Writ application against the order under Section 14 of SERFESAI Act 2002

 

DISTRICT : SOUTH 24 PARAGANAS.

IN THE HIGH COURT AT CALCATTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

 

W.P.A NO.                      OF 2022

 

In the matter of:

An application under Article 226 of the Constitution of India;

 

-And –

 

In the matter of:

Aniruddha Guha Roy, Son of Late Bimal Ranjan Guha Roy, aged about 59 years, residing at 11/C, West Row, Circus Avenue S.O., Kolkata – 700017, Police Station Karaya, District – South 24 Parganas, West Bengal, Mobile Number : 9830055527.

                             .........Petitioner

 

-Versus-

 

1.   The State of West Bengal, service through the Principal Secretary, Department of Finance, Nabanna, 325, Sarat Chatterjee Road, Howrah - 711102.

2.   The Regional Director, Reserve Bank of India, having its office at premises being no. 15, Netaji Subhas Rd, Fairley Place, B.B.D. Bagh, Kolkata, West Bengal 700001.

 

3.   The District Magistrate, South 24 Parganas, Office of the District Magistrate, South 24 Parganas, New Treasury Building (7th Floor), PO: Alipore, South 24 Parganas PIN-700027.

 

4.   Sri Sadhan Debnath, WBCS (Executive), Deputy Magistrate & Deputy Collector, South 24 Parganas, having his Office at New Administrative Building, Alipore, Kolkata – 700027, District – South 24 Parganas.

 

5.   The Commissioner of Police, Kolkata Police, Office of the Commissioner of Kolkata Police, Kolkata Police Head Quarter, 18, Lal Bazar Street, Kolkata – 700001.

 

6.   The Officer in Charge of Police, Karaya Police Station, 52, Karaya Rd, Lower Range, Beck Bagan, Ballygunge, Kolkata, West Bengal 700019.

                             ____Respondents

 

7.   The Authorized Officer, Kotak Mahindra Bank, Apeejay House, Park Street, Kolkata, having its office at Branch Office at 5^th Floor, Apeejay House, Block – B, 15, Park Street, Kolkata – 700016.

 

8.   Kotak Mahindra Bank Limited, having its Registered Office at premises being no. 27 BKC, C27 G Block Bandrakurla Complex, Bandra (East), Mumbai – 400051.

             .........Private Respondents

 

To

The Hon’ble Prakash Shrivastava, Chief Justice and His Companion Justices of the Said Hon’ble Court.

The Humble petition of the petitioner above named –

 

Most Respectfully Sheweth:-

 

1. That the Petitioner is a Citizen of India, and has been residing at the address given in the cause title of this application.

 

 

 

2. That the Petitioner is one of the Directors of the Company namely M/s. Guha Roy Joint and Hotel Private Limited, to run the business of the Company, it required some financial assistance for which an application was made before the Private Respondents. After scrutinizing the papers and the documents, the Private Respondents, granted Loan to the tune of Rs. 2,73,00,000/- ( Rupees Two Crore and Seventy Three Lakhs ) only, vide Sanctioned Letter dated 05-02-2019, against Loan Account no. LAP-17999770. The said Loan together with interest was supposed to be repaid in 120 installments through Equated Monthly Installment at the rate of Rs. 3,57,755/- . The Petitioner had been making payment of the said EMI up-to January 2020. Subsequently the dreadly COVID 19 Pandemic emerged. The entire World including our Nation had to pass through Lock Down. Such Lock Down Continued Up-to August 2020. The Central Government introduced the Scheme of Moratorium to ease the burden of the Debtors. The Petitioner had to mortgage the following immovable properties, standing in the names of the petitioner and his wife:-

 

Property 1:

ALL that piece and parcel of the immovable property being Flat No. 3A, 3rd Floor, North side having Built up area of 475 Sq. ft. more or less comprising of 1 bed room, 1 living cum dinning space, 1 toilet, 1 kitchen, 1 verandah in the northern side in the five storied building constructed on the piece and parcel of land having an area 5 cottah 13 chhitacks more or less situated and lying at and being the premises no. 43, Ustad Enayat Khan Sarani ( Formerly No. 43, Karaya Road ), Kolkata – 700 017, Police Station Karaya, Additional Sub Registration Office Sealdah, in the district of South 24 Parganas under Ward no. 64 of the Kolkata Municipal Corporation together with 173 sq. ft. more or less undivided share or interest in the land at the property bounded as :

North : By Balu Hawkkak lane

South : By Karaya Road now known as Ustad Enayat Khan Sarani,

East : By West Row

West : By Premises no. 43/1, Karaya Road.

