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SCA/712/2010 2/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 712 of 2010
=========================================================
RAMESHWARAM
COTTON INDUSTRIES(GUJARAT) PVT LTD - Petitioner(s)
Versus
DISTRICT
MAGISTRATE & 2 - Respondent(s)
=========================================================
Appearance
:
MR
DEEPAK VYAS for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 29/01/2010
ORAL
ORDER
The
petitioner, by this petition, has challenged the order 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) passed by the
District Magistrate.
Heard
Mr.Vyas, learned Counsel for the petitioner.
The
contention raised on behalf of the petitioner is that no notice was
issued to the petitioner and the order is passed straightaway. It
has also been submitted that if the property was located in
Ahmedabad Metro Area, the learned Metropolitan Magistrate would have
issued notice, whereas the District Magistrate has not issued notice
and, therefore, no parity is being maintained. He also contended
that the principles of audi alteram partem would require that
the opportunity of hearing is required to be given.
As
such on the aspects of hearing, it is not mandatory for the District
Magistrate to issue notice and as per the decision of this Court in
the case of Bank of India v. Pankaj Dilipbhai Hemnani, reported
2007(2) GLH, 326 the exercise of power under Section 14 of the
Act is like a ministerial function. It is only if the District
Magistrate finds that there is some doubt about the compliance of
the provisions of the Act, he may issue notice. Therefore, the
impugned order would not be bad on a mere ground that no notice has
been issued. The parity, which is sought to be canvassed, is also
ill-founded inasmuch as it may be that in a given case, the learned
Metropolitan Magistrate, if he finds that the notice deserves to be
issued, may issue the notice, but thereby, it cannot be said that in
every case the order would fall to ground, merely because notice has
not been issued. The principles of audi alteram partem as
sought to be canvassed is also ill-founded and cannot be accepted.
It also deserves to be recorded that even if it is considered that
any breach of principles of natural justice has resulted, then also
the law has developed further to the extent that unless the breach
is demonstrated to the satisfaction of the Court, the Court may
decline the entertainment of a complaint for breach of principles of
natural justice. Such prejudice has to be as per the law and it
should be a legal breach. No contention has been raised by the
petitioner to that effect, which would result into breach to the
lawful right of the petitioners.
As
per the petitioner, the loan has been taken, the notice under
Section 13(2) of the Act has been issued, and thereafter, if there
is no payment, the Bank is justified in exercise of the power under
Section 13(4) of the Act. Therefore, the aforesaid would be for the
law to the order under Section 14 of the Act. In the event if any
measure is taken for dispossessing the petitioner, the petitioner
has alternative, efficacious remedy of approaching before the
Tribunal under Section 17 of the Act.
The
learned Counsel for the petitioner, lastly contended that the
petitioner is desirous to undergo the revival scheme of running the
factory by retention of 50% amount by the Bank and 50% amount by the
petitioner, therefore, this Court may interfere. I am afraid such
cannot be accepted to upset the order passed under Section 14 of the
Act, more particularly when there is absolutely no basis, nor any
material for revival of the unit as sought to be canvassed. Apart
from that it is for the Bank to decide in its banking wisdom as to
whether such revival should be permitted or not ? No material is
produced by the petitioner to show that it had at any point of time
approached by the Bank. On the contrary, the petition appears to
have been filed in a very casual manner for assailing the order
under Section 14 of the Act and there is no satisfactory material
for the ground of revival as sought to be canvassed.
In
view of the aforesaid, no case is made out for interference. Hence,
rejected.
29.1.2010
(Jayant Patel, J.)
vinod
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