IN THE HIGH COURT OF JUDICATURE AT PATNA (Civil Writ Jurisdiction Cases) C.W.J.C No.

Of 2011 In the matter of a writ petition under Article And In the matter of: MAHESH Enterprises, through proprietor Ram Prasad Sharma, situated at Kankarbagh Colony mor, Mohalla & P.O. & P.S. Kankarbagh, Patna-20, VERSUS 1.RICH Bank, 4th Floor Block-A, Regional Office, Complex, New Dak Bungalow Road, Patna. 2.Branch Manager, RICH Bank, Fraser Road, Patna. RESPONDENTS To, The Honble Mrs. R. M. Doshit, The Chief Justice of the High Court of Judicature at Patna humble and writ Her Companion on Justices of the said Honble Court. The petition behalf of the Petitioner above named; Most Respectfully Sheweth:1. That petitioner this for is a writ of petition writ on of behalf of the and issuance certiorari Maurya Lok DistrictPatna. PETITIONER 226 of the Constitution of India

prohibition or writs in the nature thereof or any other

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appropriate writ/order/direction, quashing the notice dated 2.12.06 sent through ordinary process U/S 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the Act), whereby and where under the petitioner was directed to discharge in full the liability within 60 days from the date of notice. True copy of in is the the annexed Notice name dated of 2.12.06 petitioner

herewith

and marked as Annexure-1 to this writ petition and made part of it. 2. That the petitioner is a firm. Its proprietor is Ram Prasad Sharma, who took loan from the respondent bank after mortgaging the immovable property mentioned in the impugned notice. 3. That the following substantial questions of law are involved (A) Whether in or this not of writ the petition respondent which bank requires has serious the of the the consideration by this Honble court:violated mandatory provision of Section 13(3-A) of Securitisation and Reconstruction Security representation Financial Act, 2002 6.3.11 Assets in of not the and Enforcement off of Interest disposing proprietor

dated

petitioner made against the impugned notice? (B) Whether or not the respondent bank has acted not only unfairly sending but the also muscle against men the armed provision with of the for Act in rifles giving

threatening and for forcibly dispossessing the proprietor of the petitioner from the properties mentioned in the impugned notice? 4. That petitioner could not repay the loan but after receiving the notice on 28.12.06 he filed representation

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before the Branch Manager, RICH Bank, Fraser Road, Patna on 6.3.11. The petitioner stated in his representation, inter alia, that his business could not run properly and therefore his economic condition was very week. It is further stated that on 1st March 2011 the petitioner deposited Rs.20,000/only in the Branch. It is further stated that Rs.2,00,000/only is fixed deposited in the name of Smt. Kiran Kumari W/O Ram Prasad Sharma, that amount should be adjusted towards the loan. It is further stated that the remaining amount of loan would be paid by selling an immovable property. It is also the stated rest that even of is if loan also the loan be that is not completely in monthly the satisfied out of the sale of the immovable property, then amount It would stated paid installments. considering

economic condition of the proprietor of the petitioner for grant of some relief in the interest. It is needless to say that the representation dated 6.3.11 was duly received on 7.3.11 by the Branch Manager and in Token thereof he signed the carbon copy of the representation and also put the seal of the Bank on it. True copy of the receipt dated 1.3.11 showing the deposits Rs.20,000/-only petitioner by of the

and the true copy of RICH are as

the representation dated 6.3.11 before the Branch Manager Bank, Fraser Road, Patna

annexed herewith and marked this writ petition. 5.

Annexures-2 & 3 respectively to That to the utter surprise of the petitioner the muscle man armed with rifles came at the residence of the proprietor of the petitioner, namely, Ram Prasad Sharma and

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threatened to dispossess the petitioner from the immovable property mentioned in the impugned notice. 6. That it is surprising that no Final Notice for taking possession of the immovable property mentioned in the impugned notice was ever served upon the petitioner or its proprietor. 7. dated That it is also surprising that the representation 6.3.11 was not disposed off and the authorities concerned did not inform the petitioner or its proprietor regarding their decision on the representation dated 6.3.11. 8. That from the aforesaid facts it is clear that respondents did not decide the representation dated 6.3.11 of the proprietor of the petitioner, which should have been decided and communicated as per the section 13(3-A) of the Act. For the convenience of the Honble Court the relevant portion is quoted below:Section 13(3-A) of the Act If, on receipt of the notice under sub-section (2), the borrower makes any representation or objection and if the secured creditor or comes to is the not the or conclusion of the that such of representation objection or

acceptable or tenable he shall communicate within one week receipt for such representation of the objection reasons none acceptance representation

objection to the borrower: Provide that 9. take That the respondent authority have not complied the aforesaid provision of law and thus they are not entitled to actual/physical possession of the properties in question through muscle man or through any pother process that too without any prior notice. 10. That the respondent authorities traveled beyond of Financial Assets and Enforcement of their legal bonds as envisaged under the Securitisation and Reconstruction Security Interest Act, 2002, and thus, the writ petition is

