Judgment:
ORDER
SHEET WP281of 2017 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE AUROSHIKHA VINIMAY PRIVATE LIMITED Versus ALLAHABAD BANK & ORS.BEFORE: The Hon'ble JUSTICE DEBANGSU BASAK Date : 18th May, 2017.
Appearance: Mr.Jishnu Saha, Sr.Adv.Mr.K.R.Thaker, Adv.Mr.Saket Chowdhury, Adv.Mr.Avinash Kankani, Adv.Mr.Om Narayan Rai, Adv.Mr.Krishnendu Sooptu, Mr.Prantik Garai, Mr.K.Chatterjee, Mrs.M.Sarkar, Adv.Adv.Adv.Adv.The Court : The petitioner assails an order dated November 29, 2016 passed by the Debts Recovery Tribunal-I in I.A.No.716 of 2016 arising out of S.A.No.67 of 2013.
Learned Senior Advocate for the petitioner submits that, the petitioner is a guarantor of a credit facility enjoyed by the borrower from the respondent no.1.
Property owned by the petitioner was put up for sale by public auction under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 by the Authorised Officer of the respondent no.1.
immovable property concerned.
He refers to the value of the He submits that, the property was valued at Rs.3.70 crores on September 19, 2014.
It was enhanced to Rs.5.23 crores in 2015 and ultimately to Rs.6.23 crores on January 9, 2016.
He submits that, the sale notice had fixed a reserved price of Rs.3.16 crores for the property concerned and the property was surprisingly sold at Rs.3.17 crores.
He submits that, the sale of the immovable property concerned has to be seen in the context of the steps taken by the Bank and the tenant with regard thereto.
The petitioner is a landlord of the property concerned.
The property is tenanted.
The petitioner had filed a suit for eviction after issuing a notice under Section 106 of the Transfer of Property Act, 1882.
The suit for eviction has since been decreed.
An appeal is pending against such decree.
He draws the attention of the Court to the fact that, the tenant of the property who has suffered a decree for eviction on December 14, 2015 goes before the respondent no.1 to give an undertaking to vacate the property on February 4, 2016.
The undertaking of the tenant contains a statement that, such undertaking was given pursuant to discussions had between the bank and the tenant.
He submits that, the sale notice was published on February 6, 2016 immediately on the tenant giving the undertaking on February 4, 2016.
The property sold immediately thereafter at Rs.3.17 crores while the reserve price was fixed at Rs.3.16 crores.
The sale certificate and the registration of the sale certificate had happened immediately thereafter.
Referring to the impugned order dated November 29, 2016, learned Senior Advocate for the petitioner submits that, the matter was not fixed for hearing on such date.
He refers to the certified copy obtained by his clients and the cause-list for the particular day.
He refers to such certified copy and submits that, the matter was hand written and the last item in the cause-list of the Tribunal.
He refers to the internet copy of the cause-list of the Tribunal and submits that, the matter did not appear in such internet copy of the cause-list.
He refers to the contents of the impugned order and submits that, since the matter was not there in the cause-list on that particular day, the question of hearing the parties does not arise although the impugned order proceeds to record in the fiRs.paragraph that, the learned Tribunal had heard the learned Advocates for the parties.
He submits that, the Presiding Officer had allowed filing of written notes of arguments.
His clients had done so.
order records that no written notes of argument was filed.
The impugned He refers to the certified copy of the written notes of argument filed which is quite voluminous.
The Presiding Officer did not take into account such written notes of arguments.
According to him, there is a manifest collusion between the officers of the bank and the tenant concerned so as to divest the petitioners from their valuable rights.
In the event, the property is sold in an open auction, there is every likelihood of the property fetching a higher price and thereby reducing the dead burden of the petitioners as well as the principal borrower.
He submits that, the petitioners have received an offer from an outstation purchaser which is in excess of Rs.1 crore than the sale price.
He refers to the sale certificate and the documents of the registration, in respect the property and submits that, the purchaser has paid stamp duty on the property concerned at a value in excess of Rs.5 crores.
Therefore, the market value of the property would be in excess of Rs.5 crores.
