ORDER
SHEET GA NO.5 OF2014WITH CS NO.457 OF2013IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE MANGLAM FISCAL SERVICES PVT.LTD.Versus STATE BANK OF INDIA & ORS.………… BEFORE: The Hon'ble JUSTICE I.P.MUKERJ.Date : 24th March, 2014.
Mr.S.N.
Mitra, senior advocate, Mr.A.Mukherjee, Mr.S.Banerjee, Ms.S.Sinha…appear.
Mr.K.Bhattacharya…appeaRs.The Court : Mr.S.N.Mitra, learned senior advocate cited Standard Chartered Bank vs.V.Noble Kumar And Others with Criminal Appeal No.1217 of 2013 Senior Manager, State Bank of India And Another vs.R.Shiva Subramaniyan And Another; reported in [2013].9 SCC620 He relied on paragraph 28, which is inserted below.
“It can be noticed from the language of the proviso to Section 13[3-A].and the language of section 17 that an ‘appeal’ under Section 17 is available to the borrower only after losing possession of the secured asset.
The employment of the words ‘aggrieved by… taken by the secured creditor’ [emphasis supplied].in Section 17[1].clearly indicates the appeal under Section 17 is available to the borrower only after losing possession of the property.
To set at naught any doubt regarding the interpretation of Section 17, the proviso to sub-section [3-A].of Section 13 makes it explicitly clear that either the reasons indicated for rejection of the objections of the borrower or the likely action of the secured creditor shall not confer any right under Section 17.” He submitted that since an appeal lay only after a measure was taken under Section 13[4].a litigant cannot be left without remedy before that measure was taken.
On the other hand, learned counsel for the Bank cited Jagdish Singh versus Heeralal and Ors.; reported in 2013[13].SCALE359to submit that the action of the Bank was unasailable under any circumstances in a civil Court.
He also submitted that the plaintiff had suppressed certain facts, specially those relating to the possession notice, its challenge before the Debts Recovery Tribunal, by the plaintiff/petitioner.
The Bank has brought its affidavit in opposition ready to Court.
Leave is given to learned counsel to file the same.
The interim order was passed on 27th January, 2014.
Till date no application has been made by the Bank to set aside the interim order.
Moreover, the above question of law has to be gone into.
List this application for hearing fairly at the top of the Adjourned Motion on 2nd April, 2014.
Affidavit in Reply, if any, may be filed in the mean time.
The existing interim order is to continue till 16th April, 2014 or until further ordeRs.whichever is earlier.
Certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(I.
Pkd.
A.R.[C.R.].P.MUKERJI, J.)