 

Property 2 :

All that piece and parcel of the immovable property being Flat No. 2C on the Second Floor in the South – Eastern Side having super built area of 1000 (one thousand) sq. ft. more or less, comprising of 2 bed rooms, 1 living-dinning room, 2 toilets, 1 verandah in eastern Side and 1 small verandah in southern side, 1 servants room having super built up are of 40 sq. ft. more or less in the Southern Western Side in the Ground floor along with 1 car parking space in the Ground floor in the G+4 storied building constructed on the piece and parcel of land having an area of 5 Cottahas 13 Chhitacks more or less, situated lying at and being the Premises No. 43, Ustad Enayat Khan Avenue ( Formerly No. 43, Karaya Road ), Kolkata – 700017, Police Station – Karaya, Additional District Sub Registration Office Sealdah, in the district of South 24 Parganas, under Ward no. 64 of the Kolkata Municipal Corporation together with undivided share or interest in the land at the said premises attributable to the said Flat, said servant’s room, and car parking space also together right of use of all common parts/ portion in the said building. Property bounded as :

North : By Balu Hawkkak lane

South : By Karaya Road now known as Ustad Enayat Khan Sarani,

East : By West Row

West : By Premises no. 43/1, Karaya Road.

 

Property – 3 :

All that piece and parcel of the immovable property being Flat on the Fourth Floor, South Eastern Side having built up area of 1100 sq. ft ( Super built up area of 1250 sq. ft. ) more or less comprising of 3 bed rooms, 1 Drawing room, 1 kitchen, 1 toilet and 1 Verandah, and car parking space having 100 sq. ft. more or less in the ground floor in the G + 4 storied building constructed on the piece and parcel of land having an area 5 Cottahas 13 Chhitacks more or less, situated lying at and being the premises no. 43, ustad enayat khan avenue ( formerly No. 43, Karaya Road ) Kolkata – 700017, Police Station – Karaya, Additional District Sub Registration Office Sealdah, in the district of South 24 Parganas, under Ward no. 64 of the Kolkata Municipal Corporation together with undivided 400 sq. ft. proportionate share or interest in the land at the said premises attributable to the said flat and car parking space also together right of use of all common parts/ portion in the said building. Property bounded as :

North : By Balu Hawkkak lane

South : By Karaya Road now known as Ustad Enayat Khan Sarani,

East : By West Row

West : By Premises no. 43/1, Karaya Road.

 

Property – 4 :

All that piece and parcel of the immovable property being Flat no. TA on the top floor i.e. on terrace on the northern side having Super built up area of 280 sq. feet more or less. In the G+4 storied building constructed on the piece and parcel of land having an area of 5 cottahas 13 Chhitacks more or less, situated lying at and being the premises no. 43, ustad enayat khan avenue ( formerly No. 43, Karaya Road ) Kolkata – 700017, Police Station – Karaya, Additional District Sub Registration Office Sealdah, in the district of South 24 Parganas, under Ward no. 64 of the Kolkata Municipal Corporation together with undivided share or interest in the land at the said premises attributable to the said flat and car parking space also together right of use of all common parts/ portion in the said building. Property bounded as :

North : By Balu Hawkkak lane

South : By Karaya Road now known as Ustad Enayat Khan Sarani,

East : By West Row

West : By Premises no. 43/1, Karaya Road.

 

Property – 5 :

All that piece and parcel of 2 cottahas of land more or less lying at Mouza Barakhola, Touzi no. 159, 169, 206, 210, RS no. 40, JL no. 21, under part of RS Dag no. 163, RS Khatian no. 154, 162, 170, together with tile shed structures comprising an area of 250 sq. ft. more or less, standing thereon or on part thereof being premises no. 2312, Nayabad, ( Postal No. 225, Barakhola, Kolkata , Police Station – Kasba, Additional District Sub Registration Office Sealdah, in the District of South 24 Parganas, under Ward no. 109 of Kolkata Municipal Corporation, together with all easement rights over and in respect of 20 ft. wide Kolkata municipal corporation road adjacent to the said premises and also together with all benefits of sanctioned building plan no. 314/XII/2000-2001 dated 23-11-2000, as granted by the Kolkata Municipal Corporation also together with the rights to make construction of the two storied residential building on the said plot of land. Property bounded as :

North : By 20 ft wide CMC Road

South : By Plot no. 103

East : By Plot no. 97

West : By 20 ft wide CMC Road

 

Photostat copy of Sanctioned Letter is annexed herewith and marked as Annexure “P-1”

 

3. That the Private Respondents surprisingly by Letter dated 27-11-2020, had sent the recovery notice to the Petitioner and asked him to pay the outstanding of Rs. 2,81,76,952.98 ( Rupees Two Crore Eighty One Lakhs and Seventy Six Thousand and Nine Hundred Fifty Two and Paise Ninety Eight ) only. The Private Respondent further categorized the Loan Account of the Petitioner, as Non-Performing Assets (NPA), on 01-07-2020. It clearly says that the Private Respondents did not appreciate the practical situation prevailed during the Lockdown.

