C.W.J.C. No………………… of 2020 In the matter of an application under article 226 of the constitution of India AND In the matter of M/S Shivshakti General and kirana Store through its proprietor Ms. Suresh sah at Post- Rasulpur Korigawn via
2.The Chief manager cum Authorized officer, State Bank of
India, Regional Branch Office, Samastipur 3.The branch manager, State Bank of India, Bhagwanpur Branch , Poorvi bazar, Bhagwanpur, District - Vaishali
………………….. Respondents
To, The Hon’ble Mr. K Vinod Chandran, the Acting Chief Justice of the High Court of Judicature at Patna and his companion Justice of the said Hon’ble High Court. The humble petition on behalf of petitioners above named.
Most Respectfully Sheweth
1. That by way of this writ application petitioner seeks
indulgence of this Hon’ble Court for issuance of an 3
for the following reliefs:- (i) For issuance of appropriate Writ(s) / Order(s) / Direction(s) for quashing the 'Order of Recovery' vide Requisition certificate by the certificate officer of the district of Vaishali, hajipur dated 07.04.2018 for the recovery of amount of Rs.1,16,482 and Rs.9,98,600 simultaneously against Rs. 10 lac loan amount sanctioned by Respondent bank @The State Bank of India in the year 2015 in the form of cash credit limit wide account number 3501 817 2596.
(ii) For issuance of direction to the Respondent Bank to
give opportunity to the petitioner to repay the amount in equal installment in appropriate years. (iii) For any other relief/reliefs for which petitioner is entitled for. 4
2. That the Petitioner further humbly states that the subject
matter of challenging in the instant application is a possession notice issued by and/or on behalf of the respondent in purported exercise of power allegedly confirmed upon them under section 13(4) of the Securitization and Reconstruction of Financial Assets and enforcement of security interest act , 2002 and therefore, this Hon'ble court possess requisite jurisdiction to try, entertain and adjudicate all the issued involved in the instant application.
3. That the Petitioner is a Citizen of India and resides well
within the territorial jurisdiction of this Hon’ble High Court. 5
4. That the petitioner planned to start a poultry firm
decided to be named and styled as MS Shiv Shakti general and kirana store at Vaishali , for that the petitioner urged respondent Bank@State Bank of India to provide loan and in course of that the said Bank sanctioned rupees 10 lakh as loan in the year 2015 in the form of cash credit limit vide account number 3501 8172 596 against mortgaged which is submitted as an agricultural land which is situated in thana no. 81, khata no. 238, khesra no. 723 bearing area of 02 katha 05 dhur and 19.5 dhurki.
A photocopy of loan sanctioned document
annexed hereto and marked as Annexure_
to this petition 6
5. That the petition who were sanctioned loan by the said
bank as obliged to maintain the due discipline guidelines while accepting the said amount of loan as per as SARFAESI Act
6. That the that the petitioner for the humbly submitted
that due to some unavoidable circumstances and due to some misfortune petitioner's health position become poor and due to which h could not become able to run the cash credit account properly due to that bank has released some amount by closing the fixed deposit of Rs 100000 of the petitioner and when petitioner become fit then he concerned with the bank with request to give permission to run the said cash credit account and as 7
per direction of the bank he has deposit Rs 65000 in the
account and also has deposit Rs 1 lac as fixed deposit despite that he has not been given permission to avail the benefit of cash credit account therefore petitioner filed a detail representation before the authority concern
A Photocopy of representation and deposit amount annexed herewith and marked as Annexure- to this Petition.
7. In order to maintain faith and relationship with the
respondent bank , the petitioner had initiated several efforts. One of the major efforts what he did was further deposited the amount of Rs 50000/- in his said account but despite so many positive efforts taken up from the petitioner side, the respondent bank hadn't taken any single positive steps thereof. It is to be considered that the petitioner is a law abiding person and tries hard to 8
manage the amount to settle his account but
respondents are not considering his efforts at this cost.
A Photocopy of further deposited amount of Rs 50000 is annexed herewith and marked as Annexure- to this Petition.
8. That the petitioner was keep trying his level best to settle down the issue arose in regard of loan account as the Hon'ble court can able to acknowledge it by going through abovesited and pointed therein , during this course of time meanwhile the impugned notice of possession under section 13 (4) off the the securitization and reconstruction of financial assets and enforcement of security interest act 2002 has been issued, that too without any issuance of notice under section 13 (2) of the securitization and reconstruction of financial assets and enforcement of security interest Act 2002 which is 9
quite apparent from bare reading of the possession
notice. Also no notice under section 13(4)has been served in front of him , rather he has come to know of the said notice as the same has been affixed on the wall of his establishment in place of the land which has been allegedly taken into possession.
A Photocopy of the notice dated
23.08.2016 is annexed herewith and marked as Annexure- to this Petition.
9. That the said possession notice dated 23.08.2016
abovesited is all about the failure of the borrower to repay the amount of Rs 9,36,256 + Int within 60 days from the date of receipt of the said notice. The said notice is hereby given to borrower and the public in general that the undersigned has taken possession of the property described herein below in exercise of power on him under section 13(4) of the said act read with rule 10
8 of the said rules on this 23rd day of August of the year
2016
10. After acknowledgment of the said notice the petitioner
approached respondent and shared his ongoing problem with the respondent so that some fair way will be found after heavy conservation but they didn't respond adequately to anything positive towards mediation . Even the representation and the fear endeavor of the petitioner to settle his account has not been considered by the bank
11. It is submitted that with so many efforts taken by the
petitioner although the respondent bank initiated the process to release the amount under SARFAESI act 2002 11
from the land of the Petitioner which is situated in
thana no. 81 , khata no.38 ,khesara no 723 bearing area 2 katha 5 dhur and 19.5 dhurki of deed no 4773, mortgaged under the account number 35018 172596.
