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TMI Blog2016 (11) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act of 2002 against the impugned public notice dated 11-7-2016. All orders both interim and final be passed by the Debt Recovery Tribunal in its wisdom only on merits of the case with reference to facts and law applicable. - S.B. Civil Writ Petition No. 11302/2016 - - - Dated:- 17-10-2016 - Alok Sharma, J. For the Petitioner : Kamlakar Sharma, Madhusudan Rajpurohit For the Respondents : G. K. Garg, V. S. Yadav, Anita Agrawal For the Intervenor : Lokesh Sharma, Sanjay Jhanwar ORDER Under challenge is the public notice dated 11-7-2016 at the instance of the respondent State Bank of India (hereinafter SBI ) for e-auction and sale of immovable properties of a defaulting debtor one Samtel Glass Limited (hereinafter SGL ) under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter the Act of 2002) and the Security Interest (Enforcement) Rules, 2002 (hereinafter the Rules of 2002 ). The case of the petitioner company Samtel Color Limited (SCL) is that albeit it is a group of company of SGL, yet an independent juristic personality having been separately registered under the Companies Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit followed effective April 2013. A reference No.50/2012 was thereupon necessitated at the instance of the petitioner company under Section 15(1) of the Sick Industries (Special Provisions) Act, 1985 (hereinafter the Act of 1985 ) before the Board of Industrial and Financial Reconstruction (hereinafter the BIFR ) seeking registration of the petitioner company s unit as a sick industry. The said reference came to be dismissed as having abated vide order dated 8- 6-2016 on an application by ICICI Bank, one of the lenders of the petitioner company. BIFR s order dated 8-6-2016 was challenged in appeal No.30/2016 before the AAIFR., which is stated to be still pending. The case of the petitioner company is that its financial condition and its appeal before the AAIFR against the dismissal of reference by BIFR as having abated, notwithstanding, the respondent SBI vide public notice dated 11-7-2016 seeks to take away the ground from under its feet by putting land sub-leased to it by SGL on 29-9-2005 to its sale by way of an auction with the attendant consequence of dispossession of the petitioner company therefrom including from the building, plant and machinery no part of which is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 19-5- 2013. It has been submitted that even otherwise it is the case of SGL from its correspondence with the respondent bank that the purported sub-lease dated 29-9-2005 was cancelled and possession of the land was taken from the petitioner company on 26-9-2013. It was submitted that even otherwise the purported sub-lease dated 29-9-2005 in respect of 6.20 hectares in favour of the petitioner company, is with reference to Sections 48, 59A and 70 of the Transfer of Property Act, 1882 subordinate to the pre-existing equitable mortgage by SGL with respondent Bank and others. For the aforesaid reasons, it has been prayed that the writ petition even though without merit be dismissed on the preliminary objection of the availability of alternative statutory remedy available with the petitioner company under Section 17 of the Act of 2002 to challenge the public notice dated 11-7-2016. Heard. Considered. This writ petition was filed on 11-8-2016. Section 17 of the Act of 2002 which at the relevant time provided for a right to appeal was amended on 1-9-2016. In its amended form the misnomer of Right to Appeal under Section 17 of the Act of 2002 was corrected as that of a right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. K.K. Sharma placed reliance on the judgments of the Apex Court in the cases of Gulab Chand Vs. Kudi Lal [AIR 1958 SC 554], Videocon International Limited Vs. Securities and Exchange Board of India [(2015)4 SCC 33], Daya Ram Vs. Sudhir Batham [(2012)1 SCC 333], Thirumalai Chemicals Ltd. Vs. Union of India [(2011)6 SCC 739], Raj Kumar Shivkare Vs. Asstt. Director Directorate Enforcement [(2010)4 SCC 772], Ashok Leyland Vs. State of TN [(2004)3 SCC 1], Hitendra Vishnu Thakur Vs. State of Maharashtra [(1994)4 SCC 602] Jose Da Costa Vs. Bascora Sadasiva Sinai Narcornim [(1976)2 SCC 976] and Mukund Deo Vs. Mahadu [AIR 1965 SC 703]. The sum and substance of the authorities relied upon by Mr. Kamlakar Sharma is that the right of a statutory appeal is a substantive vested right which cannot be retrospectively taken away and cannot similarly be retrospectively conferred. A Right to Appeal , Mr. Kamlakar Sharma submitted, has therefore to be inevitably prospective and not retrospective as it would in the instant case if on the basis of the now amended Section 17 of the Act of 2002 following the amendment of 1-9-2016 the petitioner were to be relegated to the said remedy for a cause of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng it from the land on sub lease with it. This was so held in the case of Harshad Goverdhan Sondagar Vs. International Assets Reconstruction Company Limited [(2014)6 SCC 1] observing that a person other than a borrower if aggrieved of being dispossessed by the secured creditor under the Act of 2002 could not be put back in possession by the Debt Recovery Tribunal in view of the limitation of the language of Section 17(3) of the Act of 2002 then obtaining. The amendment to Section 17 of the Act of 2002 effective 1-9-2016 sought to over come the said jurisdictional limitation of the Debt Recovery Tribunal. It is thus plainly curative in nature as would appear from the background facts hereinbelow detailed. Section 17(1) of the Act 2002 at all times including prior to the amendments effective 1-9-2016 provided that any person including a borrower aggrieved by any of the measures referred to in sub-section 4 of Section 13 taken by the secured creditor or his authorised officer or representative could apply to the Debt Recovery Tribunal having jurisdiction in the matter within 45 days from the date of which the impugned measure had been taken. Thus any aggrieved person was statutoril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per force be retrospective. A similar view has been taken by the Apex Court in the case of ITW Signode India Ltd. Vs. Collector of Central Excise [(2004)3 SCC 48] as also in the case of Vijay Vs. State of Maharashtra [(2006)6 SCC 289] wherein it has been held that general presumption of statutes and amendment thereto being prospective in nature is overturned where the amendment to an existing statute is curative or clarificatory in nature. Such amendments are necessarily retrospective in nature. Section 17 of the Act of 2002 as presently obtains allows the petitioner company as a person aggrieved to lay an application under 17 of the Act of 2002 against the public notice dated 11-7- 2016 and seek restoration of possession of land admeasuring 6.20 Hectares in Khasra No.67, 68, 71 of which symbolic possession has been taken by the respondent bank on 19-6-2013. No doubt Section 17 of the Act of 2002 allows a 45 day period for approaching the Debt Recovery Tribunal against any of the measures under Section 13(4) of the Act of 2002 taken by a secured creditor. But that should not be an obstruction in the facts of the case where the right to move an application for effective relief ..... X X X X Extracts X X X X X X X X Extracts X X X X
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