Bank to release/hand-over the attached personal belongings and household articles of the petitioner.

2. The case of the petitioner is that one original borrower i.e. Mr. Vikas Aggarwal executed a registered General Power of Attorney dated 01.03.2021, in favour of Mr. Ankush Gupta in respect of property bearing No. 274, Ground Floor, Bhera Enclave, Paschim Vihar, New Delhi (property in dispute). Mr. Vikas Aggarwal stood as a mortgager. The petitioner further states that Mr. Ankush Gupta who is registered General Power of Attorney holder, inducted and allowed the petitioner and his family to reside and take care of the property in dispute. On 14.12.2022, the Chief Metropolitan Magistrate (CMM), West-District, Tis Hazari Courts, New Delhi, on an application under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as SARFAESI Act,

2002) filed by the respondent No.1-Bank, passed an order appointing the Receiver to take possession of the secured asset/property in dispute. Pursuant to order dated 14.12.2022, passed by the learned CMM, the Receiver so appointed, issued a legal notice dated 17.12.2022 to borrower/mortgager for taking possession of the property in dispute on 06.01.2023.

3. Learned counsel appearing on behalf of the petitioner states that on 06.01.2023, the Receiver along with respondent No.1-Bank officials/8-10 persons came over to the property in dispute, asked the petitioner to come out with his family and stated to him that they are taking over the possession of the property in dispute. The household articles/belongings were also taken over by the Receiver so appointed. According to the petitioner, a panchnama with respect to those articles was also prepared.

4. It is the case of the petitioner that on 07.01.2021, the petitioner visited the respondent No.1-Bank's office and requested the return of household articles but the respondent No.1-Bank officials did not return those articles and neither did they give a satisfactory answer. On 23.01.2023, the petitioner served a legal notice. Since the same was of no avail, therefore, the petitioner has approached this court under Article 226 of the Constitution of India.

5. Learned counsel appearing on behalf of the petitioner further states that in view of the various provisions under the SARFAESI Act, 2002, the respondent No.1-Bank has no authority over the personal belongings/household articles of the person concerned, who is residing in the mortgaged property in dispute. He therefore, states that the entire action of the respondent No.1-Bank is dehors the provisions of the SARFAESI Act, 2002. He specifically places reliance on Section 31 of the SARFAESI Act, 2002.

6. Learned counsel appearing on behalf of the respondent No.1-Bank while placing reliance on his counter affidavit states that firstly, the petition itself is not maintainable in view of the availability of efficacious alternative remedy under Section 17 of the SARFAESI Act, 2002. Secondly, he states that notice under Section 13(2) of the SARFAESI Act, 2002 was duly served. According to him, the property in dispute was equitably mortgaged to the answering respondent and each article at the site would remain subject to the dues of the answering respondent by way of a general lien. According to the counter affidavit, the physical possession of the property in dispute has already been taken over on 06.01.2023 and any claim arising thereto, whether the same related to taking over the possession of the property in dispute or any belonging of any individual, will require proper adjudication and the same cannot be done in exercise of power under Article 226 of the Constitution of India. He, therefore, states that if the petitioner has any grievance, the appropriate remedy would lie under Section 17 of the SARFAESI Act,

2002.

7. Learned counsel appearing on behalf of the petitioner in rejoinder states that the remedy under Section 17 of the SARFAESI Act, 2002 would not be available to the petitioner, who is neither a borrower nor is a mortgager or even a bona fide purchaser.

8. I have heard learned counsel appearing on behalf of the parties and perused the record.

9. The Hon’ble Supreme Court in the case of United Bank of India v. Satyawati Tandon[1] held that SARFAESI Act is a complete Code by itself and any person aggrieved by the action taken under Section 13(4) of the SARFAESI Act, 2002 can avail the remedy under Section 17 of the SARFAESI Act, 2002. Paragraph Nos.42, 43 and 46 of the judgment are reproduced as under:-

“43. The High court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and financial institutions. While, dealing with the petitioner involving challenge to the action taken for recovery of the public dues etc. the High Court must keep in mind the legislations enacted by parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of dues but also envisages constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing the remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.” “46. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad [AIR 1969 SC 556], Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.”

10. A bare perusal of Section 17 of the SARFAESI Act, 2002, indicates that any person (including a borrower) aggrieved by any of the measures referred to in Section 13(4) of the SARFAESI Act, 2002 taken by the secured creditor or his authorised official under the relevant chapter may make an application along with such fees as may be prescribed to the Debt Recovery Tribunal having jurisdiction in the matter within 45 days and the date on which such measures have been taken. A bare reading of Section 17 of the SARFAESI Act, 2002 clearly indicates that the remedy under Section 17 of the SARFAESI Act, 2002, is not restricted only to the borrower. The petitioner is essentially aggrieved by the measures taken under Section 13(4) of the SARFAESI Act, 2002, and therefore, any person who is aggrieved by any measure under Section 13(4) of the SARFAESI Act, 2002, has an efficacious alternative remedy under Section 17 of the SARFAESI Act, 2002.

11. The Hon’ble Supreme Court in the case of Kanaiyalal Lalchand Sachdev & Ors. v. State of Maharashtra & Ors.[2] held that SARFAESI Act contemplates an efficacious remedy for borrower or any person affected by action under Section 13(4) of the SARFAESI Act, 2002 by providing appeal before DRT. Paragraph No.23 of the judgment has been reproduced as under:-