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SCA/9368/2008 5/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9368 of 2008
=========================================================
HARSHABEN
VASANTKUMAR SHETH - Petitioner(s)
Versus
ASSISTANT
GENERAL MANAGER & 1 - Respondent(s)
=========================================================
Appearance
:
MR
HASMUKH C PATEL for
Petitioner(s) : 1,MR RAJKUMAR CHAUMAL for Petitioner(s) : 1,
NOTICE
SERVED BY DS for Respondent(s) : 1 - 2.
NANAVATI ASSOCIATES for
Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 24/09/2008
ORAL
ORDER
The
petitioner by this petition has challenged the order dated 9.8.2007
passed by the learned Metropolitan Magistrate in Criminal Misc.
Application No.179 of 2007 under Section 14 of the Securitisation
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (hereinafter
referred to as the Act for short), whereby police assistance
is permitted to the Bank to take over the possession of the
property.
Heard
Mr.Patel, learned Counsel for the petitioner and Mr.Chokshi, learned
Counsel for the respondent Bank.
Upon
hearing the learned Counsel appearing for both the sides, it appears
that the principal grievance on the part of the petitioner is that
after the notice under Section 13(2) of the Act, the petitioner had
deposited the amount with the respondent Bank, which has not been
disclosed by the respondent Bank in the application made to the
learned Magistrate under Section 14 of the Act. It has also been
submitted that there are suppression of material facts by the Bank
while seeking order under Section 14 of the Act.
Whereas,
on behalf of the Bank, the contention is that the petitioner had
earlier preferred Special Civil Application No.25053 of 2007, which
was withdrawn with a view to avail of the remedy under Section 17 of
the Act and thereafter, the petitioner has once again preferred the
present petition.
It
further appears that pursuant to the interim order passed by this
Court, certain payments have been made by the petitioner and the
petitioner has made the payment of Rs.3,95,000/. It also appears
that the Bank in the notice under Section 13(2) of the Act had
mentioned the amount of Rs.12,17,561/- as outstanding. Therefore,
if the contention of the petitioner is considered that the
petitioner had deposited the amount of Rs.6,05,000/- after the
notice under Section 13(2) of the Act, and a further amount of
Rs.3,95,000/- was deposited, pending the petition pursuant to the
interim order passed by this Court, substantial amount can be said
as deposited by the petitioner with the respondent Bank after the
notice under Section 13(2) of the Act.
Mr.Chokshi,
learned Counsel appearing for the respondent Bank submitted that the
Bank, as per the affidavit-in-reply filed, has yet to recover the
amount of Rs.7,57,107.79 and the Bank has also no objection in
considering the proposal of the petitioner for settlement of the
amount outstanding. However, he submitted that the petitioner has
up till now not approached the respondent bank and, therefore, the
bank has not considered the same.
Mr.Patel,
learned Counsel appearing for the petitioner, submitted that the
petitioner will submit a detailed proposal to the respondent Bank by
pointing out the calculation of the outstanding amount and the
amount paid by him and the offer for settlement of the amount.
It
further appears that after the notice under Section 13(2) of the
Act, as substantial amount as observed earlier can be said to have
been paid by the petitioner to the respondent Bank, the proceedings
under the Act would not survive and it is only after the proposal of
the petitioner is considered by the respondent Bank and if it is not
found acceptable to the petitioner, the Bank may take a fresh action
under the Act. As the proposal of the petitioner is yet to be
considered by the Bank, no final order deserves to be passed at this
stage.
Hence,
the following orders:-
(a) The
petitioner shall submit a detailed representation to the respondent
Bank with the calculation of the amount payable and the amount paid
and also the details of the amount to be paid by him for settlement
of the account. The aforesaid proposal shall be submitted within
two weeks from today.
(b) The
aforesaid proposal shall be considered by the respondent Bank in
accordance with law and in its banking wisdom and the decision shall
be communicated to the petitioner by Registered A.D. Post.
(c) After
the decision, the petitioner may pay up the amount and if there is
failure on the part of the petitioner to pay the amount, the Bank
may resort to fresh proceedings under the Act, after issuing notice
under Section 13(2) of the Act. At that stage, the rights and
contentions of both the sides shall remain open.
(d) In
view of the aforesaid arrangement, the proceedings under the Act
initiated on the basis of the notice dated 20.3.2003 would not
survive and the consequential order of the Magistrate under Section
14 of the Act would also not survive.
The
petition is disposed of in terms of the aforesaid directions. No
order as to costs.
24.9.2008 (Jayant
Patel, J.)
vinod
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