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TMI Blog2021 (9) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... irecting the Respondent to implement the Restructuring Package already granted by the Respondent to the Petitioner No.1 vide Letter dated 30/03/2021 (Annexure-C) and to quash and set aside entire arbitrary and illegal measures initiated by the Respondent under the Securitisation Act. (B) Pending admission, hearing and final disposal of this Petition be further pleased to direct the Respondent not to take any further action under the Securitisation Act and to maintain Status Quo in the matter against the Petitioners and the Properties in question. (C) Be pleased to grant ex-parte ad-interim reliefs in terms of Para 19-B as stated supra. (D) To grant any other and further appropriate and just relief(s) as may be deemed necessary & fit on the facts and circumstances of case (E) The cost of this petition may be awarded." 4. The brief facts which are necessary to resolve the controversy raised in this petition are as under: 4.1. The petitioner No.1 was having business operations and dealings with the respondent-Bank. The respondent-Bank sanctioned and granted financial assistance from time to time which was enhanced lastly on 25th July, 2019 and thereafter on 21st Septemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Kariel) passed the following order on 10.08.2021 : "Heard learned Advocate Shri A. S Panesar on behalf of the petitioner. 2. Learned Advocate Shri Panesar draws the attention of this Court to a document dated 30.03.2021 whereby the restructuring proposal of the petitioner had been approved by the Bank and whereas learned Advocate further draws the attention of this Court, to a e-mail by the respondent Bank dated 31.03.2021 at 1:39 pm, whereby the Bank had asked the petitioner to provide fresh guarantee of one Shri Amit Trivedi who had stood as part guarantee for the loan in question. At this stage it is pertinent to mention that Shri Trivedi is also the petitioner before this Court in the present petition. Learned Advocate further draws the attention of this Court to the facilities as mentioned in the restructuring policy more particularly under the title of guarantee where it is clearly mentioned that the guarantee by Shri Amit Trivedi has been complied with on 25.07.2019. In this regard, it is submitted by learned Advocate Shri Panesar that the Bank was restructuring the existing credit facilities with regard to the present petitioner and it was not granting a fresh loan f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sar submitted that the respondent-Bank could not have interpreted the circular of the Reserved Bank of India by not considering the sanction letter as implementation of restructuring of the account of the petitioners by March 31, 2021. It was submitted that the petitioners have complied with all the formalities pursuant to the sanction letter except the guarantee deed of one Mr.Amit Trivedi who had already issued a bank guarantee in the year 2019 at the time of earlier sanction of financial assistance by the respondent- Bank. 5.2. It was further submitted that the respondent- Bank by undue haste issued the notice dated 16.04.2021 under Section 13(2) of the SARFAESI Act instead of permitting the petitioners to replace the guarantee with some other person in place of Mr.Amit Trivedi. It was pointed out that the petitioners have shown their willingness to submit the bank guarantee for some other person namely Mr.Rakesh Jawar. It was also pointed out that Mr.Amit Trivedi was also ready and willing to execute the guarantee deed as required by the respondent-Bank. Learned advocate Mr.Panesar therefore submitted that the respondent Bank could not have cancelled the restructuring sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Petitioner No. 1 with all terms and conditions 31/03/2021 Respondent intimated the Petitioner No.1 for the awaited guarantee of Amit Trivedi (Petitioner No.4) & intimated the time limit of Restructuring Proposal as per Government Guidelines. 06/07/2021 Respondent intimated the Petitioner No 4 about not compliance of the Terms and Conditions of the Sanction letter dated 30/03/2021 and hence the restructuring could not be acceded. Respondent proceed under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security interest Act, 2002. 12/07/2021 Respondent put the properties of the Petitioners for Public Auction and against which Petitioner preferred this Petition while challenging the decision of non provided the restructuring to the Petitioners "07. Now I deal with the Petition Paragraph-wise with a view to bring the correct and true facts to the notice of this Hon'ble Court. 08. With reference to averments averred in the Paragraph No.1, I submit that the Petitioners have given the introduction of the Petitioner No. 1 and the respondent. 09. With reference to averments averred in the Paragraph No. 2, I submit that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Conditions of the Sanctioned Restructuring Proposal dated 30/03/2021. I submit that the proceedings under the SARFAESI Act, 2002 are independent proceedings as the Petitioners were failed in compliance of the accepted Terms and Conditions of the Sanctioned Restructuring Proposal dated 30/03/2021. 16. With reference to averments averred in the Paragraph Nos. 10 & 11, I submit that STATUTORY ALTERNATIVE REMEDY is available to the Petitioner No. 1 if the respondent has not complied the mandatory provisions of the SARFAESI Act, 2002. 17. With reference to averments averred in the Paragraph No. 12, I submit that the Petitioner No. 1 not ready to comply the Sanctioned Restructuring Proposel dated 30/03/2021 and delaying the process. I submit that time period of Sanctioned Restructuring Proposal dated 30/03/2021 was already over as per the circular/notification of the RBI." 6.4. Relying upon the aforesaid averments it was submitted that the petitioners have an alternative efficacious remedy to file an application before the Debt Recovery Tribunal if the petitioners are aggrieved by the notice under Section 13(2) of the SARFAESI Act. It was also pointed out that in view of the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded under ordinary civil law rather than approaching the High Court under Article 226 of the Constitution of India. 6.8. Learned advocate Mr.Sevak further submitted that the petitioners have with open eyes accpeted all the terms and conditions of the sanction letter dated 30th March, 2021 and therefore, now the petitioners cannot make a complaint for such terms and conditions which are not complied with and if the petitioners have any complaint, the alternative remedy of filing a suit for specific performance of such contract is available as well as the petitioners have also not challenged the notice under Section 13(2) of the SARFAESI Act before Debt Recovery Tribunal under Section 17 of the said Act and in view of such circumstances, the petition deserves to be dismissed. 7. Having heard the learned advocates for the respective parties and considering the material on record as well as the provisions of the SARFAECI Act, it appears that the respondent-Bank has issued the sanctioned letter dated 30th March, 2021 permitting the restructuring of the existing facility provided to the petitioner No.1. 8. As per the circular issued by the Reserved Bank of India on 6th August, 2020 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank has issued the sanction letter of March 30, 2021, it would mean that the restructuring of the borrower acount is implemented subject to the fulfilment of the terms and conditions of the sanction letter. 10. Moreover, in the facts of the case, the respondnet-Bank has never informed the petitioners about the cancellation of the sanction letter dated 30th March, 2021 except by issuing the Email dated 31st March, 2021 calling upon the petitioners to submit the guarantee deed of Mr.Amit Trivedi. The petitioners were lightly taken by a shock when the petitioners received the notice under Section 13(2) of the SARFAECI Act dated 16th April, 2021 issued by the Bank considering the account of the petitioner No.1 as NPA account with effect from 27th February, 2021. The respondent-Bank never replied to any of the letters issued by the petitioner till 6th July, 2021. The respondent-Bank by letter dated 6th July, 2021 has also given a vague reason and it would therefore be necessary to reproduce the said letter dated 6th July, 2021 which reads as under : "M/S SHREEJI SALES CORPORATION (Prop. Sh. Bharat Shah) Date: 06-07-2021 (Res) 16, Anand Sagar Apartment, Urmi Society, BPC Road, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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