Shubham Electronics Vs. Axis Bank Ltd. and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1061102
CourtKolkata High Court
Decided OnJun-05-2012
JudgeI. P. MUKERJI
AppellantShubham Electronics
RespondentAxis Bank Ltd. and ors.
Excerpt:
order sheet ga no.733 of 2012 cs no.104 of 2012 in the high court at calcutta ordinary original civil jurisdiction original side shubham electronics versus axis bank ltd.& ors.before: the hon'ble justice i.p.mukerj.date :5. h june, 2012. appearance: mr.utpal bose, advocate mr.satarup banerjee, advocate for the petitioner mr.ajoy chatterjee, sr.advocate mr.s.ghosh, advocate mr.a.k.de, advocate for the respondent no.1 the court: the plaintiff is a borrower of the firs.defendant bank. they are aggrieved by the letter of the bank dated 19th december, 2011, stating, inter alia, that if the plaintiff’s outstanding with the bank was not brought down to rs.610 lakhs, the bank would be forced to classify their account as a non-performing asset. learned counsel for the plaintiff submits that from time to time the bank had given assurance to them of their cooperation. furthermore, substantial sums have been repaid after issuance of the said letter. however, i find that on 14th march, 2012, the bank issued a notice under section 13(2) of the securitisation and reconstruction of financial assets and enforcement of security interest act, 2002, (sarfaesi).mr.chatterjee, learned senior advocate for the bank tells me that action under section 13(4) of the act has also commenced. the prayers in this application are for restraint orders upon the bank not to take coercive steps against the plaintiff, arising out of their “cash credit”. account with the bank. mr.bose, learned advocate for the plaintiff, seeks an order from this court which could help them to get “breathing time”. to repay the loan of the defendant bank. i have gone through the reliefs claimed in the suit as well as the orders prayed for in this application. the reliefs claimed in the suit seek a declaration that the plaintiff is entitled to a renewal of their cash credit facility with the defendant bank. the orders claimed in this application seek orders against the bank restraining them from taking any coercive steps. firs.of all, the bank has started proceedings under the sarfaesi act. section 17 of this act provides that any person aggrieved by any measure taken under section 13(4) of the act may approach the debts recovery tribunal. section 34 bars a civil court from taking cognizance of any matter under the act. in my opinion, once the bank took action under section 13(2) of the sarfaesi act it was squarely open to the plaintiff to challenge this measure before the debts recovery tribunal contending that they were entitled to renewal of the credit facility and hence the bank was obliged to provide more credit. therefore, it could not take any coercive steps under the said section. in that view of the matter, the subject matter of the suit and the application cannot be adjudicated upon by this court. there is a clear prohibition in the statute. therefore, there is no merit in this application. the application has to be dismissed. i cannot straightway dismiss the suit also because the plaint is not before me. the application is dismissed. however, no order as to costs. all parties concerned are to act on a signed photocopy of this order upon the usual undertakings. g/ (i.p.mukerji, j.)
Judgment:

ORDER

SHEET GA No.733 of 2012 CS No.104 of 2012 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE SHUBHAM ELECTRONICS Versus AXIS BANK LTD.& ORS.BEFORE: The Hon'ble JUSTICE I.P.MUKERJ.Date :

5. h June, 2012.

Appearance: Mr.Utpal Bose, Advocate Mr.Satarup Banerjee, Advocate for the petitioner Mr.Ajoy Chatterjee, Sr.Advocate Mr.S.Ghosh, Advocate Mr.A.K.De, Advocate for the respondent No.1 The Court: The plaintiff is a borrower of the fiRs.defendant bank.

They are aggrieved by the letter of the bank dated 19th December, 2011, stating, inter alia, that if the plaintiff’s outstanding with the bank was not brought down to Rs.610 lakhs, the bank would be forced to classify their account as a non-performing asset.

Learned Counsel for the plaintiff submits that from time to time the bank had given assurance to them of their cooperation.

Furthermore, substantial sums have been repaid after issuance of the said letter.

However, I find that on 14th March, 2012, the bank issued a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (SARFAESI).Mr.Chatterjee, learned Senior Advocate for the bank tells me that action under Section 13(4) of the Act has also commenced.

The prayers in this application are for restraint orders upon the bank not to take coercive steps against the plaintiff, arising out of their “cash credit”.

account with the bank.

Mr.Bose, learned Advocate for the plaintiff, seeks an order from this Court which could help them to get “breathing time”.

to repay the loan of the defendant bank.

I have gone through the reliefs claimed in the suit as well as the orders prayed for in this application.

The reliefs claimed in the suit seek a declaration that the plaintiff is entitled to a renewal of their cash credit facility with the defendant bank.

The orders claimed in this application seek orders against the bank restraining them from taking any coercive steps.

FiRs.of all, the bank has started proceedings under the SARFAESI Act.

Section 17 of this Act provides that any person aggrieved by any measure taken under Section 13(4) of the Act may approach the Debts Recovery Tribunal.

Section 34 bars a Civil Court from taking cognizance of any matter under the Act.

In my opinion, once the bank took action under Section 13(2) of the SARFAESI Act it was squarely open to the plaintiff to challenge this measure before the Debts Recovery Tribunal contending that they were entitled to renewal of the credit facility and hence the bank was obliged to provide more credit.

Therefore, it could not take any coercive steps under the said section.

In that view of the matter, the subject matter of the suit and the application cannot be adjudicated upon by this Court.

There is a clear prohibition in the statute.

Therefore, there is no merit in this application.

The application has to be dismissed.

I cannot straightway dismiss the suit also because the plaint is not before me.

The application is dismissed.

However, no order as to costs.

All parties concerned are to act on a signed photocopy of this order upon the usual undertakings.

G/ (I.P.MUKERJI, J.)