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maintainable because their actions in sending muscle man for forcible causing 11. dispossession serious from to the the mortgaged legal property of is the prejudice rights

petitioner in respect of the property in question. That there is no other alternative remedy equally efficacious and adequate to redress the grievances of the petitioners, therefore, they are invoking the extra ordinary jurisdiction of writ of the Honble Court to seek justice. It is needless is the to Dwarf. say that bank the at is Goliath and the must using petitioner violating Therefore law and Honble the same Court time

interfere in such cases where the authorities are flagrantly statutory muscle man to forcibly dispossess the petitioner and its proprietor. Such action is not permitted under the aforesaid Act. Recently the Supreme Court has deplored such illegal actions on the part of the bank. 12. That the petitioner has not moved earlier before this Honble Court against the impugned notice or for the reliefs as prayed in this writ petition. It is therefore prayed that Your Lordships may graciously be pleased to issue rule nisi to the respondents to show cause as to why the petitioner should not be granted the reliefs as prayed in para-1 of the writ petition, and after hearing the parties concerned allow this writ petition with cost; AND During pendency of the writ petition stay the operation in of the impugned notice the contained Annexure-1 prohibit

respondent authority from taking physical possession of the properties mentioned in the impugned notice;

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AND/OR Pass any such other order/orders as your Lordships think fit. And for this the petitioners shall ever pray.

AFFIDAVIT I, Ram Prasad Sharma, proprietor Districtof MAHESH do Enterprises, solemnly situated at Kankarbagh Colony more, Mohalla & P.O. & P.S. Kankarbagh, 1. Patna-20, Patna, hereby affirm and state as follows:That I am proprietor of the Petitioner in this writ petition and as such am well acquainted with the facts and circumstances of the case. 2. That the statements of facts stated in this writ petition have been read over and explain to me in Hindi, which I fully understood and found them correct. 3. and 12 That the statements made in Para No.2, 4 to 7, 11 are true to my knowledge and belief and the statements made in Para No.1, 3, 8 to 10 are by way of submissions to this Honble Court. 3. That annexures are true copies of their respective originals.

IN THE HIGH COURT OF JUDICATURE AT PATNA (Civil Writ Jurisdiction Cases) C.W.J.C No. MAHESH Enterprises. RICH Bank & Ors. Subject Matter: Sl.No. 1. 2. 3. Annexure-1 Annexure-2 Particulars of document Pages 1-8 9-12 13-x Of 2011

PETITIONER VERSUS RESPONDENTS INDEX

4.

Annexure-3

5.

A writ petition with an affidavit. True copy of the Notice dated 2.12.06 in the name of petitioner. True copy of the receipt dated 1.3.11 showing the deposits of Rs.20,000/-only by the petitioner. True copy of the representation dated 6.3.11 before the Branch Manager RICH Bank, Fraser Road, Patna. VAKALATNAMA

14-x

IN THE HIGH COURT OF JUDICATURE AT PATNA (CIVIL WRIT JURISDICTION) C.W.J.C. No. MAHESH Enterprises. RICH Bank & Ors. VERSUS RESPONDENTS SYNOPSIS The petitioner is and Firm. The firm took loan and failed Reconstruction of Financial Assets to and OF 2011 PETITIONER

repay. The respondent bank issued notice U/S 13(2) Securitisation

of the

Enforcement of Security Interest Act, 2002, without complying the provisions of 13(3-A) of the said Act. The proprietor of the petitioner made representation dated 6.3.11, before the respondent bank which was duly received on 7.3.11. But the respondent bank without disposing of the representation sent muscle men armed with rifles to dispose the petitioner and its proprietor from the mortgaged property. No prior notice was given for such arbitrary, unfair and illegal act. The respondent by Assets bank the has traveled beyond and its jurisdiction of Act, conferred Financial Securitisation Reconstruction

and Enforcement of Security Interest

2002, and acted illegally. Hence the petitioner is filing the present writ petition.