 

Photostat copy of Recovery Notice is annexed herewith and marked as Annexure “P-2”

 

4. That the Reserve Bank of India through notifications introduced the scheme of moratorium from March 2020 to August 2020. That the Private Respondent declared the Loan Account of the Petitioner as NPA on 01-07-2020. Therefore the Private Respondents violated the directives of Reserve Bank of India.

 

Photostat copy of RBI notification is annexed herewith and marked as Annexure “P-3”

 

5. That the Private Respondents on 16-12-2020, issued a Notice under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act 2002, asking the Petitioner to make payment of Rs. 2,74,66,104.48. Subsequently such notice under Section 13(4) of the said Act was pasted in the Door of the Petitioner’s house.

 

Photostat copy of notice under Section 13(4) of the Act is annexed herewith and marked as Annexure “P-4”

 

6. That the Private Respondents by a letter dated 19-02-2021, issued Demand cum Recall Notice for the Loan account No. LAP17999770, stating inter alia that the account has been classified as a Default Account, and thereby called for payment as of Rs. 2,89,84,618.30 ( Rupees Two Crore Eighty Nine Lakhs Eighty Four Thousand Six Hundred Eighteen and Paise Thirty Only ) due and payable as on 19-02-2021, together with further interest and other charges thereon at the contractual rates from 20-02-2021, until it’s full and final payment / realization, and thereby proposing to exercise their rights as may be available including under Arbitration & Conciliation Act’ 1996.

 

Photostat copy of Letter dated 19-02-2021, is annexed herewith and marked as Annexure “P-5”

 

7. That the Petitioner preferred an application under Section 9 of the Arbitration and Conciliation Act 1996, against the Private Respondents. The said case has been registered as Misc. Case (Arbitration) no. 23 of 2021, before the Learned District Judge at Alipore, South 24 Parganas. The Learned Court by Order dated 19-03-2021, has passed an ad-interim injunction in respect of the suit property till 20-04-2021, the Private Respondent is contesting the said suit. The said ad-interim order of injunction has been extended from time to time and it is still in force.

 

Photostat copy of the Order dated 19-03-2021, is annexed herewith and marked as Annexure “P-6”

 

8. That the Private Respondent made an application under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act 2002, before the concerned respondent. Since the said respondent did not pass any order, the private respondent has preferred a Writ Petition being WPA no. 4832 of 2022, before this Hon’ble Court, for directing the said Respondent to disposed of the application under Section 14 of the said Act. In the mean-time the said respondent has passed an order dated 28-03-2022 under Section 14 of the said Act. This order passed by the concerned District Magistrate is the order impugned in this writ petition. The petitioner was not given a chance to place his case. It is only on 28-04-2022, one person of the private respondent has given a copy of the said order of the District Magistrate, to the petitioner.

 

Crave Leave to produce copy of the said Writ Petition being WPA no. 4832 of 2022, at the time of hearing, before the Hon’ble Court.

 

9. That the Petitioner communicated the order of the Learned Court below passed in the said arbitration proceeding to the District Magistrate, Alipore, South 24 Parganas.

 

Photostat copy of the said communication is annexed herewith and marked as Annexure “P-7”

 

10. That the Petitioner states and submits that the order dated 28-03-2022, passed by the District Magistrate, South 24 Parganas, in the Application under Section 14 of SERFESAI Act 2002, is violative of the order dated 19-03-2021, passed by the Learned Court in Misc. Case ( Arbitration ) case no. 23 of 2021, when the order of injunction is in force, no order under Section 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act 2002, can be passed.

 

11. That the Petitioner states and submits that the Private Respondents, categorized the Loan Accounts of the Petitioner, as NPA on 01-07-2020, when the directives of the Reserve Bank of India was there. The Private Respondent has no authority to flout the said directives. As such declaration of the Loan account of the petitioner as NPA is bad in law, and therefore the said declaration of NPA cannot exisits.

 

12. That the Petitioner states and submits that the Private Respondent cannot act dehorse the guidelines of the Reserve Bank of India.

 

 

13. That the Petitioner states and submits that the District Magistrate, south 24 Parganas, is bound to follow the order passed by the Learned Court below, in the Arbitration proceeding, since he has passed the order under Section 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act 2002, So he has challenged the authority of the Learned Court which he cannot do. As such the order impugned must be set aside and the Private Respondent must follow the Arbitration proceeding which is now pending.

