WP(C)/7330/2021 of M/S LUHIT COMMERCIALS AND 4 ORS. Vs PUNJAB NATIONAL BANK, ZONAL OFFICE AND 3 ORS. on 29 December 2021

ORDER

Heard Mrs. D. Buragohain, learned counsel for the petitioners. Also heard Mr. A. Ganguly, learned counsel for the respondents.

2. Aggrieved by the issuance of possession notice under Section 13(4) ofthe SARFAESI Act, the petitioners have filed this writ petition under Article 226of the Constitution of India.

3. The learned counsel for the petitioner has pressed all the points whichhave been raised in the writ petition. It is submitted that the classification of theaccount as NPA is contrary to the master circular of the bank dated 01.07.2014(Annexure-8). It is also submitted that the outstanding balance had exceededcash credit limit on account of booking of interest for the moratorium period. Itis also submitted that the interest was wrongly calculated on the account. It isfurther submitted by referring to bank’s letter dated 13.12.2016 (Annexure-7)by which pursuant to directions issued by the Banking Ombudsman dated12.11.2016, the petitioner no.5 was informed that he was not a guarantor to thecredit facilities enjoyed by the petitioner no1. However, as his deceased fatherwas a guarantor and a mortgager of properties in connection with the creditfacilities availed by petitioner no.1, his status would that be of a sharedmortgager, a position which has been accepted by the petitioner vide affidavitdated 25.11.2011. In this context, it is submitted that the respondents havetaken symbolic possession of the mortgage property on 23.12.2021 and it isapprehended that the respondents may issue newspaper advertisement andproject the petitioner no.5 as a guarantor. It is submitted that the petitionershave already written to the bank to remove the status of petitioner no.5 as aguarantor. Accordingly, the status of the petitioner no.5 as a guarantor has beenremoved. The grievance of the petitioners is that the petitioner no.4 has alsorepresented before the respondents to treat him similar to the status providedto the petitioner no.5 and in this regard, reference is made to e-mail dated22.10.2020 (Annexure-7) and reminder by email dated 31.03.2021.

4. Having heard the learned counsel for the petitioners as well as thelearned counsel for the respondents, the Court is of the opinion that disputedquestions of facts have been raised in this writ petition. Therefore, as the respondents have already taken steps under Section 13(4) of the SARFAESI Act,the said Act under Section 17 prescribes an alternative statutory remedy of filingan appeal. Hence, the Court is of the considered opinion that the petitioners berelegated to avail the statutory appellate remedy as provided under Section 17of the SARFAESI Act before the Debts Recovery Tribunal, Guwahati.

5. At this stage, the learned counsel for the petitioners has submittedthat at present there is no Presiding Officer of Debts Recovery Tribunal,Guwahati. In this context, it may be mentioned that the Presiding Officer of theDebts Recovery Tribunal-2, Kolkata has been given the additional charge ofPresiding Officer of Debts Recovery Tribunal, Guwahati and the Court isinformed that on the days when the Presiding Officer is not available inGuwahati, urgent matters are taken up by way of video conferencing.

6. Accordingly, the Court is inclined to provide that the petitioner wouldbe at liberty to file a statutory appeal under Section 17 of the SARFAESI Act, ifso advised and the petitioners would also be at liberty to move an urgentapplication so that the matter can be taken up by the Presiding Officer, DebtsRecovery Tribunal, Guwahati by video conferencing. Accordingly, it is providedthat in the event, the petitioners apply before the Debts Recovery Tribunal,Guwahati to have the matter and/ or prayer for interim relief taken up urgentlyby video conferencing, accompanied with a certified copy of this order, theDebts Recovery Tribunal, Guwahati shall entertain the said application and takeup the matter urgently through video conferencing mode.

7. However, having regard to the letter dated 13.12.2016 (Annexure-7)issued by the Chief Manager, United Bank of India, Noonmati Branch, therespondents are directed to take note of the contents thereof. At this stage, the Court takes note of the submissions made by the learned counsel for therespondents that after having taken over the mortgage properties, the bank hasalready issued an advertisement of taking over symbolic possession in twonewspapers i.e. the Times of India and the Dainik Asom of today, i.e.29.12.2021. Accordingly, it is provided that the respondents would issue acorrigendum to clarify the status of the petitioner no.5, Mr. Paanchal PulinBuragohain as a shared mortgager instead of guarantor. The respondents arealso at liberty to consider the representation made by the petitioner no.4 foraltering his status from guarantor to joint mortgager and to inform thepetitioner no.4 of the decision preferably within a period of 10 (ten) days fromthe date of receipt of certified copy of this order.

8. As the matter is not adjudicated on merit, it would be open to thepetitioners to take any ground as they may be so advised before the DebtsRecovery Tribunal, Guwahati.

9. Accordingly, this writ petition stands disposed of in the motion stagewithout issuing notice on the respondents.

JUDGE

JUDGE