12. It is submitted that the petitioner had already filed a
SARFAESI appeal numbered 182/ 2016 in the year 2016 against Respondent bank before THE DEBT RECOVERY TRIBUNAL, PATNA under section 17 of SARFAESI ACT 2002 for requesting the learned court to sought some relief to repay the amount in equal installments and also quashing the notices under the provisions of section 13(4) of SARFAESI ACT being illegal , arbitrary, unlawful and void. Therein the petitioner also requested for some interim relief of this restraining the respondent bank and its authority from any further action against the petitioner and the mortgaged agriculture land on account of any liability pertending to the loan to which action under the impugned order dated 28.08.2016 relates during the pregnancy of the instant application. 12
13. That it is further submitted that on account of
above-mentioned ongoing case SA no. 182/2016 before the debt recovery tribunal at patna , the learned court has ordered against the petitioner for recovery of said loan amount of Rs 1, 16, 482 and Rs 9,98,600 included court fee and is very much liable to recover according to section 6 of Bihar and Orissa Public Demands Recovery Act, 1914. Also the learned court ordered to issue notice against the petitioner according to section 7 of the said act.
A photocopy of impugned order dated 7.4.2018
For recovery is annexed herewith and marked as
Annexure _ to this petition
14. That it is humbly submitted that as far as RBI guidelines
no agricultural land can be mortgage to advance the loan ,there for, the respondent has itself violated the 13
guidelines formulated by RBI ,no amount of the alleged
loan amount in question can be released under the Securitization and construction of Financial Assets and Enforcement of Security Interest act 2002 by the Respondent and same is void and liable to be curtailed with immediate effect.
15. That it is humbly submitted that as far as RBI guidelines
no agricultural land can be mortgage to advance the loan ,there for, the respondent has itself violated the guidelines formulated by RBI ,no amount of the alleged loan amount in question can be released under the Securitization and construction of Financial Assets and Enforcement of Security Interest act 2002 by the Respondent and same is void and liable to be curtailed with immediate effect.
A photocopy of RBI guidelines for above
effect is annexed herewith and marked
14
As Annexure _ to this petition.
16. That it is humbly submitted that the agricultural land
can not be attached in SARFAESI act , According to section 31(I) of the act since there is no agricultural loan on the agricultural land it cannot be attached to recover any commercial loan ,further since the SARFAESI act does not define agricultural land under the meaning of it and has to be deducted that the land used for primary activity of the cultivation cannot be attached for recovery since there is no direct mortgage on the agricultural land.
17. That it is humbly submitted that the agricultural land
can not be attached in SARFAESI act , According to section 31(I) of the act since there is no agricultural loan on the agricultural land it cannot be attached to recover any commercial loan ,further since the SARFAESI act 15
does not define agricultural land under the meaning of it
and has to be deducted that the land used for primary activity of the cultivation cannot be attached for recovery since there is no direct mortgage on the agricultural land.
Section 31 of SARFAESI ACT -Provisions of this Act not
to apply in certain cases.- The provisions of this Act shall not apply to-
(a) a lien on any goods, money or security given by or
under the Indian Contract Act, 1872 (9 of 1872 ) or the Sale of Goods Act, 1930 (3 of 1930 ) or any other law for the time being in force;
(b) a pledge of movables within the meaning of section
172 of the Indian Contract Act, 1872 (9 of 1872 );
(c) creation of any security in any aircraft as defined in
clause (1) of section 2 of the Aircraft Act, 1934 (24 of 1934 ); 16
(d) creation of security interest in any vessel as defined in
clause (55) of section 3 of the Merchant Shipping Act, 1958 (44 of 1958 );
(e) any conditional sale, hire- purchase or lease or any
other contract in which no security interest has been created;
(f) any rights of unpaid seller under section 47 of the Sale
of Goods Act, 1930 (3 of 1930 );
(g) any properties not liable to attachment or sale under
the first proviso to sub- section (1) of section 60 of the Code of Civil Procedure, 1908 (5 of 1908 );
(h) any security interest for securing repayment of any
financial asset not exceeding one lakh rupees;
(i) any security interest created in agricultural land;
1. (j) any case in which the amount due is less than twenty per cent of the principal amount and interest thereon. 17
18. That the Petitioner further humbly states that the no
application of the surface act over the land in question, the respondent Bank is going to executes its illegal designs to extract the unlawful, arbitrary and illegal demands under the provision of the SARFAESI ACT
19. That therefore the action of the Respondents are illegal
and arbitrary which infringes the Petitioners fundamental right guaranteed under Article 14, 21 and 300A of Constitution of India.
20. That the petitioners have got no other alternative and
equally efficacious remedy than to move before this Hon’ble Court in extraordinary writ jurisdiction.
21. That the Petitioner states that it has made out a prima facie case hereinbefore. The balance of convenience is also heavily in favor of the petitioner. 18
22. That the petitioner states and submits that unless the order as prayed in paragraph-1 to this petition is passed the petitioner shall suffer irreparable loss and injury.
23. That the petitioner has not moved earlier before this Hon’ble Court for the relief sought in paragraph-1 to this application. It is therefore most humbly prayed that your Lordships may graciously be pleased to issue quashing of Recovery order by this writ application and allow some bonafide relief after hearing the parties be pleased to make the Rule absolute. and/or Be further pleased to pass such other order/(s) as your Lordships may deem fit and proper in the facts and circumstances of this case. 19
And During pendency of the present Writ Application, the Respondent may be restrained to draw fresh lots / issue LOI. And for this the petitioner shall ever pray. 20 21
