Calcutta High Court
Shree Balaji Sarkar Kutir Private … vs The Chief Judicial Magistrate on 13 March, 2025
Author: Amrita Sinha
Bench: Amrita Sinha
ORDER OD-2
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
WPO/178/2005
SHREE BALAJI SARKAR KUTIR PRIVATE LIMITED
VERSUS
THE CHIEF JUDICIAL MAGISTRATE, CALCUTTA AND ORS.
BEFORE:
The Hon'ble JUSTICE AMRITA SINHA
Date: 13th March, 2025.
Appearance:
Mr. Siddhartha Banerjee, Advocate
Mr. Zeeshan Haque, Advocate
Mr. Rajib Mullick, Advocate
Ms. Shambhavi Jha, Advocate
... for the petitioners.
Mr. Anand Farmania, Advocate
Ms. Indumoli Banerjee, Advocate
... for the respondent No.1, State of WB.
Mr. Pratik Ghose, Advocate
Mr. Avishek Roy Chowdhury, Advocate
… for the respondent No.2.
1. In furtherance to the order passed by the Learned Chief Judicial
Magistrate, Calcutta on 30th September, 2024 in Misc. Case No.157 of
2023 under Section 14 of the SARFAESI Act, the Kotak Mahindra Bank
Limited has taken steps for recovery of the mortgaged asset. The
petitioners claim to be pre-mortgage sub-lessees. It has been submitted
that the subject property is under the control of the Official Liquidator and
the bank cannot take possession of the property without formally
impleading the Official Liquidator in the SARFAESI proceeding.
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2. It has been contended that the initial application under Section 14 of the
SARFAESI Act filed by the bank stood dismissed by the Magistrate vide
order dated 17th January 2024 and after passing the said order the
Magistrate became functus officio. The Magistrate thereafter again took up
the matter for consideration and passed order for taking physical
possession of the secured asset.
3. It has been submitted that fraud has been played on the Court by
suppression of material facts. The application made by the bank never
disclosed the proceeding before the National Company Law Tribunal.
4. Prayer has been made to set aside the order passed by the Learned
Magistrate and restrain the bank from proceeding any further to the order
dated 30th September, 2024.
5. Learned advocate representing the bank raises a preliminary objection
with regard to the maintainability of the writ petition. It has been
submitted that in usual course of events, the petitioner ought to have
approached the Debts Recovery Tribunal and not the High Court under
Article 226 of the Constitution. It has been submitted that the petitioners
are post mortgage sub-lessees.
6. The order dated 25th June 2024 passed by a coordinate Bench of this
Court in WPO/422/2024 in the matter of Kotak Mahindra Bank Limited v.
The State of West Bengal & Others has been relied upon. On a perusal of
the said order, it appears that the Court was pleased to set aside the order
passed by the Learned Magistrate on 17 th January, 2024 and directed the
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Learned Chief Judicial Magistrate to re-hear the application and dispose of
the same within three months. The Official Liquidator was directed to be
called for clearing any doubt or confusion.
7. The Learned Magistrate heard the matter afresh and passed order on 30 th
September, 2024. The bank is taking steps in pursuance thereto.
8. Upon hearing the submissions on behalf of both the parties and on
perusal of the documents placed before this Court, it appears that there
are several disputed questions of facts involved in the present writ
petition. The date of the mortgage, the date of the lease/sub-lease, the
details placed before the Learned Chief Judicial Magistrate at the time of
filing the application under Section 14 of the SARFAESI Act etc., are all
disputed. The provisions of the Insolvency and Bankruptcy Code have
been relied upon. The writ court would not be the competent forum to
adjudicate such disputed issues.
9. The SARFAESI Act prescribes remedy to persons aggrieved by the
measures taken by the secured creditor under Section 13 (4) of the Act to
approach the Debts Recovery Tribunal. The petitioners are aggrieved by
the steps taken by the bank for recovery of its dues.
10. The instant writ petition is disposed of by observing that it will be open for
the petitioners to approach the Debts Recovery Tribunal for relief, if so
advised. If the petitioners approach the Tribunal, then endeavour shall be
taken by the Tribunal to consider their application in accordance with law
at the earliest.
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11. WPO/178/2025 is disposed of.
12. Urgent photostat certified copy of this order, if applied for, be supplied to
the parties upon compliance of all requisite formalities.
(AMRITA SINHA, J.)
S. Kumar / R.D. Barua
