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SCA/15420/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15420 of 2008
=========================================================
RAMESHCHANDRA
M VAKHARWALA & 3 - Petitioner(s)
Versus
AUTHORIZED
OFFICER CENTRAL BANK OF INDIA - Respondent(s)
=========================================================
Appearance :
MR
UTKARSH B JANI for Petitioner(s) : 1 - 4.
None
for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 29/12/2008
ORAL
ORDER
The
petitioners by this petition has challenged the action of the Bank
under the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002, ( the Act for
short) by issuance of the Notice under Section 13(2) of the Act as
well as Notice under Section 13 (4) of the Act.
Upon
hearing Mr. Jani for the petitioner, it appears that the principal
contention raised on behalf of the petitioners is that the
petitioners have replied to the Notice under Section 13(2) of the
Act. However, the Bank has not taken any decision nor the Bank has
communicated any decision to the petitioner and prior thereto, the
action under Section 13(4) of the Act is contemplated to be taken
and therefore, this petition.
It
is true that as per Section 13(3A) of the Act, it is required for
the Bank to take the decision. However, after the decision is taken
for ventilating the grievance against such decision, the petition is
not maintainable, but only after the measure is taken under Section
13(4) of the Act, the grievance can be raised by the petitioners by
way of an Appeal under Section 17 of the Act.
As
the petitioners have not produced the decision of the Bank, this
Court is not in a position to examine the said aspects. Further, the
fact remains that the matter is pending before the DRT in the
Original Application made by the Bank for recovery of the amount and
the petitioner has also filed counter claim.
Mr.Jani,
learned counsel appearing for the petitioners additionally contended
that as the counter claim is pending before the DRT, the Bank be
prohibited from taking any action whatsoever under the Act.
I
am afraid such can be accepted by this Court, more particularly when
the matter is at large pending before the DRT. If the petitioners
have any right in law, it may move the DRT. The pendency of the
Original Application or the counter claim therein cannot operate as
absolute bar to the Bank from resorting to the provisions under the
Act unless it is prohibited by express order of the Forum, which is
DRT who is seized with the proceedings.
Hence,
the present petition is dispose of with the observation and
directions that if the Bank has not considered the reply of the
petitioner dated 14.10.2008, copy whereof is produced at
Annexure-A/2, which has been received by the Bank by R.P.A.D post,
the same shall be considered by the Bank and the decision shall be
communicated to the petitioners by RPAD Post. Till the aforesaid
decision is taken by the Bank and communicated to the petitioners by
RPAD post, no action shall be taken by the Bank under Section 13(4)
of the Act for taking possession of the property in question. It is
also observed that if after the aforesaid exercise is undertaken and
the decision is communicated to the petitioners, if the petitioners
have any grievance against the said decision, the petitioners may
approach to the DRT in accordance with law.
(JAYANT PATEL, J.)
*bjoy
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