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TMI Blog2020 (5) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal.' The impugned order dated 30.07.2019 is hereby quashed. However, the respondent No.2 / Bank shall be free to take recourse to other remedies available under the law for realisation of debts. The writ petition stands allowed. - HON'BLE JUSTICE S.C. SHARMA HON'BLE JUSTICE SHAILENDRA SHUKLA For the Appellant : Mr. Aniket Naik, learned counsel For the Respondent : Mr. Abhishek Tugnawat Learned Government Advocate JUDGMENT (Passed on this 29th Day of May, 2020) Undisputedly, in the present case, proceedings have been initiated in respect of agriculture holding. 02. The aforesaid fact has not been disputed by the respondent No.2-Jila Sahkari Kendriya Bank Maryadit, Khargone. In the reply filed by the respondent No.2, it has been narrated that the matter relates to agriculture holding only. 03. This Court in the case of Anil Karma and another Vs. State of M.P. and another (W.P. No.1463/2019) decided on 11.09.2019 has held as under:- Heard learned counsel for the parties at length and perused the record. In the present case, the undisputed facts reveal that the petitioners are borrowers and guarantors in respect of the loan advanced by respondent no.2-Jila Sahkari Ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under this sub- section (1) of Section 17]. (2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder. (3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management of the business to the borrower or restoration of possession of the secured assets to the borrower, it may by order, decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract Act, 1872 (9 of 1872; or the Sale of Goods Act, 1930 (3 of 1930) or any other law for the time being in force; (b) a pledge of movables within the meaning of section 172 of the Indian Contract Act, 1872 (9 of 1872); (c) creation of any security in any aircraft as defined in clause (1) of section 2 of the Aircraft Act, 1934 (24 of 1934); (d) creation of security interest in any vessel as defined in clause (55) of section 3 of the Merchant Shipping Act, 1958 (44 of 1958); (e) any conditional sale, hire- purchase or lease or any other contract in which no security interest has been created; (f) any rights of unpaid seller under section 47 of the Sale of Goods Act, 1930 (3 of 1930); (g) any properties not liable to attachment (excluding the properties specifically charged with the debt recoverable under this Act) or sale under the first proviso to sub-section (1) of section 60 of the Code of Civil Procedure, 1908 (5 of 1908); (h) any security interest for securing repayment of any financial asset not exceeding one lakh rupees; (i) any security interest created in agricultural land; (j) any case in which the amount due is less than twenty per cent of the principal amount and intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (zf) 36. Thus, security interest cannot be created in respect of property specified in Section 31. 46. In the present case, security interest was created in respect of several parcels of land, which were meant to be a part of single unit i.e. the five star hotel in Goa. Some parcels of land now claimed as agricultural land were apparently purchased by the debtor from agriculturists and are entered as agricultural lands in the revenue records. The debtor applied to the revenue authorities for the conversion of these lands to non-agricultural lands which is pending till date due to policy decision. 47. It is undisputed that these lands were mortgaged in favour of the creditor under a deed dated 26.02.2010. Obviously, since no security interest can be created in respect of agricultural lands and yet it was so created, goes to show that the parties did not treat the land as agricultural land and that the debtor offered the land as security on this basis. The undisputed position is that the total land on which the Goa Hotel was located admeasures 182225 sq. mtrs. Of these, 2335 sq. mtrs. are used for growing vegetables, fruits, shrubs and trees for captive consumption of the hotel. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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