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TMI Blog2006 (9) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to interest in the demand made by the impugned notice, inasmuch as the Bakijai Officer of the Co-operative Societies has already held the same to be not recoverable. 4.The Bank already having invoked the jurisdiction under Bengal Public Demands Recovery Act, 1913, cannot now take recourse to SARFAESI Act, 2002. 2. The basic facts are not in dispute. The petitioners applied for financial assistance to the respondent No. 2 Bank i.e., the Assam Co-operative Apex Bank Limited in order to facilitate expansion of its tea estates. According to the petitioners the Bank delayed the process of disbursement of the amount by about two years. The financial assistance sanctioned by the Bank was under the following heads : "(a)Working Capital Assistance (hereinafter referred to as 'WCA' for short) amounting to Rs. 95.70 lakh bearing interest at the rate of 14.75 per cent per annum vide Sanction Letter No. ACAB/HO/ADV.TEA/CC/2002/3686-3689 dated 11-5-2002 against the loan proposal for season 2002-03. (b)Medium Term Loan (hereinafter referred to as 'MTL' for short) amounting to Rs. 50,47,315 - bearing interest at the rate of 14.50 per cent per annum vide Sanction Letter No. ACAB/HO/TEA/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. Along with the notice, the Bank has also enclosed the particulars of the credit facilities by way of financial assistance and the security agreements/documents executed by the petitioners as indicated in Schedule A and B excluding pledge of movables. The notice also indicates that as per an agreement executed on 24-5-2002, the properties of the particular tea estate would continue to be mortgaged, charged and hypothecated to the Bank for all loans raised. The relevant particulars of the secured assets have been specifically stated in Schedule-C, which reads as follows : "SCHEDULE 'C' PART I All the hypothecated properties, viz., Current Assets including Stocks. Book Debts, Receivables, Consumable Stores and Spares and Hypothecated Movable Plant & Machinery, etc., mentioned in the documents in SCHEDULE 'B'. (i)The entire crop of green leaf and manufactured tea, (ii)The plants and machineries in the factory, PART II The particulars of the immovable properties mortgaged to the Bank as stated in the documents having reference to the mortgage documents deed in SCHEDULE 'B'. Patta Dag Village Mouza Total lands No. Nos. (Area) 96 24,51,61,62 75,79,81, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of. 12. He further submits that the claim of the petitioners that the proceeding under the Act could not have been initiated simultaneously with the proceeding under the BPDR Act, 1913 is not tenable. He has also produced the copy of the letter dated 22-6-2006 issued by the Bank to the Bakijai Officer conveying the decision of the Board of Directors of the Bank to pursue its remedy under the provisions of the SARFAESI Act of 2002 and requesting the Bakijai Officer not to proceed with the proceeding pending before it. This letter has been stated to be the intimation under section 34 of the Act. 13. I have considered the submissions made by the learned counsel for the parties and the materials available on records. There is no dispute regarding the financial assistance obtained by the petitioners from the Bank. As per the notice under section 13(2), its liability is to the tune of Rs. 1,57,87,892.64 as on 31-5-2005. The notice further indicates its liability for further interest and incidental expenses and cost etc. The notice also clearly indicates the secured assets. On perusal of the schedules to the Bank as well as the copy of the agreement dated 24-5-2002 produced by Mr. Borb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with regard to the statement made in paragraphs 3 to 7 of your objection we had all ready intimated to Bakijai Officer, Kamrup, Metro, Guwahati vide our letter dated 22-6-2006 for withdrawal of the Bakijai Case No. BPDR Case No. B-13/2005 for taking necessary action under SARFAESI Act, and pending of the appeal does not bar for taking any action SARFAESI Act, and as such we offer no comments on the probable outcome/finding in the appeal which is sub-judice. (3)That with regard to the paragraph 8 of your objection, it is not correct as the said provision under the Assam Co-operative Societies Act, is not attracted in the instant case. (4)That with regard to the paragraphs 9 and 10 of your objection, being incorrect, same is denied by us. We say that there is no illegality or infirmity in invoking the provisions under SARFAESI Act, and as such question of withdrawal of notice is not acceptable as the same is within the parameters of law. (5)That in respect of paragraphs 11 to 13 being incorrect, same is denied and disputed by us. It is stated that the subject notices have been issued as per existing legal provisions and guidelines and there is no absurd and untenable claim as av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omewhat similar circumstances, this Court by judgment and order dated 13-9-2006 passed in Barak Valley Tea Co. v. Union of India has dismissed the writ petition. In that case, the decision dated 2-2-2006 of the Madras High Court in D. Ravichand v. Manager, Overseas Bank [2006] 72 SCL 10 has also been referred to. In the decision of the Madras High Court, which has been passed placing reliance on the earlier Division Bench judgment, it has been held that the writ petition of this, nature is pre-mature as the case as in the instant case was only at the stage of section 13(2) notice. The said decision has also dealt with the term 'agricultural land' within the meaning of section 31(i) of the SARFAESI Act, 2002. 20. In view of the above, I am of the considered opinion that the writ petition does not disclose any material warranting interference under article 226 of the Constitution of India. It fails on all counts i.e., the writ petition being premature, there being statutory remedy of appeal in case of initiation of proceeding under section 13(4) of the Act and also on merit, in view of the own admission of the petitioner regarding its liability to the loan amount. In this connection ..... X X X X Extracts X X X X X X X X Extracts X X X X
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