Although the impugned order is appealable under Section 18 of the Act of 2002, learned Senior Advocate for the petitioner submits that, such appeal is not efficacious as the petitioner does not have the money to secure the claim of the respondent no.1 in such appeal under the provisions of the Act of 2002.
There being manifest fraud committed by the bank in connivance with other parties, he submits that, the Writ Court should intervene.
The respondent Nos.1 and 2 are represented.
Learned Advocate for the respondent Nos.1 and 2 submits that, the petitioner had applied for certified copy of the impugned order on January 3, 2017.
There are two dates of assessment in certified copy made available to Court.
The fiRs.date is January 10, 2017, which has since been scored out with a new date of March 3, 2017 put.
The concerned Presiding Officer had retired in the month of March, 2017.
He suspects that, the notes of argument was surreptitiously smuggled into the records in connivance with other parties.
The allegations made by the petitioner as to wrong recording in the impugned order ought to be agitated by the petitioner before the concerned Tribunal.
Learned Advocate appearing for the private respondents submits that, the writ petitioner has alternative statutory remedy under Section 18 of the Act of 2002.
The absence of the ability to make the pre-deposit under Section 18 of the Act, 2002 does not make such statutory remedy less effective or inefficacious for the petitioner.
He points out that, the petition does not contain any particulars of the alleged fraud although the word ‘fraud’ has been used in the writ petition.
I have considered the rival contentions of the parties and the materials made available on record.
The petitioner claims its to be a guarantor of a credit facility enjoyed by a borrower from the respondent no.1.
The respondent no.1 had initiated proceedings under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in respect of an immovable property belonging to the petitioner.
Such property was put up for sale.
The petitioner had initiated a proceeding under Section 17 of the Act of 2002 which was registered as SA No.67 of 2013 before the Debts Recovery Tribunal at Kolkata.
In such proceeding the petitioner had applied for diveRs.reliefs.
By the impugned order, the proceeding under Section 17 of the Act of 2002 was dismissed.
The order dated November 29, 2016 of the Debts Recovery Tribunal-I passed in SA No.67 of 2013 is appealable under Section 18 of the Act of 2002.
The petitioner contends that, the statutory alternative remedy of appeal is not available to the petitioner, in view of the inability of the petitioner to comply with the pre-conditions to prefer an appeal laid down under Section 18 of the Act of 2002.
It is well settled that, inability to comply with a pre-condition to prefer an appeal does not make the remedy available to such party ineffective or inefficacious.
The petitioner, therefore, cannot be allowed to contend that, by reason of its inability to fulfill the conditions precedent to prefer an appeal under Section 18, it can approach the Writ Court.
Section 18 of the Act of 2002 amongst other requires an appeal to be filed within 30 days from the date of the order.
Section 5 of the Limitation Act, 1963 has been held to be applicable to an appeal under Section 18 of the Act of 2002.
In the present case, it appears from the certified copy made available to the Court that, though the petitioner had applied for the certified copy of the impugned order dated November 29, 2016 on January 3, 2017 and had received the delivery of the certified copy on March 3, 2017, it did not prefer an appeal.
A period in excess of 30 days has elapsed from the date of impugned order dated November 29, 2016.
Moreover, the impugned order records the appearance of the learned Advocate appearing for the petitioner on that date.
There is a dispute that, the matter was not posted on such date.
However, the certified copy of the cause list made available to Court shows that, the matter was posted on that date.
The petitioner contends that, the recording of the appearance of the learned Advocate for the petitioner and that, the Tribunal had heard the parties on November 29, 2016 are incorrectly recorded.
It is settled law that, the party who complains of wrong recording in the order should approach the forum which has passed the order as expeditiously as possible in order to have rectification of the error, if there be any.
In the present case, the petitioner was aware of the order dated November 29, 2016 at least on January 3, 2017 and if not then at least on March 3, 2017.
The petitioner has not taken any steps for the purpose of rectification of the so called errors appearing in the order dated November 29, 2016.
Considering the fact that, the petitioner has statutory alternative remedy available under Section 18 of the Act of 2002, I am not minded to interfere with the present writ petition.
WP No.281 of 2017 is dismissed.
No order as to costs.
(DEBANGSU BASAK, J.) snn/sp2