 

14. That the Petitioner states and submits that he is not a willful defaulter in making payment of the Loan amount. It is only because of the extraordinary pandemic situation which prevented him doing his business. The Private Respondent has failed to appreciate the PAN India situation arising out of COVID-19.

 

15. Being aggrieved by and dissatisfied with the Order dated 28^th March’ 2022, passed by the District Magistrate, South 24 Parganas, under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act 2002, your petitioner beg to move before your Lordship on the following amongst other :-

 

GROUNDS :

 

I.             For that the order dated 28-03-2022, passed by the District Magistrate, South 24 Parganas, in the Application under Section 14 of SERFESAI Act 2002, is violative of the order dated 19-03-2021, passed by the Learned Court in Misc. Case ( Arbitration ) case no. 23 of 2021, when the order of injunction is in force, no order under Section 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act 2002, can be passed;

 

II.           For that the Private Respondents, categorized the Loan Accounts of the Petitioner, as NPA on 01-07-2020, when the directives of the Reserve Bank of India was there. The Private Respondent has no authority to flout the said directives. As such declaration of the Loan account of the petitioner as NPA is bad in law, and therefore the said declaration of NPA cannot exists;

 

III.          For that the Private Respondent cannot act dehorse the guidelines of the Reserve Bank of India;

 

IV.         For that the District Magistrate, south 24 Parganas, is bound to follow the order passed by the Learned Court below, in the Arbitration proceeding, since he has passed the order under Section 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act 2002, So he has challenged the authority of the Learned Court which he cannot do. As such the order impugned must be set aside and the Private Respondent must follow the Arbitration proceeding which is now pending;

 

V.           For that he is not a willful defaulter in making payment of the Loan amount. It is only because of the extraordinary pandemic situation which prevented him doing his business. The Private Respondent has failed to appreciate the PAN India situation arising out of COVID-19;

 

16.                That your petitioner has not moved in any Court or Tribunal on the Self- same cause of action.

 

17.                That there is no other alternative efficacious legal remedy except this writ jurisdiction.

 

18.                That the cause of action and records of this case are lying within the appellate jurisdiction of this Hon’ble Court.

 

19.                That this application is made bonafide and for the end of justice.

Under the aforesaid facts and circumstances, your petitioner most humbly prays that your lordships may graciously be pleased to issue –

 

a)    A writ of and / or in the nature of mandamus commanding the concerned respondent authorities to set aside and quashing the concerned Order dated 28-03-2022, passed in a proceeding under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act 2002.

 

b)   A writ of and / or in the nature of certiorari commanding the concerned respondents to transmit the records of this case before the Hon’ble court so that conscionable justice may be administered to your petitioner upon perusal of the same.

 

c)    Rule NISI in terms of prayers (a) hereinabove,

 

d)   To make the Rule absolute if no cause is shown or if the cause shown is not sufficient.

 

e)    Interim order by directing the concerned respondent not to give any effect of the order dated 28-03-2022.

 

f)     Ad- interim order in terms of prayers (e) hereinabove.

 

g)    Costs and other charges incidental thereto.

 

h)   And other or further writ or writs, order or orders, direction or directions as to Your Lordships may seem fit and proper for the ends of justice.

 

And your petitioner as in duty bound shall ever pray.

 

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AFFIDAVIT

 

I, Aniruddha Guha Roy, Son of Late Bimal Ranjan Guha Roy, aged about 59 years, by faith Hindu, by Occupation Business, residing at 11/C, West Row, Circus Avenue S.O., Kolkata – 700017, Police Station Karaya, District – South 24 Parganas, West Bengal, do hereby solemnly affirm and say as follows:

 

1.       That I am the petitioner of this application and I am well acquainted with the facts and circumstances of the case.

 

2. That the statements made in paragraph No. 1, 2, 3, 5, 6, & 9, are true to my knowledge and those made in paragraphs   4, 7, & 8, are true to my information derived from the records of the case and rest paragraphs are my respectful submission before this Hon’ble Court.

 

 

Prepared in my office                           The deponent is known to me

 

                 Advocate                                Clerk to: Mr.                                                                                                                        Advocate

Solemnly affirmed before me

on this the       day of May, 2022.

 

I certify that all annexures

are legible.

 

               Advocate.

COMMISSIONER

 

DISTRICT :South 24 Parganas.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

 

W.P.A. No.                      of 2022;

 

In the matter of:

An application under Article 226 of the Constitution of India;

And

In the matter of:

Aniruddha Guha Roy

………..Petitioner

-Versus-

The State of West Bengal & Ors.

……Respondents

 

 

WRIT PETITION

 

 

MR. ASHOK KUMAR SINGH

Advocate

Bar Association, Room No.15,

High Court, Calcutta.

(M) 9883070666.

Email : aksinghadvocate@rediffmail.com